Self defence

• Self-defence

  Common law defence, leads to a complete acquittal
• Self-defence

  Principles recently put on statutory footing by s.76 Criminal Justice and Immigration Act (CJIA) 2008
• Objective of s.76 CJIA 2008

  To clarify the law
• s.76(3) CJIA 2008

  The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be
• s.76(4) CJIA 2008

  1. If D claims to have held a particular belief as regards the existence of any circumstances

  2. (a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it

  3. (b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not (i) it was mistaken, or (ii) (if it was mistaken) the mistake was a reasonable one to have made
• s.76(5) CJIA 2008

  ss(4)(b) does not enable D to rely on any mistaken belief that was voluntarily induced
• s.76(6) CJIA 2008

  The degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in the circumstances
• s.76(7) CJIA 2008

  1. (a) that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action

  2. (b) that evidence of a person's having done what the person instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose
• Self-defence

  • Subjective question which asks whether the D honestly believed that the use of force was necessary
  • Objective and asks whether the amount of force used was reasonable, as D believed them to be
• Test for self-defence reiterated in Oatridge (1992) 94 Cr App R 367, CA

  1. was D under actual or threatened attack by the victim (or did he honestly believe that he was)?

  2. ii. If yes, Did the D act to defend himself?

  3. iii. If yes, Was his response commensurate with the degree of danger created by the attack (or with the degree of risk which the D believed to be created by the attack under which he believed himself to be)?
• Is force necessary?

  A subjective question
• A pre-emptive strike does not preclude D from relying upon self-defence
• There is no duty on D to retreat before using force
• Mistaken belief

  A mistake does not preclude D from relying on self-defence provided his belief was honestly held
• Mistake must not be due to intoxication
• Reasonable force

  Objective test
• Excessive force - no defence
• Reasonable force

  Person must use reasonable force which is objective. There is a subjective element to the question because the defendant must use reasonable force in the circumstances as he believed them to be
• Some leeway is given to defendants who act in "the heat of the moment"
• Some leniency for householders