General Defences - Lecture notes Self Defence PDF

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GENERAL DEFENCES● SELF DEFENCE: S CJIA 2008○ The question arises whether the degree of force used by D against a person was reasonable in the circumstances. ■ Clarification and reform due to public concern in cases where householders have been prosecuted for seriously injuring/killing intruders - mo...

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GENERAL DEFENCES ● SELF DEFENCE: S.76 CJIA 2008 ○ The question arises whether the degree of force used by D against a person was reasonable in the circumstances. ■ Clarification and reform due to public concern in cases where householders have been prosecuted for seriously injuring/killing intruders - more force allowed in dealing with trespassers. - Reasonable in the circumstances: S.76(3) CJIA 2008 - SUBJECTIVE TEST: Whether force is reasonable in the circumstances is to be decided by reference to circumstances as D believed them to be. - Beckford v R [1988]: Police officers shot and killed an unarmed man, who was trying to surrender in the mistaken belief that he was armed and dangerous. Decided that we look at the question of reasonable force through the eyes of D. ‘How much force is reasonable to use to deal with an armed and dangerous man?’ - Gladstone v Williams [1984]: D attacked a man who he thought was committing a crime of assault, when he was actually conducting an arrest. - Faraj [2007]: D mistook a gasman for a burglar and used force to detain him. ➔ Why a subjective test for circumstances? ◆ Beckford v R [1988]: Lord Griffiths - DPP v Morgan: Looking at the law of rape ‘genuine belief, without reasonable grounds’; Although now this principle is outdated and is replaced by ‘reasonable belief’ SOA 2003. ◆ Oye [2013]: An insane belief cannot generate self-defence. ● Reasonableness: S.76(4) CJIA 2008 ○ If the belief is a reasonable one, then that is evidence that D genuinely held it. ■ Mistake not relevant, even if unreasonable. ★ TRIGGER - SUBJECTIVE; RESPONSE - OBJECTIVE - Reasonable force: OBJECTIVE RESPONSE: What constitutes reasonable force? ➔ Yaman [2012]: Man thought there were burglars in his shop. In fact, they were gas engineers to disconnect a metre. D struck V with a hammer. ◆ It would be inappropriate for D to be the judge of what is reasonable. ◆ Force was over the top; unreasonable. - R v Scarlett [1993]: Landlord threw a drunk out of her pub. - Ownino [1996]: CA re-established that the second part of the test is objective. ● Proportionality: S76(6) CJIA 2008 ○ Not reasonable if disproportionate. ■ Allows greater latitude in householder cases - S.76(5A) CJIA 2008: Not reasonable if grossly disproportionate. ● Where D is not a trespasser, but he is in a dwelling and he uses force against somebody who is/who he believes to be a trespasser. ● Cheeseman [2019]: D, who was a soldier, living in forces accommodation used force against V, who he had originally invited into his room, but told V to leave when V began to do damage to D’s property. ○ At the point where he was told to leave, he became a trespasser. - Necessity and Instinct: S.76(7) CJIA 2008 - A person acting for a legitimate purpose may not be able to weight to a nicety the exact measure of any necessary action. - What he honestly and instinctively thought was necessary. - Palmer v R [1971]: Lord Morris - D who ‘in a moment of unexpected anguish’ had only done what he honestly and instinctively thought was necessary. - R Collins v Sec St [2016]: Collins entered the home of B, in the early hours of the

morning, and he went upstairs intending to steal but he was spotted with keys and a mobile phone belonging to the family and B tackled him and put him in a headlock. Police came but the burglar suffered brain damage as a result. - Any jury would apply the householder defence - not grossly disproportionate force. - The court had to look whether there was a valid Article to challenge. - Article 2 (right to life) requires states to provide a proper framework to deter/punish offences vs the person. - Householders are liable for the full range of OAP offences. Selfdefence allows only ‘reasonable force’ in all cases. - D cannot go ‘over the top’. ● Mental Disorder: Does not come into account. ○ Martin [2002]: D shot and killed a burglar. On appeal there was new evidence that his personality disorder made him perceive an exaggerated threat to his personal safety. ■ Not taken into account if D suffering from some psychiatric condition, except in exceptional circumstances (but does not say what those are). ○ Press v Thompson [2013]: D suffered from PTSD which made him more prone to anticipate a threat. CA said PTSD could be taken into account in relation to S.76(7) but not in relation of what was proportionate/reasonable. - A DUTY TO RETREAT? - At one time considered necessary for self defence: Julien [1969]. - BUT, Bird [1985]: D was having a party in her house and her ex boyfriend turned up and began abusing her. She hit him in the face with a glass and took his eye out. - Not necessary in every case to require D to back off. Placed too great an obligation on D. - S.148 LASPOA 2012: A possibility that D could have retreated is to be considered as a factor to be taken into account, rather than as giving rise to a duty to retreat. - Pre-Emptive Strike/D invites force: - Beckford v R [1988]: A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot – circumstances may justify a preemptive strike. - Devlin v Armstrong [1971]: The anticipated attack must be imminent. ➔ And D may start the fight as the aggressor but still rely on self-defence if the tables are turned: ◆ Rashford [2005] EWCA Crim 3377: D went looking for V with a knife, but he was still able to use self defence; Keane[2010] EWCA Cr...