- Created by: Holly Stevenson
- Created on: 21-11-10 15:51
- Well know type of offence, recieving much puplicity especially regarding the actions of householders who are confronted with intruders.
- This defence covers situations when force is need to defend people or to prevent crime.
- However tight restrictions are needed to prevent people from taking the law into their own hands, the force used must always be justified in the circumstances.
Self-Defence - a common-law offence which also includes defences of another person or the defence of property.
Defence of propery - regulated partially by common law and partially by statutes, namely the Criminal Damage Act 1971.
Prevention of Crime - this is a statutory defence covered by the Criminal Law Act 1967.
Elements of self-defence.
FORCES MUST BE NECESSARY
- For a force to be justified it must be necessary.
- The defendant is judged on the circumstances as they honestly believed them to be.
- To decide if a force was necessary the jury will consider the surrounding circumstances.
- These are included within this defence.
- The defendant doesnt have to wait to be attacked before defending themselves.
- A defendant can use threats of force or threats of death to try to stop an attack on themselves.
CASE: R v Beckford (1988), R v Cousins (1982)
Elements of self-defence.
Preparing for an attack
- If the defendant believes that they are at risk of an attack on themselves or their property, they may beable to make preperations in order to defend themselves.
CASE: Attorney General's Reference(No2)(1983).
Duty to Retreat
- The court were called upon to consider whether a defendant is required to retreat from a situation if possible.
- Self-defence is only available to those that cannot retreat.
- The question on whether the defendant must retreat or whether they could choose to stay and fight while still relying on self-defence was decided in the cae of R v Bird (1985).
CASE: R v Bird(1985)
Elements of Self-defence
FORCE MUST BE REASONABLE
- Much of the debate around this defence is whether the force used was reasonable in the circumstances.
- There is no defenition of reasonable force and this is a matter for the jury to decide.
- The jury must take various factors into account such as the threat of harm, the urgency of the situation and any other options available to the defendant.
- A lower level of force is expected if the defendant is protecting property.
- The jury must consider the fact that the defendant was acting in the heat of the moment, as long as the defendant only did what they honestly thought was required, this will be evidence that the force was reasonable
- This isnt just an objective test as the defendants state of mind is taken into consideration.
CASE: R v Scarlett, R v Owino, R v Martin (2002).
Excessive force, mistake and intoxication.
Use of Excessive force
- Self-defence is an all or nothing defence, which means that if it is pleaded successfully, the defendant is acquitted, but if the jury believe that the force was excessive in the circumstances then it fails and the defendant is found guilty.
- This has been criticised, as the defendant who rightly thinks that the force is needed but makes a mistake as to the degree necessary will not beable to rely on the defence.
CASE: R v Clegg (1995)
Excessive force, Mistake and intoxication.
Mistake as to the need of Self-Defence
- If the defendant makes a mistake and believes that self-defence is necessary they will be judged on the facts as they honestly believed them to be.
- This is still the case if the mistake was unreasonable.
CASE: R v Williams (Gladstone)(1984)
Intoxication and Self-Defence
- If the defendant was intoxicated when making the mistake as to the need of Self-Defence the rule on mistake changes.
CASE: R v O'Grady(1987)
The 'all or nothing' effect
- A situation may arise where sone force is justifiable but the defendant used to much. This means that the defence fails and critics have argued that this can lead to unfair results.
- For some offences the need for some force can be taken into account when sentencing the defendant.
- The current rule is that a defendant will not be able to rely on a mistaken belief that self-defence is required if they are intoxicated. This has been criticised as to harsh, particularly given that intoxication is a defence to specific intent crimes.
Allow an alternative conviction of manslaughter
- To combat criticism on the 'all or nothing' nature of the defence, it has been suggested that where some force is justified but the defendant uses to much and causes death of the victim, it should be open to the jury to convict them of manslaughter rather than murder.
Changing the ruling of O'Grady
- The rule of O'Grady is seen as to harsh and has been suggested that mistakes as to the need for self-defence induced by intoxication should operate as a defence.