Self-Defence Evaluation

• Courts aim to balance the use of defence -several factors are considered:

  • The courts have made a number of important decisions that clarify the scope of this defence. A good example is the fact that a person will still be allowed to plead self-defence even if he or she strikes the first blow.
  • A pre-emptive strike was allowed in the case of R v Beckford (1988). The law recognises that most self-defence occurs on the ‘spur of the moment’ and so makes allowances in deciding whether the response was reasonable.
• Courts aim to balance the use of defence -several factors are considered:

  • Lord Morris stated in R v Palmer (1971) that a defendant does not have to ‘weigh to a nicety the exact measure of his defensive action’.
  • Ultimately, the force used must be broadly proportionate to the perceived threat.
• Courts aim to balance the use of defence -several factors are considered:

  • More recently in R v Rashford (2005), the courts confirmed that the defence could be available to a defendant who was the initial aggressor in a confrontation. If the response of the other party is disproportionate to the defendant’s act, this could justify the use of force.
• Courts aim to balance the use of defence -several factors are considered:

  • In Cross v Kirby (2000), it was recognised that disabling force could also be justified if the circumstances demanded it.
  • In that case, the defendant managed to wrestle a baseball bat from the aggressor and hit him with a single blow across the head to prevent further attack. The court felt that he had only done what was necessary in the light of determined and persistent aggressive behaviour.
• Psychiatric conditions:

  • The decision in R v Martin (2002) that his psychiatric characteristics could not be taken into account when deciding if the force was reasonable has been confirmed in R v Cairns (2005).
  • Unfair the defence isn’t available for those who may genuinely need it due to psychiatric condition. It is unclear whether the Criminal Justice and Immigration Act 2008 has changed this position as the Act did not clarify this point.
• Excessive force:

  • One area of self-defence that has caused much debate and controversy concerns the use of excessive force. People who suddenly find themselves defending themselves, others or their property may be denied the defence if they go too far.
  • This was seen in the cases of R v Martin (2002) and R v Clegg (1995).
  • Under Australian law, a person who acts in self-defence but uses excessive force would have his or her conviction reduced to a lesser offence. However, in England and Wales the defence will fail completely if the force is regarded as excessive.
• Excessive force:

  • The issue of householders using self-defence against burglars has however changed.
  • The change made by s.43 Crime and Courts Act 2013 has been welcomed by many critics who have long argued that the law should not protect burglars.
  • Now a householder can use as much force as them deem necessary as long as it is not considered ‘grossly disproportionate’.
• Excessive force:

  • What is excessive? The law says you do not have to ‘weigh to a nicety’ the amount of force you use, but in the next breath it says the force cannot be excessive. These decisions are left to the jury, who will hopefully decide the case according to common sense.
• Excessive force:

  • In response to criticisms of the existing laws, the government has partially codified the law on self-defence and the meaning of reasonable force in s.76 of the Criminal Justice and Immigration Act 2008.
  • The Act merely repeats the position under existing case law and has been criticised as being an unnecessary ‘cosmetic’ change and a ‘pointless exercise’.
• Mistake:

  • The law allows self-defence to be used by people who make an honest mistake about the need to use force. This occurred in R v Williams (Gladstone)(1984) and again demonstrates the willingness of the courts to allow this defence.
  • However, the defendant cannot be mistaken about the degree of force used and an intoxicated mistake will not be allowed (R v O’Grady (1987); R v Hatton (2006)).
  • This decision can be criticised as being too harsh, particularly given that intoxication is a defence to specific intent crimes such as murder and s.18 GBH.
• Reform: Allow an Alternative Conviction of Manslaughter.

  • To combat criticism of the ‘all or nothing’ nature of the defence, it has been suggested that where some force is justified but the defendant uses too much and causes the death of the victim, it should be open to the jury to convict him or her of manslaughter rather than murder.
• Reform: Allow an Alternative Conviction of Manslaughter.

  • This argument was rejected in the case of Clegg, but gained support from the Law Commission, which proposed (in its report on partial defences to murder in 2006) that the use of excessive force be incorporated into a reformed defence of provocation.
  • According to the Coroners and Justice Act 2009, if the defendant suffers a ‘loss of control’ they may be able to successfully raise this partial defence to murder when self-defence has failed due to being excessive.
• Reform: Change the Ruling in O’Grady.

  • Since the rule in O’Grady is seen by some as too harsh, it has been suggested that it be abolished and mistakes as to the need for self-defence induced by intoxication should operate as a defence.
• What does the law allow regarding self-defence in the case of an honest mistake about the need to use force?

  It allows self-defence to be used by people who make an honest mistake about the need to use force.
• What case demonstrates the courts' willingness to allow the defence of mistaken self-defence?

  The case of R v Williams demonstrates this willingness.
• What limitation is placed on the defendant regarding the degree of force used in self-defence?

  The defendant cannot be mistaken about the degree of force used.
• What does the case of R v O'Grady illustrate about intoxicated mistakes in self-defence?

  It illustrates that an intoxicated mistake will not be allowed as a defence.
• How can the decision to not allow intoxicated mistakes in self-defence be viewed?

  It can be viewed as too harsh, especially since intoxication is a defence to specific intent crimes.
• What is a popular reform regarding self-defence related to intoxicated mistakes?

  A popular reform is to abolish the rule that does not allow mistakes induced by self-defence.
• What area of self-defence has caused much debate and controversy?

  The use of excessive force has caused much debate and controversy.
• What happens if a person defending themselves uses excessive force?

  They may be denied the defence of self-defence, as seen in the case of R v Martin.
• How does the treatment of excessive force in Australia differ from that in the UK?

  In Australia, the conviction may be lowered for excessive force, while in the UK, the defence fails completely if the force is regarded as excessive.
• What change has been made regarding householders defending against burglars?


  A householder can now use as much force as they deem necessary, as long as it is not considered 'grossly disproportionate.'
• What confusion does the law create regarding excessive force?

  The law confuses the public about what is meant by excessive force, stating you do not have to 'weigh to a nicety' but then saying the force cannot be excessive.
• What criticism is directed towards the consideration of a defendant's psychiatric condition in self-defence cases?

  It is seen as unfair that the defence is not available to those who may generally need it due to a psychiatric condition.
• What was confirmed in the case of R v Cairns regarding psychiatric conditions?

  It confirmed that a defendant's psychiatric characteristics cannot be taken into account when deciding if the force was reasonable.
• What uncertainty exists regarding the Criminal Justice & Immigration Act 2008 and psychiatric conditions?

  It is unclear whether the Act has changed its position on the consideration of psychiatric conditions in self-defence cases.
• What should be proposed by the Law Commission regarding self-defence?

  It should ensure that any vulnerability, such as psychiatric conditions, is taken into account before a verdict is given.
• How have the courts attempted to balance the use of the self-defence defence?


  The courts have tried their best to balance the use of the defence by considering several factors.
• What important decisions have the courts made regarding the scope of self-defence?

  The courts have made decisions that help clarify the scope of self-defence, such as allowing a person to plead self-defence even if they strike the first blow.
• What is known as a preemptive strike in self-defence cases?

  A preemptive strike is when a person is allowed to plead self-defence even if they strike the first blow, as seen in R v Beckford.
• What did the case of R v Rashford confirm regarding self-defence?


  It confirmed that the defence could be available to a defendant who was the initial aggressor in a confrontation.
• What is a significant reform regarding self-defence proposed to address the 'all or nothing' nature of the defence?

  To allow an alternative conviction of manslaughter when some force is justified but too much is used, causing death.
• What has been suggested regarding the use of excessive force in relation to provocation?

  It has been suggested that the use of excessive force should be incorporated into a reformed defence of provocation.
• What are the valid criticisms of the current law of self-defence?

  Criticisms include the treatment of psychiatric conditions and the confusion surrounding excessive force.
• What efforts are being made to make the self-defence law more accessible and in line with public policy?

  Efforts include addressing psychiatric conditions and clarifying the confusion surrounding excessive force.
• What role do juries play in the current law on self-defence?

  Juries are given an important role in considering if the defence will succeed or not.
• What are the key areas of self-defence that have been discussed in the evaluation?

  • Mistaken self-defence
  • Excessive force
  • Psychiatric conditions
  • Courts' efforts to clarify the scope of self-defence
  • Proposed reforms
• What are the proposed reforms regarding self-defence?

  • Allowing an alternative conviction of manslaughter
  • Incorporating excessive force into a reformed defence of provocation
  • Addressing psychiatric conditions in self-defence cases