Self - Defence

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Self - Defence

Doesn't just defend oneself from attack but also ations to defend another. Statute: S3 Criminal Law Act 1967

Two main questions that need to be asked when the defence of self-defence is being used: 

  • What the use of force necessary? 
  • What the use of force reasonable?

Force is not justified if it isnt reasonable, they are questions for the jurt to ask, in many cases it will straightforward and it depends on the circumstances in each case

Hussain: once the danger passes the defence of self-defence can't be used

If the D has made a mistake of what is happening and where the D makes a genuine mistake the jury have to decide whether force is necessary in the circumstances the D honestly believed existed (Gladstone Williams). If it is a drunken mistake the defence cannot be used (O'Grady)

Jury need to decide in all circumstance did the D use force that was reasonable?, the jury has as much time as they need to balance all the facts, the facts are as the D believed them to be (subjective), circumstances of attack are taken into consideration and the balance risk to himseelf against the rik of harm to the V

Burden of Proof = lies with PROSECUTION                   DEFENCE need to raise it, jury need to be convinced 

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Self - Defence

Criminal Justice and Immigration Act 2008

  • now allows the fcat person who is facing attack is under stress and cannot be expected to calculate the exact amount a force needed to be used in the circumstances
  • evidence that D 'honestly and instinctively' thought the level of force was reasonable in the circumstance
  • if attack is over, employment of forcemay be way of revenge or punihsment or maybe even pure aggression = no longer link with necessity of forc. Jury will decide this. E.g. Tony Martin and Clegg
  • Pre-emptive strike: Bird
  • an individual can act to prevent force and that you do not have to wait to be attacked to use self-defence. Also D doesnthave a duty to retreat before they use force 
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