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SELF-DEFENCE, ANALYSIS - Coggle Diagram
SELF-DEFENCE
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Was the threat imminent?
Malnik v DPP- Carrying a weapon to a person's house with a violent history wasn't sufficiently imminent enough of a threat. D had voluntarily put themselves in that position
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CRIMINAL LAW ACT 1967- This provides 'a person may use such force as is reasonable in the circumstances in the prevention of crime'
S43 of CRIME AND COURTS ACT 2013- has amended S76 of CRIMINAL JUSTICE AND IMMIGRATION ACT 2008 to allow a wider defence to householders
To be a householder case, the force must be used by the D while in, or partly in, a building that is a dwelling, D must not be a trespasser and D must have believed the V to be a trespasser
- CRIMINAL JUSTICE AND IMMIGRATION ACT 2008
S76
Explains the degree of force which can be used, it applies whether the D is relying on the common law defence of self defence or the statutory defence of prevention of crime
Whether force is reasonable is decided by reference 'to the circumstances as D believed them to be- adds further guidance but doesn't change the law
Under 76(5) D can't rely on a mistake belief caused by voluntary intoxication. If it's excessive the defence fails- Clegg
ANALYSIS
Sex discrimination?
most D's who use this defence are male as they are mainly concerned with non-fatal offences against each other
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Use of excessive force
Where the D uses excessive force, the defence can't be used. However, there have been suggestions that the jury should consider 'some' of the force used was lawful, and that this should be taken into account in subsequent sentencing
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Mistaken belief
The law is lenient on people who make a mistake, but who honestly believe they are at risk. This is potentially contrary to Article 2 ECHR right to life
Degree of force
The clarification of the law as a result of the CRIMINAL JUSTICE AND IMMIGRATION ACT 2008 means that the degree of force that is relevant has to be reasonable in the circumstances, but the reasonableness is judged against what the D believed the circumstances to be