Self-defence

• Necessity of force- Criticism

  Jury have to decide whether the force used was necessary, this can be a difficult decision and D may have made an honest but silly mistake

  Williams 1987- Man punched woman thing she was going to hurt him, he was allowed this defence
• However- necessity of force

  It would be unfair to find someone criminally liable when they honestly believed they were doing the right thing. However, the law will not allow a mistake due to intoxication and this is sensible
• Pre-emptive Strike- Criticism 


  The law allows for D to act first to defend himself rather than wait for V to attack them first. This could be too lenient as D may misunderstand V's actions when V had no such intent
• However, Pre-emptive strike 


  Unrealistic to expect the defendant to wait to find out how severe the attack on them is to. It may even be a potentially fatal attack so D is entitled to strike first to prevent this providing that the force is proportiponate,
• Excessive force- Criticism 


  If the jury believe that D has used excessive forced the defence will fail. The problem is that in the "heat of the moment" it might be difficult for D to gauge how much force to use (R v Martin, R v Clegg)
• However- Excessive force 


  If D is able to use as much force as he wishes they may choose to deliberately harm the victim and use unreasonable and disproportionate force

  • Recent reforms allow for anything up to "grossly disproportionate"
• The "all or nothing approach"- Criticism

  The jury may decide that D used force when necessary but it was "slightly" excessive. This would completely deny the whole defence.
• However- all or nothing approach

  • Line has to be drawn somewhere
  • Without the rule the defence would be abused
  • Defences have to be hard to prove or too many people would be unfairly awarded one
  • Juries use common sense in making their decision
• Relevance or D's characteristics- Criticism

  If D has characteristics that make him perceive more danger than the average person and therefore respond in self-defence differently- these are not taken into consideration

  Meaning there defence could fail at the first hurdle because the jury would claim his actions unnecessary, even if he felt that they were.
• Reforms 


  Introduction of the Crime and Courts Act 2013, s.43(3)

  • Allows for anything up to "grossly disproportionate"

  Introduction of the Coroners and Justice act 2009

  • Loss of control defence may provide alternate defence where excessive force is predicted to rule out self-defence