Necessity Defences
A defence is an explanation of the defendant’s actions. This explanation may try to legally
excuse or justify their conduct. This defence may seek to negate some (reducing their
conviction and/or sentence) or all elements of a crime (aiming to be acquitted).
Self-defence
Section 76(1) and (2) of the Criminal Justice and Immigration Act 2008
Self-defence can be used by a defendant to:
- Defend themselves
- Defence another
- Defend their own property
- Prevent a crime
1. Was it necessary to use force? (subjective test)
2. Was that force proportionate or reasonable in comparison to the harm that was
threatened? (objective test)
Was it necessary to use force?
- This is the subjective element of the test for self-defence.
R v Gladstone Williams (1987)
- Whether force was necessary is based on what the defendant genuinely believed
were the facts. It does not matter whether their belief was mistaken.
Section76(5) of the CJIA 2008
Intoxication
If the defendant made the mistake because they were voluntarily intoxicated, then they
cannot rely on their mistaken belief and therefore cannot use the defence of self-defence.
R v Deana (1909)
- Pre-emptive strikes are where the defendant attacks another person first. These are
allowed in criminal law, providing it is necessary.
R v Seon Oye (2013)
- If the defendant made a mistake because of a psychiatric condition, this condition
should not be considered when assessing whether the force is necessary. This is a
public policy reason to avoid justifications for extreme violence.
R v Bird (1986)
There is no duty to retreat, meaning the defendant does not have to try and avoid conflict.
This backs up R v Deana (1909) and provides a more recent example of pre-emptive strikes
being admissible.
R v Rashford (2005)
- Inciting violence typically prevents a defendant from using the defence. However, if
during an act of revenge, the victim’s reaction is disproportionate, it may be
necessary for the defendant to use self-defence.
, Necessity Defences
Prevention of a crime
Section 3(1) of the Criminal Law Act 1967
- If a defendant is preventing a crime then the same tests
Was that Force Proportionate or Reasonable in Comparison to the Harm that was
Threatened?
S.76(6) and (7) of the CJIA 2008
Force that is disproportionate will not be reasonable. This objective test needs to balance the
risk of harm to the defendant and the risk of harm to the victim. We can consider the
following:
- The defendant may not be in a situation where they can apply the same force as was
received.
- Force can still be proportionate if a weapon is used.
- Although force may initially be proportionate, this could become disproportionate.
- If the force used is disproportionate then the defence of self-defence cannot be used.
Standard self-defence
R v Clegg (1995)
- Force that is disproportionate will not be reasonable. This is especially so when the
danger has already passed.
Household cases
R (Denby Collins) v Secretary of State for Justice (2016)
- If a defendant is wanting to defend their property, then the second test for self-
defence is modified. The defendant must make sure that the force they use is not
grossly disproportionate.
Verdict
If the defendant successfully proves that their conduct was done in self-defence, then they
can be acquitted of all the chargges, meaning that no sentence is required.
A defence is an explanation of the defendant’s actions. This explanation may try to legally
excuse or justify their conduct. This defence may seek to negate some (reducing their
conviction and/or sentence) or all elements of a crime (aiming to be acquitted).
Self-defence
Section 76(1) and (2) of the Criminal Justice and Immigration Act 2008
Self-defence can be used by a defendant to:
- Defend themselves
- Defence another
- Defend their own property
- Prevent a crime
1. Was it necessary to use force? (subjective test)
2. Was that force proportionate or reasonable in comparison to the harm that was
threatened? (objective test)
Was it necessary to use force?
- This is the subjective element of the test for self-defence.
R v Gladstone Williams (1987)
- Whether force was necessary is based on what the defendant genuinely believed
were the facts. It does not matter whether their belief was mistaken.
Section76(5) of the CJIA 2008
Intoxication
If the defendant made the mistake because they were voluntarily intoxicated, then they
cannot rely on their mistaken belief and therefore cannot use the defence of self-defence.
R v Deana (1909)
- Pre-emptive strikes are where the defendant attacks another person first. These are
allowed in criminal law, providing it is necessary.
R v Seon Oye (2013)
- If the defendant made a mistake because of a psychiatric condition, this condition
should not be considered when assessing whether the force is necessary. This is a
public policy reason to avoid justifications for extreme violence.
R v Bird (1986)
There is no duty to retreat, meaning the defendant does not have to try and avoid conflict.
This backs up R v Deana (1909) and provides a more recent example of pre-emptive strikes
being admissible.
R v Rashford (2005)
- Inciting violence typically prevents a defendant from using the defence. However, if
during an act of revenge, the victim’s reaction is disproportionate, it may be
necessary for the defendant to use self-defence.
, Necessity Defences
Prevention of a crime
Section 3(1) of the Criminal Law Act 1967
- If a defendant is preventing a crime then the same tests
Was that Force Proportionate or Reasonable in Comparison to the Harm that was
Threatened?
S.76(6) and (7) of the CJIA 2008
Force that is disproportionate will not be reasonable. This objective test needs to balance the
risk of harm to the defendant and the risk of harm to the victim. We can consider the
following:
- The defendant may not be in a situation where they can apply the same force as was
received.
- Force can still be proportionate if a weapon is used.
- Although force may initially be proportionate, this could become disproportionate.
- If the force used is disproportionate then the defence of self-defence cannot be used.
Standard self-defence
R v Clegg (1995)
- Force that is disproportionate will not be reasonable. This is especially so when the
danger has already passed.
Household cases
R (Denby Collins) v Secretary of State for Justice (2016)
- If a defendant is wanting to defend their property, then the second test for self-
defence is modified. The defendant must make sure that the force they use is not
grossly disproportionate.
Verdict
If the defendant successfully proves that their conduct was done in self-defence, then they
can be acquitted of all the chargges, meaning that no sentence is required.
