1. Self Defence, Defence of Another & Prevention of Crime 14.03.2012 firstname.lastname@example.org
2. Lesson ObjectivesAll learners will be able to:Define self defence, defence of another and prevention of crime.Describe 2 cases in regard to self defence.Most learners will be able to:Recall the section and Act in regard to self defence.Describe 3 cases.Some learners will be able to:Identify A02 marks on this topic and discuss these.Describe 4 cases.
3. Key TermsHow would you define the following terms/phrases: Self defence Defence of another Prevention of crime
4. An overview This covers not only actions needed to defend oneself from attack (self defence), but also actions taken to defend another. The defences of self defence and defence of another are common law defences which justify the defendant’s actions. In addition there is a statutory defence of prevention of crime under s.3(1) of the Criminal Law Act 1967 which states that‘a person may use such force as is reasonable in the circumstances in the prevention of crime.’
5. Degree of force The amount of force under these types of defences is explained in the Criminal Justice and Immigration Act 2008:(a) That a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; (b) That evidence of a person’s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose’.Can you define what these sections mean in your own words?
6. Degree of Force It means in laymans terms:(a) Allows for the fact that a person who is facing an attack by another is under stress and cannot be expected to calculate the exact amount of force which needs to be used in the circumstances. (b) If there is evidence that the person ‘honestly and instinctively’ thought the level of force he used to protect himself or another or to prevent crimes was reasonable, then this provides strong evidence that the defensive action taken was reasonable in the circumstances. However if force is used after all danger from the assailant (revenge) is over the defence is not available.
7. Mistaken use of force in self defenceIn looking at the circumstances, the defendant must be judged on the facts as he genuinely believed them to be.
8. Williams D was on a bus when he saw what he thought was a manassaulting a youth. In fact it was a man trying to arrest theyouth for mugging an old lady. D got off the bus and askedwhat was happening. The man said he was a police officerarresting the youth, but when D asked him to show hispolice ID card he could not do so. There was then a strugglebetween D and the man in which the man was injured. Dwas convicted of assault after the judge had directed themthat D only had a defence is his mistake was a reasonableone.The court of appeal quashed his conviction because thejury should have been told that if they thought the mistakewas genuine they should judge the defendant according tohis genuine mistaken view of the facts, regardless ofwhether this mistake was reasonable or unreasonable.
9. Mistaken use of force in self-defence Section 76 of the Criminal Justice and Immigration Act 2008 puts the decision in Williams onto a statutory footing. This section states:
10. S.76 Criminal Justice and Immigration Act 2008“ s.76(3) The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be …s.76(4) ‘If D claims to have held a particular belief as regards the existence of any circumstances – (a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but (b) if it is determined that D did not genuinely hold it, D is entitled to rely on it for the purposes of subsection (3) whether or not – (i) it was mistaken, or (ii) (if it was mistaken) the mistake was a reasonable one to have made.’ ”
11. S.76 Criminal Justice and Immigration Act 2008The important point is to establish the facts as the defendant genuinely believed them to be. If the defendant genuinely made a mistake then he is to be judged on the facts as he believed them to be. This is so, even if the mistake was unreasonable (Williams)
12. Drunken MistakeS. 76(5) of CJIA 2008 makes it clear that a defendantcannot rely on any mistaken belief, if that mistake ismade due to the defendant being voluntarilyintoxicated.An example would be where the defendant had takendrugs which caused hallucinations causing him or herto believe that they were being attacked by snakes. Ifthe defendant then assaults someone believing thatperson to be a snake, then the defendant cannot usethe defence of self defence. He genuinely believes he isbeing attacked by a snake, but this mistake has beencaused by the defendant’s voluntary intoxication.
13. Problems in the law of self-defenceCan you identify any problems which may arise? (3 mins)
14. Problems in the law of self-defence1. Is force necessary? The first point to be decided if the defence is to succeed is whether force is necessary. This is a question for the jury. In many cases it is straightforward, e.g. if the facts are that the victim had a knife in his hand and came towards to defendant saying ‘I am going to slash you to pieces’, it is quite clear that force is necessary in self-defence in this situation.In other situations it is more difficult to decide.
15. Is force necessary?What if, while walking home in the dark, D sees a largeman shaking a club above his head in a threateningmanner. D thinks it is necessary to defend himself andpunches the man hard, knocking him to the ground.The man was in actual fact an old woman, and the‘club’ was the woman trying to open an umbrellaabove her head.The jury has to decide whether D honestly believed hewas being threatened. If they decide that he did, thenhe has the defence of self-defence. He can use forceeven though there was no actual threat to him.
16. Is force necessary?The jury has to decide whether D honestly believed he wasbeing threatened. If they decide that he did, then he hasthe defence of self-defence. He can use force even thoughthere was no actual threat to him.In this situation an innocent person has been hurt, but D’sactions are not criminal. S.76 CJIA 2008 makes it clear thatprovided that the mistake was not made due tointoxication, then D can rely on his mistake. Provided thejury decided that D did believe there was a large manshaking his club at him, D has the defence of self defence.This is so even if the mistake was not a reasonable one tomake.
17. Problems in the law of self-defence2. Pre-emptive strike Does a person have to wait until they are attacked before they can use force? The law appears to be clear that they can act to prevent force. It is not necessary for an attack to have started. In the previous example, no attack had started. D thought he was about to be attacked and reacted to save himself from being attacked. This appears to be a sensible rule since it would be ridiculous if a person had to wait until they were stabbed or shot before being allowed to defend themselves. The problem is that again people can be attacked if they were perceived to be a threat, when really they were not.
18. A-G Reference (No.2 of 1983) (1984)D’s shop had been attacked and damaged byrioters. Fearing further attacks, he made petrolbombs. D was charged with possessing anexplosive substance in such circumstances as togive rise to a reasonable suspicion that he did nothave it for a lawful object. D pleaded self-defenceand the jury acquitted him. The A-G referred thepoint of law o the Court of Appeal which decidedthat it was correct, that D could makepreparations in self defence.
19. Problems in the law of self-defence3. Excessive Force. A major problem is where a defendant uses excessive force in self defence. If this is so then he cannot use self-defence as a defence. If he is charged with any assault charge, the judge can take any issues of self-defence into consideration when passing sentence. However, where such a defendant is charged with murder, he MUST be given a life sentence.
20. Clegg (1996)D was a soldier on duty at a checkpoint in Northern Ireland.A car came towards the checkpoint at speed and with itsheadlights full on. One of the soldiers shouted for it to stopbut it did not. Clegg fired three shots at the windscreen ofthe car and one as it passed him. This final shot hit apassenger in the back and killed her. The evidence showedthat the car had gone past Clegg by the time this last shotwas fired. So it was held that he could not use self-defencebecause there was no danger when he fired that shot.The force was excessive in the circumstances and hisconviction for murder was upheld.
21. Martin (Anthony) 2002D shot two burglars who has broken into his farmhouse, one ofwhom died. The evidence was that the burglars were leaving whenD shot them, and the burglar who died had been shot in the back. Dwas found guilty of murder. He appealed on the basis that thedefence of self defence should have been allowed as he wassuffering from paranoid personality disorder which meant that hemay have genuinely (but mistakenly) thought he was in anextremely dangerous situation.The court of appeal rejected this on the basis that the personalitydisorders could not be taken into account when considering thedefence of self defence. However, the conviction was reduced tomanslaughter on the grounds that D was suffering from diminishedresponsibility.
22. Problems in the law of self-defence The Government Consultation paper, Murder, manslaughter and infanticide: proposals for reform of the law has a proposal for a partial defence of ‘killing in response to fear of serious violence’. This would be available to someone who overreacts to what they perceive as an imminent threat and would reduce the charge to manslaughter. If this proposal becomes law, then defendants in cases such as Clegg and Martin, would be able to use this partial defence.
23. Problems in the law of self-defence4. Relevant of D’s characteristic Another point is whether D’s characteristics can be taken into account in deciding if D thought that he needed to defend himself. In Martin (Anthony) (2002) the CA held that psychiatric evidence that D had a condition entailing that he perceived much greater danger than the average person was NOT relevant to the question of whether D had used reasonable force. One of the reasons for this decision was that self- defence is usually raised in cases of minor assault and it would be ‘wholly disproportionate to encourage medical disputes in cases of that sort’.
24. Problems in the law of self-defenceCairns (2005) the CA followed the decision in Martin (2002) and held that when deciding whether D had used reasonable force in self defence, it was not appropriate to take into account whether D was suffering from psychiatric condition (such as paranoid schizophrenia) which may have caused him to have delusions that he was about to be attacked.
25. Problems in the law of self-defenceIt is difficult to know whether these decisions are effectivefollowing the passing of the CJIA 2008. Section 76 makes it clearthat the question of whether the degree of force used by D wasreasonable in the circumstances, is to be decided by reference tothe circumstances as D believed them to be. The section continuesthat if the jury (or magistrates) decide that D did genuinely believein the existence of the particular circumstances, then D is entitledto rely of self defence.If D’s psychiatric condition makes him genuinely believe that force isnecessary and the courts accept that he believed this, thensurely, under the wording of the Act, D must be able to claim selfdefence.However, it is doubtful that this is the interpretation the courts willuse. It would have been helpful if the Act had made it clear whethera psychiatric condition which caused D to believe in the existence ofcircumstances was to be taken into account or not.
26. Recap Test – 10 minutes.1. What is the name of the Act which decided whether an act of self defence is reasonable or unreasonable?2. What is the main section of this Act?3. Name the 5 cases under this topic.4. Describe these cases.5. What are the 3 main problems of law in self- defence.