Self Defence

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  • SELF DEFENCE
    • use of force
      • was it necessary as the defendant saw the circumstances to be?
        • R v WILLIAMS
          • mistake
          • FACTS:Thought man was assaulting youth when actually trying to arrest.
          • PRINCIPLE: defendant was labouring under a mistake to the facts, so should be judged accordingly
      • A02
        • English law only requires an honest belief where as European Court of Human Rights say it must be based on good reason
        • English law is too lenient as this could allow people to use the defence for racist attacks
    • Once defence has been raised it is up to prosecution to prove that the use of force was unnecessary
    • Can be used to defend himself,prevent an attack on another, or defend his property
    • common law
    • Pre-emptive strike
      • attack need not be in process
      • it is enough for D to apprehend an attack
      • R v BECKFORD 1988
        • a man about to be attacked does not have to wait for his assalant to strike: circumstances may justify pre-emptive strike
        • Danger apprehended must be sufficiently specific or imminent and where the accused could not have responded in a more peaceful manner
      • Issuing threats
        • R v COUSINS 1982
          • self defence applies to threats of violence, D can issue threat of force, even death, if might prevent an attack or crime
      • A02
        • what situations can justify a pre-emptive strike?
    • Preparing for an attack
      • A-G'S REF (NO2 OF 1983) (1984)
        • where D apprehends an attack upon himself he may make preparations
    • Duty to retreat
      • used to be that D was required to retreat as far as possible before resorting to violence
      • R v BIRD 1985
        • COA- reluctance to fight placed to great an obligation on D
      • R v RASHFORD 2005
        • aggressor can use the defence where the victims retaliation is out of all proportion to that used by D
      • A02
    • Reasonablness of Force
      • jury must decide from the position of what the D saw and thought the circumstances to be
      • R v PALMER 1971
        • Cannot weigh to a nicety the exact measure of his.. defensive actions and if jury thought that in a moment of unexpected anguish a person attacked would have only done what they honestly and instinctively though was necessary that would be most potent evidence that only reasonable force was used
        • R v WHYTE 1987
          • the belief need not be reasonable but the amount of force used must be reasonable and judged objectively on the facts
      • R v OWINO 1996
        • jury have to decide whether D honestly believed that the circumstances required him to used force to defend himself. Judge with honest belief, even with mistake that force used was reasonable in those circumstances
      • A02
        • Self defence is too restrictive
        • Law realises that you cannot calculate the exact amount of force they will apply on you, however, it must be reasonable
          • Cannot weigh to a nicety the exact measure of his.. defensive actions and if jury thought that in a moment of unexpected anguish a person attacked would have only done what they honestly and instinctively though was necessary that would be most potent evidence that only reasonable force was used
        • Reaffirms the fact that the jury can decide on whether force was reasonable within the circumstances- reaffirming R v Williams 1987
          • jury have to decide whether D honestly believed that the circumstances required him to used force to defend himself. Judge with honest belief, even with mistake that force used was reasonable in those circumstances
        • There is little, if any guidance as to what level of force is reasonable
        • Open Texture approach makes it more difficult for juries to determine any precision as to what level of force can be used in particular situations
      • R v WHYTE 1987
        • the belief need not be reasonable but the amount of force used must be reasonable and judged objectively on the facts
    • Relevance of D's characteristics
      • MARTIN 2002
        • Psychiatric  evidence in relation to D's perception of events is not acceptable
      • CANNS 2005
        • when deciding whether the D had used reasonable force in self defence it was not appropriate to take into account whether D was suffering from some psychiatric condition which may have provided delusions beliefs that he was about to be attacked
        • Courts did state that there may be exceptional circumstances when evidence may be taken into account. CJIA 2008- other matters to be taken into account
      • A02
        • This may lead to a renewed argument about which of the D's characteristics are relevant?
          • Courts did state that there may be exceptional circumstances when evidence may be taken into account. CJIA 2008- other matters to be taken into account
        • If R v WILLIAMS 1987- says we can judge on facts and circumstances then this makes this part of the law inconsistent and unfair
    • Excessive Force
      • R v CLEGG 1995
        • FACTS:Shot dead a joy rider who wouldn't stop when ordered, D feared for life of soldier, shot 4 shots, 4th was fatal and show once car passed soldiers who were no longer in danger
        • PRINCIPLE: Upheld conviction for murder- no halfway house. No rule that D who had used greater degree of force than was necessary in the circumstances should be found guilty of manslaughter and not murder
      • A02
        • Law needs to finely balance the rights of the aggressor and rights of the D- here it slightly tips towards the aggressor but the law tries to balance the rights to protect everyone and not just allow people to take the law into their own hands
          • PRINCIPLE: Upheld conviction for murder- no halfway house. No rule that D who had used greater degree of force than was necessary in the circumstances should be found guilty of manslaughter and not murder
        • Individuals acting in self defence, particularly involving house hold cases are given considerable lee way to use force to protect themselves
      • R v MARTIN 2001
        • Shot and killed two both in back and legs, one died. Rejected plea for self defence as he had used excessive force and evidence suggested he lain in wait for them and shot at close range with intention to kill or seriously injure
        • On appeal fresh evidence that he was suffering from paranoid personality disorder and used defence of insanity
  • R v WILLIAMS
    • mistake
    • FACTS:Thought man was assaulting youth when actually trying to arrest.
    • PRINCIPLE: defendant was labouring under a mistake to the facts, so should be judged accordingly

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