Self-Defence

• Self-Defence

  Complete defence - will lead to not guilty verdict.

  Covers actions to defend SELF OR ANOTHER.

  Statutory defence under s3(1) Criminal Law Act 1967 -

  • "A person may use such force as is reasonable in the circumstances in the prevention of crime."
• How to know if someone can use the defence of self-defence:

  Two-step test:

  1. Was the use of force necessary? (Subjective)
  2. Was it reasonable in the circumstances (Objective)

  If an attacker is running away then it is unlikely that force would be deemed necessary (Hussain)

  A person does not need to wait until they are attacked before using force (Bird)

  If D was the aggressor, they cannot rely on self-defence (Rashford)
• 1. Was the force necessary?

  Depends on the circumstances at the time.

  Where D genuinely, but mistakenly, believed that force was necessary then the jury need to decide whether the force was necessary in the circumstances that D honestly believed existed.

  If D honestly believed he was threatened, he can use the defence even though there was no actual threat (Gladstone Williams)
• Mistake as to circumstances

  Criminal Justice and Immigration Act 2008:

  • the degree of force used should be measured against the circumstances as D believed them to be.

  e.g. if D genuinely believed attacker had a gun then this would be taken into account, even if incorrect.

  DOES NOT APPLY IF D WAS INTOXICATED.
• 2) Was the force proportionate?

  s76(6) Criminal Justice and Immigration Act 2008 sets out the ammount of force which can be used:

  • If a person "honestly and instinctively" thought the level of force used was necessary to protect himself or another or to prevent crime, then this provides strong evidence that the defensive action was reasonable in the circumstances.

  IS AN OBJECTIVE TEST

  BALANCES THE RISK OF HARM TO D AND THE RISK OF HARM TO V.

  If force is used after all danger is over, defence not available (R v Clegg/R v Martin)
• Householder cases

  Wider defence now given to householders where an intruder enters their property.

  To be a household case:

  1. Force must be used by D in or partly in a building that is a dwelling.
  2. D must not be a trespasser.
  3. D must have believed V was a trespasser.

  In householder cases, the degree of force will only be regarded as unreasonable if it was "GROSSLY disproportionate".

  Two tests now:

  1. Was the force grossly disproportionate? If yes, cannot use defence.
  2. Was it reasonable in the circumstances as D believed them? If yes, can use defence. (R v Ray).