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A2 Law Defences power point
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Lesson Objectives
All 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.
Key Terms
How would you define the following terms/phrases:
Self defence Defence of another Prevention of crime
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.’
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?
Degree of Force
It means in layman's 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.
Mistaken use of force in self defence
In looking at the circumstances, the defendant must be judged on the facts as he genuinely
believed them to be.
Williams [1987]D was on a bus when he saw what he thought was a man assaulting a youth. In fact it was a man trying to arrest the youth for mugging an old lady. D got off the bus and asked what was happening. The man said he was a police officer arresting the youth, but when D asked him to show his police ID card he could not do so. There was then a struggle between D and the man in which the man was injured. D was convicted of assault after the judge had directed them that D only had a defence is his mistake was a reasonable one.
The court of appeal quashed his conviction because the jury should have been told that if they thought the mistake was genuine they should judge the defendant according to his genuine mistaken view of the facts, regardless of whether this mistake was reasonable or unreasonable.
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:
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.’ ”
S.76 Criminal Justice and Immigration Act 2008
The 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)
Drunken Mistake
S. 76(5) of CJIA 2008 makes it clear that a defendant cannot rely on any mistaken belief, if that mistake is made due to the defendant being voluntarily intoxicated.
An example would be where the defendant had taken drugs which caused hallucinations causing him or her to believe that they were being attacked by snakes. If the defendant then assaults someone believing that person to be a snake, then the defendant cannot use the defence of self defence. He genuinely believes he is being attacked by a snake, but this mistake has been caused by the defendant’s voluntary intoxication.
Problems in the law of self-defence
Can you identify any problems which may arise?(3 mins)
Problems in the law of self-defence
1. 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.
Is force necessary?
What if, while walking home in the dark, D sees a large man shaking a club above his head in a threatening manner. D thinks it is necessary to defend himself and punches 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 umbrella above her head.
The jury has to decide whether D honestly believed he was being threatened. If they decide that he did, then he has the defence of self-defence. He can use force even though there was no actual threat to him.
Is force necessary?
The jury has to decide whether D honestly believed he was being threatened. If they decide that he did, then he has the defence of self-defence. He can use force even though there was no actual threat to him.
In this situation an innocent person has been hurt, but D’s actions are not criminal. S.76 CJIA 2008 makes it clear that provided that the mistake was not made due to intoxication, then D can rely on his mistake. Provided the jury decided that D did believe there was a large man shaking his club at him, D has the defence of self defence. This is so even if the mistake was not a reasonable one to make.
Problems in the law of self-defence
2. Pre-emptive strikeDoes 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.
A-G Reference (No.2 of 1983) (1984)
D’s shop had been attacked and damaged by rioters. Fearing further attacks, he made petrol bombs. D was charged with possessing an explosive substance in such circumstances as to give rise to a reasonable suspicion that he did not have it for a lawful object. D pleaded self-defence and the jury acquitted him. The A-G referred the point of law o the Court of Appeal which decided that it was correct, that D could make preparations in self defence.
Problems in the law of self-defence
3. 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.
Clegg (1996)
D was a soldier on duty at a checkpoint in Northern Ireland. A car came towards the checkpoint at speed and with its headlights full on. One of the soldiers shouted for it to stop but it did not. Clegg fired three shots at the windscreen of the car and one as it passed him. This final shot hit a passenger in the back and killed her. The evidence showed that the car had gone past Clegg by the time this last shot was fired. So it was held that he could not use self-defence because there was no danger when he fired that shot.
The force was excessive in the circumstances and his conviction for murder was upheld.
Martin (Anthony) 2002D shot two burglars who has broken into his farmhouse, one of whom died. The evidence was that the burglars were leaving when D shot them, and the burglar who died had been shot in the back. D was found guilty of murder. He appealed on the basis that the defence of self defence should have been allowed as he was suffering from paranoid personality disorder which meant that he may have genuinely (but mistakenly) thought he was in an extremely dangerous situation.
The court of appeal rejected this on the basis that the personality disorders could not be taken into account when considering the defence of self defence. However, the conviction was reduced to manslaughter on the grounds that D was suffering from diminished responsibility.
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.
Problems in the law of self-defence
4. Relevant of D’s characteristicAnother 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’.
Problems in the law of self-defence
Cairns (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.
Problems in the law of self-defenceIt is difficult to know whether these decisions are effective following the passing of the CJIA 2008. Section 76 makes it clear that the question of 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. The section continues that if the jury (or magistrates) decide that D did genuinely believe in the existence of the particular circumstances, then D is entitled to rely of self defence.
If D’s psychiatric condition makes him genuinely believe that force is necessary and the courts accept that he believed this, then surely, under the wording of the Act, D must be able to claim self defence.
However, it is doubtful that this is the interpretation the courts will use. It would have been helpful if the Act had made it clear whether a psychiatric condition which caused D to believe in the existence of circumstances was to be taken into account or not.
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.
