Self-Defence

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Author:
toricazaly
ID:
266476
Filename:
Self-Defence
Updated:
2014-04-22 18:59:08
Tags:
Law
Folders:
Law
Description:
a2
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  1. Background
    • Long existed at common law
    • Prevention of crime (covered by s3 (1) Criminal Law Act 1967)
    • Defence of Property
    • Self Defence (including defence of others)- S76 The Criminal Justice Act and Immigration Act 2008 -
    • Common Law defence- Confirmed by statute
    • Complete defence
    • General defence
    • Usually raised in cases where a person has been charged with (OAPA) or against charges of murder or manslaughter
    • D had to raise self-defence- D.P.P v Bailey
  2. Rationale
    • Acting in order to defend them has been seen as it should have a defence
    • The law is trying to strike a difficult balance between recognising the rights of the individual to protect and not allowing the defence to be used as an excuse for those wanting to carry out revenge attacks, those using more force than is necessary and those wanting to take the law into their own hands as vigilantes
    • It’s a defence of justification- The defence can provide a justification for committing crime
  3. Force required?

    • D must have honestly believed that some force was required in self-defence at the time they committed the crime. The belief does not have to be reasonable. Defence may
    • still be available even if D made a genuine mistake about the need to use force
  4. Subjective test
    • Threat to D must have been imminent and specific
    •    Malnik (1989)
    • Mistaken belief at to the need of force
    •    Williams (1987)
    • No need to show unwillingness to fight/ No duty to retreat
    •    R v Bird (1985)
    • Threats and Pre-emptive Strikes- D does not have to wait to be attacked
    •    Beckford (1988)
    •    Cousins (1982)
  5. The Criminal Justice and Immigration Act (2008)
    • All that this new act has done is to put all the common law rules onto a statutory footing
    • Parliament’s purpose in doing this was to ‘clarify ‘the law
    • As the new act doesn’t really change anything and even uses Common Law wording. It is difficult to understand what the point of the new act is
    • S76 (3) and (4)simply enact (put into statute) the principles from the cases of  Williams, Beckford etc
  6. Intoxication - self-defence
    • The Ds mistaken belief about the need to use self-defence is no defence if the mistake was caused by Ds voluntary intoxication       
    • O’Grady (1987)
    • Hatton (2005)
  7. Excessive force?
    • The amount of force used in self-defence must be reasonable. It must not be excessive in the circumstances
    • Palmer (1971)
    • Whyte (1987)
    • Scarlett (1983)
    • Owino (1996)
    • Test was initially seen as being an objective question it then moved to having subjective elements
    • However Martin (2001) seemed to pull the test back to being pyrely objective in that the court refused to attribute the Ds  characteristics
    • Canns (2005)
  8. All danger passed?
    • If the force is used after all danger from the assailant has passed the defence is not available
    • Martin (2001)
    • Clegg (1995) Should excessive force in  homicide reduce murder to manslaughter
  9. The def can be proactive/pre-emptive in self defence.
    The case of Beckford- the judge told us that the def can still get the defence if they “deal the first blow or fire the first shot”. They don’t have to wait to be shot/hit first before acting in self defence.
  10. Subsections of element 1 a subjective test necessary force
    • The def can be proactive/pre-emptive in self defence.
    • The def no longer has to show an unwillingness to fight /nor try to retreat
    • The def can make threats/warnings in self defence if they think that they are going to be attacked
    • The def can make preparations in self defence
  11. The def no longer has to show an unwillingness to fight /nor try to retreat
    Since the case of Bird (1985). You can still get it if you stand your ground and fight in self defence.
  12. The def can make threats/warnings in self
    defence if they think that they are going to be attacked
    The case which illustrates this point is Cousins (1982)Where D thought his son was going to be attacked so he went round to the other person’s house and made threats towards him if he went near his son.
  13. The def can make preparations in self defence.
    • The key case which illustrates/shows this point is the case of AG’s Ref (no2 of 1983)
    • D’s shop had been attacked. He thought it was going to be attacked again. He made preparations and prepared some petrol bombs to defend self and property against further attack.
    • He was charged with having explosives but successfully raised self defence
  14. Intoxication and self defence
    • A “non intoxicated” mistake about the amount of force required in self defence - A genuine (non intoxicated )mistake about the need for self defence is fine.        
    • NEW LAW ON INTOX MISTAKE-S76(5)-does not allow def to have self defence if any mistake due to vol intox (AO2- yet again new law follows the old common law position as set out in Hatton and OGrady-puts it on a statutory footing)
    • genuine mistake (no intoxication is a good defence  (complete one too) to all crimes, provided that it is genuinely held (D honestly believes it at the time). It doesn’t matter that the  mistake sounds unreasonable to you and I (Morgan)
  15. Should excessive force used in self defence (N.B. some force was justified) reduce a Murder conviction to one of Manslaughter?
    • At present if a def uses excessive force in defensive action, they cannot benefit from the defence of self defence – it fails.
    • The def who has committed murder in self defence does not even have their conviction reduced from M to MSLTR.
    • Cases which illustrate this point are :-  Martin (2000), Palmer (1971)  and  Clegg (1995)-
  16. If the danger has already passed, then the force used is excessive/disproportionate
    • The defence is not available if the danger is over/threat has passed
    • This is clearly illustrated by the decisions in the case of Martin (Norfolk farmer)and Clegg(1995) (Young soldier shot joy rider in Northern Ireland).

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