self defence

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  • Created by: Rebeka188
  • Created on: 13-04-16 17:51
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  • Self- defence
    •  s.76 Criminal Justice and Immigration Act 2008 
      • S 3(1)  of the Criminal Law Act 1967 : 'A person may use reasonable force 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. 
      • common law: D uses reasonable force to defend himself( Beckford), another person (Rose), his own property (AG No 1983)
    • D must prove
      • 1. force used was reasonable
        • a question of fact and a matter for the jury
          • means not diproportionate to the threat - objective question, notwhether accused himself believed the amount of force used was necessary or reasonable but whether it WAS reasonable
            • see s.76(7) - same as in Palmer:  in deciding what is reasonable the courts must take into account the fact the D was acting under conditions of extreme stress
              • s.43 of Crime and Courts Act 2013 adds a new subs(5A)
                • in householder cases: the degree of force shoud not be grossly disproportionate
        • 76(3): whether the degree of force used by D was reasonable in the circumstances it to be decided by reference to the circumstances as D believed them to be
        • no duty to retreat(Bird), but failure to do so is something the jury can consider when deciding if F used reasonable force
          • D may act pre-emptively: AG's Ref (No2 of 1983)
            • in must have been necessary to react (subjectively assesed provided D is sober)
              • the amount of force used must have been objectively proportionate to the threat, or the threat perceived by D
                • O'Grady: drunk
            • as long as he honestly believed an attact to be imminent
      • 2. use of force must be necessary
        • if there are other methods you cannot rely on the defence: Burns: removing the prostitute form his car
        • D able to plead defence even if the was mistaken that he or another was being attacked by a wrongdoer
          • Beckford: police officer shot a person that he though was armed and dangerous, was not, quashed - important are D views of the facts
          • Williams (Gladstone): even if mistake was unreasonable: when D makes a mistake about the need to use the force, he was to be judged according to his mistaken view of the facts - subjective test
            • unless mistake induced by mental psychosis: Oye (insanity takes precedent)
    • It will usually be used against a wrongdoer but this is not of the essence. R. v Hichens 
  • Excessive force then NO defence
    • Clegg: not reasonable to shoot a retreating car
    • Yaman:  even if D had mistakenly ‘done what he honestly and instinctively thought was necessary’ to resist a supposed burglary, the jury must conclude that the force he used was excessive. The trial judge’s failure to refer to s. 76(7) when directing the jury was not therefore fatal to D’s conviction for wounding under the OAPA 1861, s. 18. 
  • defence is only available to offences involving the use of force (eg not theft, fraud speeding)
    • Blake: graffity on H of Parl did not involve the use of force (crim damage can be relied upon)
    • Cousins: threat to kill was a use of force
    • Renouf:forcing a car off the road for the purposes of arresting the occupant was capable of amounting to the use of reasonable force, and was not reckless driving
  • if the use of force is considered disproportionate D might use the defence of self control (fear of serious violence) to reduce murder to manslaughter
  • you can use it even if you are the initial aggressor: Burns (Scottish case): depends on whether the violence offered by the victim was so out of proportion to the accused own's acting
    • position different if he deliberately provokes fight as to give himself an excuse for injuring or killing: Harvey


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