Self Defence Essay - Grade: N/A PDF

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CRIMINAL LAW DEFENCE – 2 Self-defence The criminal law permits the use of reasonable force for the purpose of public or private defence. Section 3 of the Criminal Law Act 1967 provides the basic template for both public and private defence. Section 3(1) reads: A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.

Private defence, which is a subset of public defence, similarly permits the use of reasonable force in self- defence, defence of another or defence of property. To constitute defensive force, D must be acting defensively (i.e. not in retaliation or revenge) and the force used must be directed against a person posing an unjust threat. The Criminal Justice and Immigration Act 2008 has put some of the key common law principles on a statutory footing to ensure clarity and consistency of approach. They include a restatement of the rule that whether or not the use of force is lawful depends not on whether it was in fact necessary, but whether the defendant honestly believed it to be necessary (Beckford [1988]). They include, also, guidelines on matters to be taken into account in deciding whether the degree of force used was reasonable. This principle was enshrined in s.76 of the Criminal Justice and Immigration Act 2008 (CJIA) as amended by the Crime and Courts Act 2013 (s.43), which applies to all cases involving the use of force in public or private defence. Now, in a case such as Beckford, in which the defendant claimed that he used a gun because he believed he was being shot at, the jury must be asked: first, whether D might have honestly believed that he was being shot at; and second, whether, on this assumption, D’s use of the gun was proportionate to the perceived threat. The jury should also be directed that if D’s belief that he was under attack was unreasonable this would be irrelevant as a matter of law but very relevant as a matter of evidence. The more preposterous D’s supposed belief, the less likely it is that he actually held it.

The following case laws contain the guidance as to how to assess the reasonableness of the defender’s response. 1) Use of force must be necessary. If, therefore, there are other defence options available, for example locking a door to prevent the intrusion of a burglar, the use of force may not be reasonable.

2)

No duty of retreat

In Field [1972], D was told that V was coming round to attack him. D remained where he was and, in repelling V’s attack, killed him. The prosecution case was that D’s use of

force was unreasonable since he had the opportunity to retreat and seek police protection. The Court of Appeal rejected this argument and allowed the defence.

3)

Provoking an attack

A person is not disqualified from using reasonable force to defend themselves although they were originally at fault in provoking the attack. In Rashford [2005], D mounted a revenge attack on V. V himself went on the attack, along with some friends. D then sought to defend himself and killed V. The Court of

Appeal stated that the fact that D provoked the attack did not exclude his use of the defence. The defence was available so long as V’s retaliation was of a nature to justify the use of force in self-defence and if the violence used was not disproportionate to the perceived threat.

4)

Pre-emptive strike

A person can make a pre-emptive strike so long as they honestly believe an attack to be imminent (A- G’s Reference (No 2 of 1983). In Beckford (1988) Lord Griffith made the following statement of principle: 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.

5)

Reasonable force decided objectively

Whether the degree of force used is reasonable is decided objectively rather than from the defender’s point of view. S. 76(6) of the Criminal Justice and Immigration Act 2008 enshrines this approach: The degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances. In deciding whether it was disproportionate, s.76(7) says: the following considerations are to be taken into account (so far as relevant in the circumstances of the case) – (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; and (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.

Notice, however, that the defender’s honest and instinctive belief is only evidential. It cannot override the requirement that the degree of force used must be proportionate to the threat. In R v Clegg, a private soldier serving with the Parachute Regiment in West Belfast fired four shots into an oncoming car at a road block. The final shot killed a passenger in the back seat. D’s defence was that he had fired because he had thought that a colleague’s life was in danger. In relation to the first three shots the judge had accepted that D may have fired in self-defence or in defence of his colleague. However, the fourth shot had been fired at the car after it had passed. It could no longer, therefore, ground the defence of self- defence since the danger had passed. Any use of force thus became automatically unreasonable whatever D’s degree of stress. Again, in R v Martin, D shot dead a burglar because he overestimated the danger to which he was subject. The Court of Appeal, upholding D’s conviction, restated the rule that the question as to how much force is lawful is a question of law and is an objective question. D’s honest assessment of the degree of force necessary was not decisive. It could not be objectively reasonable to shoot a burglar in the absence of any evidence of physical threat, however scared he was. A similar result occurred in Yaman [2012].

Both Yaman and Martin illustrate the kind of problems likely to arise when householders are unexpectedly confronted with an intruder. In 2013, the Government made another attempt to ensure that public perceptions of the scope of the defence corresponded with the legal underpinnings. Section 43 of the Crime and Courts Act 2013 adds a new subs. (5A) to s.76 of the CJIA. The effect of subs.(5A) is

to apply a lower standard of reasonableness of reaction to the householder than for the defence generally, to give householders ‘greater latitude in terrifying or extreme situations where they may not be thinking clearly about the precise level of force that is necessary to deal with the threat faced.’ (Ministry of Justice circular). In R v Ray [2017] the Court of Appeal approved this approach. In their view, the amendment had simply, in householder cases, ‘slightly refined the common law so that a degree of force used that is disproportionate may nevertheless be reasonable so long as it is not grossly disproportionate’. Whether, despite being disproportionate, it is reasonable or not is a matter for the jury, taking into account the context and all the circumstances....