Self Defence Essay Model Answer

• Self-defence is a potential defence available to the defendant X. This defence negates the unlawfulness of otherwise unlawful acts of force and if successful, will lead to X's acquittal.
• In order to be justified, the force used must be necessary and proportionate. Unders.76 of the Criminal Justice & Immigration Act 2008 (CJIA), x must firstly believe that he, someone else, or his property is under threat or that force is necessary to prevent a crime. This is a subjective test.
• * Only if in scenario*

  S.76(4)(b)(i), CJIA states that the court must consider the defendant's view of the threat. If X is mistaken, he should be judged according to his mistaken view, The pertinent issue is whether the D genuinely believed the mistake; R v Williams (Gladstone).

  Under S.76(4)(b)(ii) CJIA 2008, the court then considers whether the defendant's view (including any mistaken view) was reasonable.

  S.76(5) CJIA 2008 confirms that self-defence is not available where a defendant makes a mistake about a threat because he is voluntarily intoxicated; R v O'Grady/R v O'Connor.
• The threat against the D must be imminent (about to happen) and is subjective so based on the D's view of the situation, Att-General's Reference (No 2 1983). If the threat has passed so no longer a danger at the time then self defence will not be available, R v Hussain.
• The Court must then consider the reasonableness of the force used. S.76(7)(a) CJIA 2008 states that the D does not have to 'weight to a nicety exactly what action to take.' Under s.76(7)(b) CJIA 2008, if the D acts honestly and instinctively because he thought that was necessary to protect himself/others/property or to prevent a crime, that would be strong evidence his actions were reasonable, R v Beckford. If force is deemed excessive the defence will not be applicable; R v Martin/R v Palmer.
• *Only if in scenario*

  Under s.76 (5A) of the CJIA, the Crime and Courts Act 2013 has created thar if force is using in a building/part of a building that is a dwelling (lived in), the defendant is NOT a trespasser and the d believed the V was a trespasser, then force will be reasonable as long as it is NOT 'grossly disproportionate' Collins v Secretary of State for Justice.
• In conclusion, x can/cannot rely on self-defence and is likely/not likely to be convicted of....