Self defence

• What 3 spheres does it operate in?

  • defend themselves from an attack
  • prevent an attack on another person
  • defend their property
• Where is the common law offence amended in?

  The Criminal Justice and Immigration Act 2008
• S3(1) of the Criminal Law Act 1967 provides that?

  The force must be reasonable in the circumstances in the prevention of crime, assisting the lawful arrest of offenders or suspected offenders or of persons unlawfully at large. Both the common and statutory law can be raised for any crime and will have a complete acquittal. However if D uses excessive force this indicates he acted unreasonably and will haev not defence.
• Reasonable force


  Judged through a subjective test where D believed it was reasonable in the circumstances. Two questions are asked: Was it necessary to use nay degree of force? If so, was the degree of force used proportionate or reasonable to the harm threatened? If the jury thinks D did what he honestly and instinctively thought was necessary then it's strong evidence that only reasonable force had been taken (Scarlett). It fails if the prosecution shows beyond reasonable doubt that D's actions were not by way of self defence. Excessive force is not a defence (Martin, Clegg).
• A duty to retreat?


  No rule of law that a person attacked must run away if they can or indicate their unwillingness to fight. D, stating they didn't want to fight, has the best evidence that they were reasonable and in self defence, but no more than that. In some circumstances D may act without withdrawing and still get a good defence.
• R v Bird


  Established that it's not required for D to show she didn't want to fight and if D was attacked first the defence is still available. It's acceptable to strike a pre-emptive blow if it's genuinely believed that an attack is imminent.
• Mistake as to self defence

  If D mistakenly believe they're being threatened or that an offence is being committed by another person. Williams (Gladstone) where it was held D was entitled to rely on self defence even if he is mistaken about the situation, even if it was unreasonable to do so. This is problematic as you could claim that you were mistaken. The CJ&IA clarified this:

  1. prosecution must prove D's actions were unlawful
  2. D may have made a mistake as to the facts he must be judged accordingly to his mistaken view
  3. Still stands even if the mistake was objectively unreasonable
• S76 of the CJ&I Act?


  If D is drunk and makes a mistake then they cannot rely on the defence. Drunken mistake however genuinely believed is no defence to a criminal charge (O'Connor)
• D who makes a mistake due to a mental condition?


  For example with PTSD self defence can be relied upon when considering the mistake about whether force should be used, not changing the consideration of the level of force which remains objective
• Householder cases


  CJ&I Act s76 give an extra 'allowance' for the use of disproportionate force to be used in householder cases. However 'grossly disproportionate force' cannot be afforded. A number of factors will decide for the jury whether force was grossly disproportionate eg vulnerability, woman, time of day, location, children, numbers of trespassers etc. The force must be used while D was in or partly in the building that is used as a dwelling, D must not be a trespasser, D must believe V was a trespasser.
• • defend from an attack, prevent attack on another, defend property
  • CJ&I Act 1967
  • Reasonable force- not excessive, subjective test, proportional to the harm, honest and instinctively
  • duty to retreat- no rule, D can start the fight
  • mistaken belief of threat or that an offence is being committed, even unreasonably, judged according to his mistaken view of the facts, drunk mistakes = no defence, mistake by mental condition = defence
  • householder cases- disproportionate force, not grossly, must be in or partly in a building that is used as a dwelling, D isn't trespasser but must believe V is