Self Defence

Self Defence

Self defence is a full defence to any crime. If successful, the defence acquits the defendant.

‘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.’ [1]

Both objective and subjective conditions are to be considered by the jury.

Subjective Condition:

The defendant must believe there is a need to repel an immediate threat by action.

‘decided in reference to the circumstances as D believed them to be…’ [2]

A person likely would not make a completely sound decision in a case where they needed to use self-defence. Therefore, their honest belief in the threat must be taken into account.

In cases where the defendant was mistaken (when making a pre-emptive strike), the defence can be used if the jury believe that the defendants actions were reasonable given the circumstances. [3] This gives the defendant the freedom to act first to prevent harm.

In Williams, D was judged on the facts as he believed them to be, even though it may have been an unreasonable mistake.

In Palmer, P shot at 3 men who were chasing him with sticks and stones. One of the men died. The jury convicted him of murder. P appealed the case, asking for manslaughter. The court ruled that self-defence either succeeds entirely and acquits or fails.

Morris LJ: ‘a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary, that would be the most potent evidence that only reasonable defensive action had been taken’

In Beckford, a police officer (B) was issued with a shotgun and ammunition with other armed police officers to a house. B alleges that he merely returned fire when shot at, but not gun was found on the victim. The jury convicted of murder, but appeal was allowed, and conviction quashed.

‘A man who is attacked in circumstances where he reasonably believes his life to be in danger or that is in danger of serious bodily injury may use such force as on reasonable grounds he thinks necessary in order to resist the attack and if in using such force he kills his assailant he is not guilty of any crime even if the killing is intentional.’

The defendant's mental state is relevant to the subjective element.

‘The jury can take into account the physical characteristics of D. But it is not appropriate, except in exceptional circumstances…, in deciding whether excessive force was used, to take into account whether D is suffering from a psychiatric condition.’ [4]

Objective Condition:

The jury will determine whether the defendants actions were reasonable in comparison to another person in all circumstances.

‘Whether the degree of force used by D was reasonable in the circumstances.’ [5]

Exceptions:

Self-defence cannot be relied upon when the defendant made a mistake made during voluntary intoxication, unless the action was reasonable, necessary and not excessive. [6] The reason for the attack cannot be because of the intoxication.

Where the force used was excessively more than ‘absolutely necessary’. The action must have been the only reasonable course of action.

In Clegg, a soldier (C) shot 3 times at a car driving towards him. C got out of the way and fired a fourth shot at the car once it had passed, killing a passenger. The House of Lords held that first 3 shots were fired in self-defence, but the final one was not as there was no longer a threat to C.

In Burns, B picked up a prostitute. B drove P to some woods but changed his mind and asked P to leave. P refused and B forcibly removed her. B charged with assault. The Court of Appeal held that self-defence fails because B was not protecting his property from a risk of harm.

Where the defendant had a reasonable possibility to retreat / escape, the defence will fail.

The defendant may still rely on the defence even if they started the violence, provoked it or entered into it willingly if the victim had retaliated. [7] This only applies where the violence offered by the victim was so out of proportion to the defendants original aggression that the roles, in effect, had reversed. [8]

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References:

[1] Criminal Law Act 1967 s3 [2] Criminal Justice and Immigration Act (2008) s76(3) [3] AG’s Reference (No. 2 of 1983) [1984] QB 456 (CA) [4] R v Martin (Anthony Edward) [2001] EWCA Crim 2245 [5] Criminal Justice and Immigration Act (2008) s76(3) [6] R v Hatton [2006] 1 Cr App R 16 [7] R v Rashford [2005] EWCA Crim 3377 (2006) Crim LR 547 [8] R v Keane, McGrath [2010] EWCA Crim 2514

Cases Mentioned:

R v Gladstone Williams (1984) 78 Cr. App. R. 276

R v Palmer (1971) AC 814

Beckford v R [1988] 1 AC 130

R v Clegg [1995] 1 AC 482; [1995] 3 All ER 159

R v Burns [2010] EWCA Crim 1023