Self Defence Evaluation

• AO1 - Two types of self-defence


  ·         S 3 Criminal Law Act 1967 – use reasonable force to prevent a crime

  ·         Common Law – us force to defend yourself or another
• Two key questions:


  ·         Was the force necessary?

  ·         Was the force reasonable?
• Necessary:


  ·         S76 Criminal Justice and Immigration Act 2008 – court will consider whether the defendant genuinely believed they need to use force in self-defence.

  ·         Judged subjectively, which means whether the defendant genuinely believed they need to use force to defend themselves of another.

  ·         It can be successful even if the defendant was mistaken in their belief that they need to use force. (Williams Gladstone and s76)

  A mistaken belief will not be accepted if it was due to intoxication.
• Reasonable


  A person is not expected to weigh to a nicety any defensive action taken. Provided they acted honestly and instinctively for a legitimate purpose, the force will be considered reasonable.
• If reasonable force is used, then the defence will be a complete defence.
• If excessive force is used, then the defence will fail.
• Clegg: 'If excessive force is used, then the defence will fail.'
• Under the Crime and Courts Act 2013, where excessive force is used in a dwelling to defend yourself from intruders


  The defence will be a complete defence.
• If it is grossly disproportionate force in a dwelling


  Then it will fail.
• The Law Commission have said about the current law on self-defence: It is an ‘all or nothing defence’
• All or nothing defence


  Outside of a dwelling it can only be used if reasonable force is employed
• If excessive force is used


  It will fail
• If excessive force is used and it results in death

  The charge should be reduced to manslaughter
• The latest development to the law of self-defence is the Crime and Courts Act


  2013
• Crime and Courts Act 2013


  Allows a householder to use excessive force to defend themselves, another or prevent a crime
• Excessive force must not be grossly disproportionate
• Excessive force


  Can only be used against intruders
•     Can still be successful even if you are mistaken. Williams (Gladstone). If genuine belief need not be reasonable. This fair on the defendant but not on the victim. Defendant who is voluntarily intoxicated cannot rely on drunken mistake. Case O’Grady. No defence as mistake was due to voluntary intoxication. This is fair on the victim and ensures that voluntary intoxication is not used as an excuse for violence.
•   Battered women have to use excessive force to overpower abusive partners (Ahluwalia) and therefore the defence fails and they cannot use the 2013 Act which is only against intruders. In the USA, it can be used by battered women, whereas in the UK most battered women fail in the defence of self-defence.
• No definition of grossly disproportionate. Ray - Judges should explain to the jury that the law gives a little more protection to a householder in their own home, but the force should not be ‘grossly disproportionate’. There could be a definition inserted into the CJIA 2008 to help judges.