Defences

1. Defences Self-defence/Prevention of Crime

2. Lesson Objectives • I will be able to state the definition of the defence of self-defence/prevention of crime • I will be able to distinguish between self-defence and prevention of crime • I will be able to apply the rules to a given situation

3. Self-defence/Prevention of Crime • This topic is sometimes called public and private defence. This is due to the fact that the common law defence of self-defence is extended and, to some extent superseded, by the statutory defence of public defence (prevention of crime) under the Criminal Law Act 1967, s3 • As the two do overlap, the idea of self-defence is still relevant as it may be that a person is defending themselves from someone who is not, in fact, committing a crime, e.g. because that person is insane

4. Self-defence is just defending yourself or another, whereas the statutory defence deals with prevention of crime. These are two separate defences • The two overlap and are essentially the same but should be treated separately

5. Criminal Law Act 1967, s3 • This section provides: • 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 The following points need to be considered: • The necessity of force • The reasonableness of force

6. The necessity of force • The basic principle is that the use of force is not justified if it is not necessary. It will be necessary if it is seen to be so in the circumstances which exist or which the defendant genuinely believed existed • This is seen in Gladstone Williams (1987) – the defendant believed a youth was being attacked when in fact his victim was trying to arrest the youth

7. Williams 1987 This case shows that if D mistakenly believes someone is being assaulted then self-defence may be relied on even if there was no actual assault Even if the mistake is unreasonable S 76 clarifies that the mistake need not be reasonable, but the more reasonable it is, the more likely it was genuinely held However, the force must be reasonable in the (mistaken) circumstances

8. Pre-emptive strike – the defence comes into operation even if the attack has not yet taken place providing it is imminent – the defendant does not have to wait to be attacked and can strike the first blow – Bird (1985) • The difficulty with this is establishing that the force he uses is reasonable • The defendant does not have a duty to retreat as far as possible before using force – Bird (1985)

9. The reasonableness of force • The jury have the task of deciding whether, in all circumstances, the defendant used reasonable force. The jury, of course, can take as long as they need to balance the facts • The defendant usually does it in a split second so he may use excessive force • Lord Morris of Borth-y-Gest said in Palmer (1971) "If there has been an attack so that defence is reasonably necessary, it should be recognised that a person defending himself cannot weigh to a nicety the exact measure of necessary defensive action. If a jury is of the opinion that in a moment of unexpected anguish the person attacked did only what he honestly and reasonably thought was necessary, that should be regarded as most potent evidence that only reasonably defensive action was taken."

10. Clegg (1995) and Martin (2001) demonstrate the extremes to which a jury must go when considering what amounts to reasonable force

11. Proportionality • The question of proportionality arises in the Criminal Justice and Immigration Act 2008 • Section 76(6) makes plain that the degree of force used by a person is not to be regarded as having been reasonable in the circumstances as he believed them to be if it was disproportionate in those circumstances • Guidance as to whether the degree of force used was reasonable in the circumstances of a case can be found in s76(7) which provides: • That a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of necessary action; and • 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

12. Reasonable force • S 76 Criminal Justice and Immigration Act 2008 explains the degree of force which can be used • S 76 applies whether D is relying on the common law defence of self-defence or the statutory defence of prevention of crime • Whether force is reasonable is decided by reference ‘to the circumstances as D believed them to be’

13. Other issues • Under s 76 (5) D cannot rely on a mistaken belief caused by voluntary intoxication • If D is not intoxicated, the jury must decide whether the force was reasonable based on D’s perception of the facts (Williams) • If it is excessive the defence fails – Clegg • In Martinthe farmer shot and killed a burglar and seriously injured another. The jury rejected self-defence as they were retreating and there was clearly no threat

14. The 2 questions • There are essentially 2 questions for the jury • Did D genuinely believe force was necessary in the circumstances? (What D believed; a subjective question) • Was the degree of force reasonable in those circumstances? (An objective question) • S 76 makes clear that the second is decided by reference to the first • This makes the decisions in Martin & Cairns seem wrong

15. Summary

16. Self-defence Case Questions

17. Case 56 Questions R v Williams (Gladstone) (1984) 1 What was the verdict in this case? 2 What defence had the defendant tried to rely on? 3 What mistake had the defendant made? 4 How should a person who has made a mistake as to the facts of a situation be judged? 5 Does the defendant’s belief have to be reasonable? 6 What are the implications for the defendant if his or her belief is entirely unreasonable?

18. Case 56 Answers 1 The defendant was found not guilty. 2 He tried to argue that he had acted in self-defence. 3 He had made a mistake as to the facts of the case and had thought — incorrectly — that self-defence was required. 4 The court held that the defendant should be judged against the mistaken facts as he honestly believed them to be. 5 No. The mistake does not have to be reasonable, as long as it is honestly held by the defendant. 6 The defendant may rely on an unreasonable belief, as long as it was honestly held. The more unreasonable the belief, however, the less likely the jury is to believe that the defendant honestly held it.

19. Case 57 Questions R v Bird (1985) 1 What was the verdict in this case? 2 Following this case, does a person have to retreat if possible or show that he or she is not willing to fight? 3 Does a person need to wait to be attacked before he or she can use self-defence? 4 Can a person prepare for a possible attack? 5 What happened in Attorney General’s Reference (No. 2) (1983)? 6 What happens if the defendant makes a mistake and wrongly thinks that self-defence is necessary?

20. Case 57 Answers 1 The defendant was found not guilty. 2 No. This would mean that self-defence was only available to those who were unable to retreat. In this case, the Court of Appeal said that there may be situations when the defendant might react immediately without retreating. The matter is one for the jury to consider. 3 No. Pre-emptive strikes are included within this defence, which means that the defendant does not need to wait to be attacked before defending himself or herself. 4 Yes. If the defendant believes that he or she is at risk from an attack on his or her person or property, he or she may be able to make preparations in order to defend himself or herself.

21. Case 57 Answers continued 5 The defendant’s shop had been attacked during riots. To try to prevent this from happening again, he made petrol bombs that he intended to use should he face attack in the future. However, there was no further attack. The defendant was charged with breaching the Explosive Substances Act 1883 by having an explosive substance in his possession. He relied on self-defence and was found not guilty under the Act. On appeal, his acquittal was upheld. 6 If a defendant makes a mistake and thinks that self-defence is necessary, he or she will be judged on the facts as he or she honestly believed them to be (R v Williams (Gladstone), 1984). This is still the case if the mistake was unreasonable.

22. Case 58 Questions R v Clegg (1995) 1 When can force be used? 2 What is the effect of a successful plea of self-defence? 3 Who has the burden of proof? 4 What test is used to determine whether force is reasonable? 5 Once the defendant has shown that force was necessary, what must he or she prove in order to rely on the defence? 6 Why was the defendant in this case unable to rely on self-defence?

23. Case 58 Answers 1 Force can be used in order to: defend oneself, another or property prevent crime arrest an offender 2 If a defendant is acting to protect himself or herself, another or property, providing that the force used is reasonable, he or she has a complete defence to any crime since the justifiable use of force means his or her actions are not unlawful. Thus, if successful, he or she will be found not guilty. 3 Once the defendant has raised the issue of self-defence or there is some other evidence of it, it is up to the prosecution to prove beyond reasonable doubt that the defendant was not acting in self-defence or that the force used was unreasonable.

24. Case 58 Answers continued 4 The test is whether a person used such force as was objectively reasonable in the circumstances as he or she believed them to be. 5 He or she must prove that the force used was reasonable in the circumstances. The problem is that there is no definition of ‘reasonable force’, and it is a matter for the jury to decide in each case. The jury must take various factors into account including the threat of harm, the urgency of the situation and any other options available to the defendant. A lower degree of force will be expected if the defendant is protecting property rather than people. 6 The firing of the shot that killed the passenger was found to be an excessive use of force. The defence fails if a defendant uses a greater degree of force than is necessary in the circumstances.

25. Extras

26. Topic 7 Self-defence

27. Self-defence Introduction There are three situations where the use of force may be justified: Self-defence: this is a common-law defence, often termed ‘private defence’, which also includes defence of another person and defence of property. Defence of property: this area is regulated partially by common law and partially by statute, namely the Criminal Damage Act 1971. Prevention of crime: this is a public or statutory defence covered by the Criminal Law Act 1967, which states at s.3(1): ‘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.’

28. Self-defence Elements (1) • For force to be justified, it must have been necessary. • The defendant is judged in the circumstances as he or she honestly believed them to be. • To decide whether force was necessary, the jury will consider the surrounding circumstances. • The force must also be reasonable – this is a matter for the jury in each case.

29. Self-defence Elements (2) • Pre-emptive strikes are permissible, so a person does not have to wait to be attacked before defending himself or herself. • A defendant can use threats of force or threats of death in order to try to stop an attack on himself or herself, or to prevent a crime. • If the defendant believes that he or she is at risk of an attack on his or her person or property, he or she may be able to make preparations in order to defend himself or herself.

30. Self-defence Elements (3) • A defendant is not under a duty to retreat. • If a defendant makes a mistake and thinks that self-defence is necessary, he or she will be judged on the facts as he or she honestly believed them to be. This is still the case if the mistake was unreasonable. • If the defendant uses excessive force, the defence will fail.

31. Self-defence Evaluation (1) The ‘all or nothing’ effect A situation may arise where some force is justified but the defendant uses too much. This means that the defence fails and critics have argued that this can lead to unfair results. For some offences, the need for some force can be taken into account when sentencing the defendant. In murder cases, however, the mandatory nature of the sentence means that this is not possible and the defendant will be convicted and sentenced to life imprisonment.

32. Self-defence Evaluation (2) Intoxication The current rule is that a defendant will not be able to rely on a mistaken belief that self-defence is required if that mistake has been made due to intoxication. This has been criticised as being too harsh, particularly given that intoxication is a defence to specific intent crimes.

33. Self-defence Reform (1) Allow an alternative conviction of manslaughter To combat criticism of the ‘all or nothing’ nature of the defence, it has been suggested that where some force is justified but the defendant uses too much and causes the death of the victim, it should be open to the jury to convict him or her of manslaughter rather than murder. This argument was rejected in Clegg, but the Law Commission, in its consultation document ‘Partial Defences to Murder’ (2003), suggested that this area needs to be re-examined.

34. Self-defence Reform (2) Change the ruling in O’Grady The rule in O’Grady is seen by some as too harsh, and it has been suggested that mistakes as to the need for self-defence induced by intoxication should operate as a defence.