Self Defence

• Common law defence 


  To defend yourself or another 
• Statutory Defence 

  S3(1) Criminal Law Act 1967 – “A person may use such force as is reasonable in the circumstances in the prevention of a crime”. 
• 2 key questions: 

  (for the jury to decide) 


  • Was force necessary? 
  • Was it reasonable? 
• Key question number 1

  Was force necessary? 
• Mistaken use of force: 

   

  If you believe you need to use force to defend yourself or another it can still be successful even if you are mistaken.
• Williams (Gladstone) (1987) 


  Thought youth was being attacked. Even though mistaken the defense was allowed as he genuinely believed the youth needed defending.

  As long as there is genuine belief need not be reasonable.
• S76(3) Criminal Justice & Immigration Act 2008


  • Was force necessary? 
  • Judged by what the defendant genuinely believed. 
  • A defendant can be mistaken in this belief. Mistake need not be reasonable. As long as it is a genuine mistake it can be relied upon.  
• Drunken mistake: 

  S76(5) Criminal Justice & Immigration Act 2008 


  Defendant who is voluntarily intoxicated cannot rely on drunken mistake.  
• O’Grady  

  • Was drinking with a friend and they fell asleep.  
  • O’Grady woke up still drunk and thought his friend was trying to kill him so he killed his friend. 
  • No defense as mistake was due to voluntary intoxication.  
• Is there a need to retreat? 

  No but must not be retaliation.  
• Hussain & Another (2010) 


  • Defendant’s house was attacked by armed men and his family threatened.  
  • Defendant escaped and chased men down the street and was beaten badly with a cricket bat.  
  • The defence failed as the threat was over
• Key question number 2

  Was the force reasonable? 
• S76(7) Criminal Justice & Immigration Act 2008 


  Person is not expected to ‘weigh to a nicety the exact measure of any necessary action’. Provided the defendant acted ‘honestly and instinctively’ for a ‘legitimate purpose’.  Don’t expect people to think about what is reasonable where they are simply reacting to a threat. 
• No defence where force is excessive. 

   
• Clegg (1995) 

  Soldier in Northern Ireland who shot at a car (killing a passenger) that failed to stop at a checkpoint. Force was excessive as the threat was over as car was driving away. 
• UNLESS: 

  Crime and Courts Act 2013 applies 


  • Can use excessive force in a dwelling to defend self/another or prevent a crime. 

   

  • Force cannot be ‘grossly disproportionate’.  
• Grossly disproportionate force. 


  • The court will need to consider the individual facts of each case.  
  • There are no hard and fast rules about what types of force might be regarded as ‘grossly disproportionate’.