Self-defence

Problems with requirements

Is the force necessary?

Questioning for the jury may be difficult for them to decide, for example, whether a victim has to retreat before using force R v Bird.

S76(6a) CJA 2008 now makes it clear that a person is not under a duty to retreat when acting for a legitimate purpose. But the possibility for retreat should also be considered in deciding if force was necessary

Amended by s148 Legal Aid Sentencing and Punishment of Offenders Act 2021

Householder Cases

A householder is morally justified in using force to defend others in their house and their property against an intruder. But question remains

  • is a householder morally justified in using any force
  • is a householder acting wrongfully in defending themselves or their property, whatever the force used?

S76(5A) States householder cases, the degree of force will not be regarded as reasonable only where it was 'grossly disproportionate'. The law now supports the view that a householder has a moral right to defend themselves or their property to a degree

Terms ' reasonable', 'disproportionate' and 'grossly disproportionate' have not been defined in the statute, so will require judicial interpretation when cases come to court

Also applies to situations where a building has a dual purpose such as adjoining residential part. But this extended defence not available to customers who happen to be in the shop and use force,

Mistaken Belief

Defence is available even where the mistake the defendant made is unreasonable. It is too generous to judge defendants on the basis of facts they unreasonably believe to be true.

If the defence is not allowed where defendant honestly believed they about to be attacked then the defendant is at risk of being convicted when they really were not at fault.

There is a need to protect the innocent victim whom the defendant has assaulted due to a mistake belief

Pre-emptive Strikes

Can act to prevent force. It is not necessary for an attack to have started. Sensible rule since it would be ridiculous if people had to wait until they were stabbed before being allowed to defend themselves

Attorney General Reference No 2 of 1993 held that someone who who fears an attack can make preparations to defend himself

Morality Issue

Limits have been set on what force can be used to defend themselves preventing people from taking the law into their own hands.

If the limits are exceeded then self-defence cannot be used and the person who uses force will be at fault. However, the level of fault can be taken into account by judged when passing a sentence.

Can be particularly unfair for a person who kills another while claiming to act in self-defence. If convicted they must be given a life sentence. However, their level of fault may be reflected in their tariff period

All or nothing defence

Although the level of the defendants fault can be reflected in sentencing, critics say that self-defence is an 'all of nothing defence.

The defendant either

  • succeeds completely with the defence and is found not guilty
  • fails and is found guilty

Argued that there should be a partial defence where the use of force was justified but the defendants used excessive force in circumstances.

Relevance of defendants characteristics

Should the defendants characteristics be taken into account in deciding if they thought that they need to defend themselves.

Statutory Confusion

The Criminal Justice and Immigration Act 2008 passed common law to defy self-defence. S76(6) requires the amount of force to be used as reasonable. However, the Crime and Courts Act 2013 gives wider defence to householders where an intruder enters their property - not be regarded as disproportionate unless "grossly disproportionate".

The case of Ray tried to assist judges summing up to the jury what they should consider. Necessary to mention wider discretion to householders.
Raises questions

  • Should judges use everyday language to help the jury decide whether the degree of forced has been proven unreasonable?
  • Would it be helpful to spell out the kind of circumstances that might show degree of forced used by householders as reasonable?
  • Should every case use a common formula of words?

Reasonable force and public protection

R v Williams - Victim was stabbed by the defendant in the arm and stole necklace. Defendant and group found victim and stabbed him. Neither common law of defence of self-defence nor crime prevention under Criminal Law Act 1967 s3 allows use of force to recover stolen property. s3 only available in relation to preventing crimes in progress.

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  • Cases of R v Martin - D has psychiatric evidence has a condition where he perceived much greater danger that the average person was not relevant to question of reasonable force.
  • R v Cairns followed in deciding that psychiatric condition was not taken into account (paranoid schizophrenia) which may have caused delusions about attack
  • R v Oye

If a shopkeeper chases a robber out of his shop chances court will not deem robbery complete and allow for reasonable self-defence