Self Defence/Prevention of a Crime - PowerPoint Presentation

Slide1

Self Defence/Prevention of a CrimeSlide2

Definition

D

admits AR and MR

of offence

A person can use force as is

reasonable in the circumstances

to

defend himself

or

another

or his

propertySlide3

Private Defence

Common Law

defence

A person can use such force as is

reasonable in the circumstances

if he is:

Defending

himself or his property

against an

actual or imminent attack

; or

Defending another

against such an attackSlide4

Public Defence

Criminal Law Act 1967

– person may use such force as is reasonable in the circumstances in order to:

Prevent the commission of an offence

; or

Effect a

lawful arrestSlide5

Requirements for the Private and Public Defence

Both defences clarified by

S.76 Criminal Justice and Immigration Act 2008

Both defences have the following requirements:

Necessity

of force

Reasonableness

of forceSlide6

Necessity of Force

Use of force is

not justified if it is not necessary

It will be seen to be necessary if it is

seen to be so in the circumstances which exist

or

which D genuinely believed existed (subjective)

Gladstone Williams

– a man saw a woman being robbed by a youth. He struggled with the robber to try and stop him and hand him to the police. D appeared at this point and thought the man was attacking the youth. He stepped in to protect the youth. D was successful in pleading prevention of a crime, even though he was

mistaken as to the actual facts

. His defence was based on what he

genuinely believed

was happening

S.76(5) Criminal Justice and Immigration Act 2008

– D cannot rely on a mistaken belief caused by

voluntary intoxication

O’Grady

– D who was drunk hit a friend over the head in the mistaken belief that the friend was trying to kill him – defence rejectedSlide7

Necessity of Force –

Imminent Attack

Defence comes into operation even if attack has not yet taken place providing it is imminent

i.e. – D can get in with the first blow

But difficult to establish the force he uses is reasonable

Bird

– D does not have to wait for an attack to start but can get in the first blow

A-G’s Reference (No. 2 of 1983)

– D prepared petrol bombs in fear pf an attack on his shop – held that D can make advance preparations in self-defenceSlide8

Reasonableness of Force

Jury must decide whether, in all the circumstances, the D used reasonable force

Palmer

– things to consider for reasonableness:

Was it sensible and clearly possible to take

some simple avoiding action

?

Was the attack on D

serious and dangerous

?

Was D’s retaliation

proportionate

to the necessities of the situation?

Was D’s actions

revenge or punishment

? – i.e. if the attack is over

Must recognise that a person defending themselves “

cannot weigh to a nicety the exact measure of his necessary defensive action”Slide9

Reasonableness of Force –

Excessive

Force

Clegg

– D was a soldier in Northern Ireland before the peace settlement. D was at a road checkpoint when a car came towards him at high speed. Seeing it was not going to stop, he fired at it . Last shot hit a girl passenger in the back seat and killed her. Evidence showed the car had already passed him when he fired the final shot. Held that in the circumstances

neither he nor anyone else was any longer in danger

. Plea of self-defence/defence of another failed, D guilty of murder

Martin (Anthony Edward)

– D lived in an isolated farmhouse which had been burgled in the past. D woken by sounds of someone entering his property, took his shotgun and fired without warning into the darkness. One of the intruders, 16 year old, shot in back and died. Plea of self-defence failed as

force was unreasonableSlide10

Reasonableness of Force –

Criminal Justice and Immigration Act 2008

S.76(6) –

the degree of force used by D not to be considered as

reasonable in the circumstances as he believed them

to be if it was

disproportionate in those circumstances

S.76(7) –

guidance as to whether degree of force used was reasonable in the circumstances:

A person acting for a legitimate purpose

may not be able to weigh to a nicety the exact measure of any necessary action

; and

Evidence of D having

only done what he honestly and instinctively thought was necessary

for a

legitimate purpose

constitutes strong evidence that only reasonable force was takenSlide11

Burden of Proof

Burden is on Prosecution to prove to the jury beyond all reasonable doubt that D was either:

Not acting to defend himself or another

Not acting to defend property, or not acting to prevent a crime or apprehend an offender; or

If he was so acting, the force was excessiveSlide12

Questions on Self-Defence

First consider the original offence as you normally would – AR and MR

Then consider the defence

Was there a

necessity

for the force?

In the circumstances as they actually exist? or

In the circumstances as they are genuinely believed to be by D?

But remember if D is voluntarily intoxicated, he cannot rely on his mistaken belief

There can still be necessity even if an attack hasn’t occurred yet provided it was imminent

Was the force used by D

reasonable

in the circumstances as D perceived them?

Was the force excessive? Was the threat still present or had it passed? Was the amount of force unreasonable?