#15609 - Defences - Criminal Law

DEFENCES

Even if the prosecution has proved the AR and MR of an offence, the D may still be able to argue that he has a defence.

SELF-DEFENCE

The requirements of the defence are:

1. D was (or believed he was) facing an unjust threat from the V.

2. The D used a level of force against the threat (or the threat as he belived it to be) that was reasonable in the circumstances.

s.3 Criminal Law Act 1967

1. “A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.”

2. “Subsection (1) above shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.”

The defence was further clarified in the following statute:

s.76 Criminal Justice and Immigration Act 2008

1. This section applies where in proceedings for an offence—

1. an issue arises as to whether a person charged with the offence (“D”) is entitled to rely on a defence within subsection (2), and

2. the question arises whether the degree of force used by D against a person (“V”) was reasonable in the circumstances.

   1. The defences are—

1. the common law defence of self-defence;

(aa) the common law defence of defence of property; and

2. the defences provided by section 3(1) of the Criminal Law Act 1967 (c. 58) or section 3(1) of the Criminal Law Act (Northern Ireland) 1967 (c. 18 (N.I.)) (use of force in prevention of crime or making arrest).

   1. 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, and subsections (4) to (8) also apply in connection with deciding that question.

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

1. the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but

2. 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—

1. it was mistaken, or

2. (if it was mistaken) the mistake was a reasonable one to have made.

   1. But subsection (4)(b) does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced.

(5A) In a householder case, 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 grossly disproportionate in those circumstances.

2. In a case other than a householder case, 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 those circumstances.

(6A) In deciding the question mentioned in subsection (3), a possibility that D could have retreated is to be considered (so far as relevant) as a factor to be taken into account, rather than as giving rise to a duty to retreat.

3. In deciding the question mentioned in subsection (3) the following considerations are to be taken into account (so far as relevant in the circumstances of the case)—

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

2. that evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.

   1. (8) Subsections (6A) and (7) are not to be read as preventing other matters from being taken into account where they are relevant to deciding the question mentioned in subsection (3).

(8A) For the purposes of this section “a householder case” is a case where—

1. the defence concerned is the common law defence of self defence,

2. the force concerned is force used by D while in or partly in a building, or part of a building, that is a dwelling or is forces accommodation (or is both),

3. D is not a trespasser at the time the force is used, and

4. at that time D believed V to be in, or entering, the building or part as a trespasser.

(8B) Where—

1. a part of a building is a dwelling where D dwells,

2. another part of the building is a place of work for D or another person who dwells in the first part, and

3. that other part is internally accessible from the first part, that other part, and any internal means of access between the two parts, are each treated for the purposes of subsection (8A) as a part of a building that is a dwelling.

(8C) Where—

1. a part of a building is forces accommodation that is living or sleeping accommodation for D,

2. another part of the building is a place of work for D or another person for whom the first part is living or sleeping accommodation, and

3. that other part is internally accessible from the first part, that other part, and any internal means of access between the two parts, are each treated for the purposes of subsection (8A) as a part of a building that is forces accommodation.

(8D) Subsections (4) and (5) apply for the purposes of subsection (8A)(d) as they apply for the purposes of subsection (3).

(8E) The fact that a person derives title from a trespasser, or has the permission of a trespasser, does not prevent the person from being a trespasser for the purposes of subsection (8A).

(8F) In subsections (8A) to (8C) —“building” includes a vehicle or vessel, and; “forces accommodation” means service living accommodation for the purposes of Part 3 of the Armed Forces Act 2006 by virtue of section 96(1)(a) or (b) of that Act.

1. This section, except so far as making different provision for householder cases, is intended to clarify the operation of the existing defences mentioned in subsection (2).

2. In this section—

1. “legitimate purpose” means—

1. the purpose of self-defence under the common law,

(ia) the purpose of defence of property under the common law, or

2. the prevention of crime or effecting or assisting in the lawful arrest of persons mentioned in the provisions referred to in subsection (2)(b);

2. references to self-defence include acting in defence of another person; and

3. references to the degree of force used are to the type and amount of force used.

In the following case, the court explained that the statute does not change the law, rather sets out the existing position in statutory terms:

Keane [2010]

Facts: see below.

Court of Appeal:

• S.76 of the Criminal Justice Immigration Act 2008: does not alter the law as it has been for many years; not does it exhaustively state the law of self-defence, but it does state the basic principles.

To what crimes is self-defence a defence?

The offence against which you use the defence must involve force:

Blake v DPP [1993]

Facts: a vicar wrote with a felt-tip pen on a pillar near the Houses of Parliament. He argued that he was seeking to prevent the first Iraq war and therefore relied upon s.3 of the Criminal Law Act 1967.

Held: the writing did not involve the use of force and therefore the defence could not be relied upon.

What needs to be shown to establish the defence?

The key elements of the offence are as follows:

1. V must pose an unjustified threat

2. The use of force must be necessary

3. The degree of force must be unreasonable

4. The D must be acting in order to defend himself or another or property.

1. The victim must pose a threat

The V must pose a risk to D or someone else. However, this requirement has been cast into doubt by the following case:

Hitchens [2011]

Facts: D was charged with an assault on Kathleen Brown. His defence was that he acted in self-defence, in that he assaulted her in order to prevent her allowing a man into her flat, who D believed would assault him. The judge ruled that a D could not rely on self-defence in a case where the assault was against an innocent person in order to prevent an attack against a third party.

Court of Appeal:

• The defences as capable of extending the use of force against an innocent third party to prevent a crime being committed by someone else. This rule has greater scope for operation where it was certain that a crime would be committed immediately if action was not taken. Conversely, a low likelihood of a crime being committed, and a long time between awareness of risk and when the crime might be committed, would reduce the scope.

• However, in this case, V had been doing what she was entitled to do, there was little risk of crime being committed, and none was being committed when D slapped V. D had ample time to call the police given that he knew O was coming.

Gross LJ:

• Although we suspect that the facts capable realistically of giving rise to such a defence will only rarely be encountered, examples can be adduced and two will suffice:

1. a police constable bundles a passerby out of the way to get at a man he believes about to shoot with a firearm or detonate an explosive device;

2. Y seeks to give Z car keys with Z about to drive. X, believing Z to be unfit to drive through drink, knocks the keys out of Y's hands and retains them.

Herring: the CA have got this wrong. In the two hypothetical cases, the correct defence would be duress. The case threatens to undermine the line the law draws between duress and self-defence. There is no doubt that the defence applies whether the threat is being posed to the D or to another person / property. [Note: another argument is that this lets in the defence of necessity to murder in through the back door —i.e. the only circumstances in which it would be reasonable for D to kill an innocent V would be...