SELF DEFENCE - Lecture - Criminal Law, Lecture notes of Criminal Law

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SELF DEFENCESELF DEFENCE

FORCE AS IS REASONABLE FORCE AS IS REASONABLE

COMMON LAWCOMMON LAW

 (^) SELF DEFENCESELF DEFENCE  (^) DEFENCE OF ANOTHERDEFENCE OF ANOTHER  (^) DEFENCE OF PROPERTYDEFENCE OF PROPERTY  (^) CRIMINAL LAW ACT 1967 s3 (1)CRIMINAL LAW ACT 1967 s3 (1)  (^) PREVENTION OF CRIMEPREVENTION OF CRIME  (^) LAWFUL ARRESTLAWFUL ARREST  (^) Section 76 Criminal Justice andSection 76 Criminal Justice and Immigration Act 2008Immigration Act 2008  (^) Purports to "clarify" the operation of thePurports to "clarify" the operation of the common law.common law.

MISTAKE OF FACT AND SELFMISTAKE OF FACT AND SELF

DEFENCE DEFENCE

 (^) R V BECKFORD [1988] AC 130R V BECKFORD [1988] AC 130

 (^) ' A PERSON MAY USE SUCH FORCE AS IS' A PERSON MAY USE SUCH FORCE AS IS REASONABLE IN THE CICUMSTANCES AS HEREASONABLE IN THE CICUMSTANCES AS HE HONESTLY BELIEVES THEM TO BE...'HONESTLY BELIEVES THEM TO BE...'  (^) R V GLADSTONE WILLIAMS ( 1984) 78 CRR V GLADSTONE WILLIAMS ( 1984) 78 CR APP REP 276APP REP 276  (^) R V OGRADY [1987] 3 ALL ERR V OGRADY [1987] 3 ALL ER (^420420)  (^) R V HATTON (Jonathan)(2006)1 CR App R 16R V HATTON (Jonathan)(2006)1 CR App R 16

PRE EMPTIVE STRIKESPRE EMPTIVE STRIKES

 (^) R V BECKFORD [1988] AC 130R V BECKFORD [1988] AC 130  (^) DUTY TO RETREAT?DUTY TO RETREAT?

 (^) EXCESSIVE FORCEEXCESSIVE FORCE  (^) R V CLEGG [1995] 1 ALL ERR V CLEGG [1995] 1 ALL ER (^334334)  (^) PROPORTIONALITY TESTPROPORTIONALITY TEST  (^) R V SCARLETT [1993] 4 ALL ER 629R V SCARLETT [1993] 4 ALL ER 629  (^) R V OWINO [1995] CLR 743R V OWINO [1995] CLR 743  (^) DPP V ARMSTRONG – BRAUN [1999] CRIM Lr 416DPP V ARMSTRONG – BRAUN [1999] CRIM Lr 416  (^) RE A (children)(conjoined twins :surgicalRE A (children)(conjoined twins :surgical separation)[2000]ALLER 961separation)[2000]ALLER 961

POLICE AND CPSPOLICE AND CPS

GUIDELINES GUIDELINES

 (^) PURPOSE OF THE STATEMENTPURPOSE OF THE STATEMENT  (^) To inform the public how to react if they are faced with an intruderTo inform the public how to react if they are faced with an intruder in their home.in their home.  (^) DOES THE LAW PROTECT ME? WHAT IS REASONABLE FORCE?DOES THE LAW PROTECT ME? WHAT IS REASONABLE FORCE?  (^) Anyone can use reasonable force to protect themselves orAnyone can use reasonable force to protect themselves or others,or to carry out an arrest or prevent a crime.So long as youonly do what you honestly and instincitively believe is necessaryothers,or to carry out an arrest or prevent a crime.So long as youonly do what you honestly and instincitively believe is necessary in the heat of the moment.This is still the case if you usesomething to hand as a weapon.in the heat of the moment.This is still the case if you usesomething to hand as a weapon.

 (^) DO I HAVE TO WAIT TO BE ATTACKED?DO I HAVE TO WAIT TO BE ATTACKED?  (^) No not if you are in your own home and in fear for yourself orNo not if you are in your own home and in fear for yourself or others .In those circumstances the law does not require you towait be attacked before using defensive force yourself.others .In those circumstances the law does not require you towait be attacked before using defensive force yourself.

WHAT IF THE INTRUDER DIES?WHAT IF THE INTRUDER DIES?

 (^) If you have acted in reasonable self defence,andIf you have acted in reasonable self defence,and the intruder dies you will still have actedthe intruder dies you will still have acted lawfully.However,if for example:lawfully.However,if for example:  (^) having knocked someone unconscious,you thenhaving knocked someone unconscious,you then decide to to further hurt or kill them to punishdecide to to further hurt or kill them to punish them;orthem;or  (^) you knew of an intended intruder and set a trap toyou knew of an intended intruder and set a trap to hurt or to kill them rather than involve the police,hurt or to kill them rather than involve the police,

 (^) you would be acting with excessive and gratuitousyou would be acting with excessive and gratuitous force and could be prosecuted.force and could be prosecuted.

Section 76 CJI Act 2008Section 76 CJI Act 2008

 (^) Puts four principles of the common lawPuts four principles of the common law

into Statutory form.into Statutory form.  (^) 1) Use of force reasonable in1) Use of force reasonable in circumstances as d believed them to becircumstances as d believed them to be (even if belief mistaken or(even if belief mistaken or unreasonable)unreasonable)  (^) 2)D cannot rely on belief if attributable2)D cannot rely on belief if attributable

to voluntary intoxication.to voluntary intoxication.  (^) 3) A disproportionate degree of force not3) A disproportionate degree of force not

reasonable.reasonable.

 (^) 4)Take into account that a person acting4)Take into account that a person acting for a "legitimate purpose" (in self defencefor a "legitimate purpose" (in self defence or prevention of crime or lawful arrest)or prevention of crime or lawful arrest) may not be able to "weigh to a nicety themay not be able to "weigh to a nicety the exact measure of any necessary action",exact measure of any necessary action", and:"that evidence of a person's havingand:"that evidence of a person's having only done what the person honestly andonly done what the person honestly and instinctively thought was necessary for ainstinctively thought was necessary for a legitimate purpose constitutes STRONGlegitimate purpose constitutes STRONG EVIDENCE that only reasonable actionEVIDENCE that only reasonable action was taken by that person for that purposewas taken by that person for that purpose

MISTAKEMISTAKE

 REASONABLE?REASONABLE?

 DPP V MORGAN [1975]DPP V MORGAN [1975]

 (^) sexual offences amendment act 1976sexual offences amendment act 1976

S1S  (^) Sexual Offences Act 2003Sexual Offences Act 2003

 (^) ASSAULTASSAULT

 (^) R V GLADSTONE WILLIAMS [1984]R V GLADSTONE WILLIAMS [1984]

DURESSDURESS

 NATURE OF THE THREATNATURE OF THE THREAT

 R V SINGH [1973] 1 WLR 1600R V SINGH [1973] 1 WLR 1600

 R V VALDERAMA-VEGA [1985] CRIMR V VALDERAMA-VEGA [1985] CRIM

LR 220LR 220

 THIRD PARTIESTHIRD PARTIES

 (^) R V ORITZ (1986) Crim App R 173R V ORITZ (1986) Crim App R 173

WHO IS THE REASONABLEWHO IS THE REASONABLE

PERSON? PERSON?

 R V HEGARTYR V HEGARTY

 R V EMERY (1993) 14CR APP R (5)R V EMERY (1993) 14CR APP R (5)

 R V BOWEN (1996) 2 CR APP R 157R V BOWEN (1996) 2 CR APP R 157

INTOXICATION & DURESSINTOXICATION & DURESS

 (^) AGE AND SEXAGE AND SEX  (^) R V HUDSON AND TAYLOR [1971]R V HUDSON AND TAYLOR [1971]  (^) OPPORTUNITY TO ESCAPEOPPORTUNITY TO ESCAPE  (^) R V GILL [1963]R V GILL [1963]  (^) POLICE PROTECTION?POLICE PROTECTION?  (^) EXCLUDED PERSONSEXCLUDED PERSONS  (^) CRIMINAL ORGANISATIONSCRIMINAL ORGANISATIONS  (^) R V SHARPE [1987]R V SHARPE [1987]  (^) BUTBUT  (^) R V SHEPHERD[1987]R V SHEPHERD[1987]  (^) R V HASAN [2005] UKHL 22,[2005]R V HASAN [2005] UKHL 22,[2005]  (^) R v Ali [2008] EWCA Crim 716R v Ali [2008] EWCA Crim 716

LIMITS TO THE DEFENCELIMITS TO THE DEFENCE

 (^) MURDERMURDER   (^) R V HOWE [1987]R V HOWE [1987] DPP V LYNCH [1975]DPP V LYNCH [1975]   (^) TREASONTREASON  RV STEANE [1947]WHY HAVE THIS RULE ?RV STEANE [1947]WHY HAVE THIS RULE?  (^) LEGISLATIONLEGISLATION   (^) SANCTITY OF HUMAN LIFESANCTITY OF HUMAN LIFE  TERRORISMTERRORISM  EXECUTIVE DISCRETIONCPSEXECUTIVE DISCRETIONCPS  (^) RELEASE ON LICENSERELEASE ON LICENSE   (^) ATTEMPTED MURDERATTEMPTED MURDER RV GOTTS [1991]RV GOTTS [1991]

DURESS SUMMARYDURESS SUMMARY

 (^) ISSUES TO CONSIDERISSUES TO CONSIDER

 (^) 1.NATURE OF THE THREAT1.NATURE OF THE THREAT  (^) MUST BE A THREAT OF DEATH OR GBH NOT DAMAGE TOMUST BE A THREAT OF DEATH OR GBH NOT DAMAGE TO

 PROPERTYPROPERTY 2.TEST FOR DURESS2.TEST FOR DURESS  (^) 2 STAGE TEST TO QUALIFY2 STAGE TEST TO QUALIFY  (^) SUBJECTIVESUBJECTIVE  (^) OBJECTIVE-CHARACTERISTICS OF AGE AND SEX W ILL BEOBJECTIVE-CHARACTERISTICS OF AGE AND SEX W ILL BE

 TAKEN INTO ACCOUNTTAKEN INTO ACCOUNT  3.OPPORTUNITY TO ESCAPE OR CONTACT THE POLICE3.OPPORTUNITY TO ESCAPE OR CONTACT THE POLICE THIS IS RELEVANT EVIDENCE BUT NOT CONCLUSIVE THATTHIS IS RELEVANT EVIDENCE BUT NOT CONCLUSIVE THAT THE DEFENCE WILL NOT BE AVAILABLE.THE DEFENCE WILL NOT BE AVAILABLE.