#4623 - Self Defence - GDL Criminal Law

Self-Defence

• Common Law: complete defence to those who use force to defend themselves

• S3 Criminal Law Act 1967: ‘a person may use such force as is reasonable in the circumstances in the prevention or crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large’

• S76 Criminal Justice and Immigration Act 2008: intended to clarify both CL and statutory defences

When can self-defence be used?

• To protect yourself or another, or property, from actual attack of the threat of an imminent attack

1. Protection of life and limb of yourself or another

2. Protection of property; R v Hussey

3. Not for a threat to one’s peace of mind: R v Bullerton

Test for self-defence

• D is entitled to rely on this defence if:

1. He honestly believed that the use of force was necessary

2. And that the level of force used to repel the attack was reasonable

D honestly believed that the use of force was necessary:

• D judged on the facts as how he subjectively believed them to be: R v Gladstone Williams

• Principle placed on statutory footing by s76(3)-(4) CIJA

• Mistake induced by voluntary intoxication:

  • R v O’Connor: if mistaken belief is due to the intoxication then D won’t be able to rely on defence: this is whether the crime is of specific or basic intent (s76(5) CJIA)

• There is no duty to retreat:

  • R v Bird: although the force used must be reasonable

• Anticipatory self-defence:

  • D may make the first blow and still rely on the defence theoretically – Beckford v R: ‘a man about to be attacked does not have to wait for his assailant to strike the first blow’

  • Devlin v Armstrong: D can use force to ward off potential attack

• Self-defence may be used by an antagonist:

  • R v Forrester: Whether or not D was a trespasser did not entitle X to use excessive force to remove him – D was entitled to rely on self-defence if X used excessive force

  • R v Rashford: CA – self-defence not automatically precluded in a situation where the D was the initial aggressor and the V retaliated – depends on the circumstances – where the V retaliates to defend himself but then goes over to the offensive

The level of force must be reasonable

• R v Owino: in considering force used, the jury must apply a subjective and an objective test – was the force used objectively reasonable given the facts as the defendant subjectively believed them to be (s76(6) CJIA’s )

• A-G’s reference for N Ireland: not assessed in the ‘calm analytical atmosphere of the court room’ – heat of the moment

• Palmer v R: a person defending himself cannot ‘weigh to a nicety’ the exact measure of necessary defensive action – consider what D did in a moment of ‘unexpected anguish’

• But no defence if disproportionate or unreasonable: R v Martin – D shot burglar as he was leaving

  • R v Clegg: shot V (terrorist) in the back after the threat had passed

All or nothing defence

• R v Clegg: there is no partial defence of self-defence so if it fails the defence...