14. Defences II: general
defences
14.1 Justification or excuse?
justificatory defence makes defendant’s conduct lawful
negates unlawfulness of actus reus
e.g. self-defence or defence of another, prevention of crime, necessity
defendant excused from liability where he is not held to blame for conduct
does not negate element of offence
e.g. duress, duress of circumstances
14.2 Self-defence and the prevention of crime
complete defence to use reasonable force against another in:
self-defence
defence of another
defence of property
prevention of crime
use of reasonable force in above circumstances is justified
negates unlawfulness of criminal offence charged
Oraki v CPS [2018] EWHC 115 (Admin)
self-defence or defence of another available in relation to obstructing
police constable in execution of duty
Wheeldon v CPS [2018] EWHC 249 (Admin)
‘no rule that self-defence is not available as a defence to a charge of
assaulting a police constable once it is found the constable was acting
in execution of duty’
14. Defences II: general defences 1
, legal and evidential burden
where defendant relies on self-defence, defence bears evidential
burden
elements of self-defence
Palmer v R [1971] AC 814
self-defence available to defendant who honestly believes it
necessary to use force
uses force proportionate to circumstances he believed them to be
subjective test
did defendant honestly believe use of force was necessary
objective test
did defendant use reasonable amount of force in circumstances
he believed them to be
Oatridge (1992) 94 Cr App R 367
in the case of self-defence, following questions must be asked:
1. was defendant under actual or threatened attack by victim
2. if yes, did defendant act to defend himself against attack
3. if yes, was response commensurate with degree of danger
created by attack
Section 76(3), Criminal Justice and Immigration Act 2008
the question whether the degree of forces used by defendant was
reasonable in the circumstances is to be decided by reference to
circumstances as defendant believed them to be, and subsections (4) to
(8) also apply in connection with deciding that question
14. Defences II: general defences 2
defences
14.1 Justification or excuse?
justificatory defence makes defendant’s conduct lawful
negates unlawfulness of actus reus
e.g. self-defence or defence of another, prevention of crime, necessity
defendant excused from liability where he is not held to blame for conduct
does not negate element of offence
e.g. duress, duress of circumstances
14.2 Self-defence and the prevention of crime
complete defence to use reasonable force against another in:
self-defence
defence of another
defence of property
prevention of crime
use of reasonable force in above circumstances is justified
negates unlawfulness of criminal offence charged
Oraki v CPS [2018] EWHC 115 (Admin)
self-defence or defence of another available in relation to obstructing
police constable in execution of duty
Wheeldon v CPS [2018] EWHC 249 (Admin)
‘no rule that self-defence is not available as a defence to a charge of
assaulting a police constable once it is found the constable was acting
in execution of duty’
14. Defences II: general defences 1
, legal and evidential burden
where defendant relies on self-defence, defence bears evidential
burden
elements of self-defence
Palmer v R [1971] AC 814
self-defence available to defendant who honestly believes it
necessary to use force
uses force proportionate to circumstances he believed them to be
subjective test
did defendant honestly believe use of force was necessary
objective test
did defendant use reasonable amount of force in circumstances
he believed them to be
Oatridge (1992) 94 Cr App R 367
in the case of self-defence, following questions must be asked:
1. was defendant under actual or threatened attack by victim
2. if yes, did defendant act to defend himself against attack
3. if yes, was response commensurate with degree of danger
created by attack
Section 76(3), Criminal Justice and Immigration Act 2008
the question whether the degree of forces used by defendant was
reasonable in the circumstances is to be decided by reference to
circumstances as defendant believed them to be, and subsections (4) to
(8) also apply in connection with deciding that question
14. Defences II: general defences 2
