‘The defence of self-defence is not fit for purpose and needs to be reformed urgently. Discuss the
extent to which this statement is accurate (20 marks)
There are a number of arguments which may indicate that the defence of self-defence is not fit for
purpose and needs to be urgently reformed. However, many may disagree and state that the current
defence is suitable and effective, as well as there being evidence to support the fact that no or little
reform is necessary.
Self-defence is a complete defence and, if successful, the defendant will be found not guilty. This
defence is set out in both common law and statute. The common law defence of self-defence and
defence of property are amended by the Criminal Justice and Immigration Act 2008. The statutory
definition is in s 3(1) of the Criminal Law Act 1967 of self-defence in the prevention of crime or
effecting/assisting in a lawful arrest. The defence applies to all fatal and non-fatal offences and, if
accepted by the jury, is a complete defence.
The defendant will be judged according to the facts as he/she genuinely believed them to be
(subjective test). This was illustrated in R v Williiams. In s 76(3) the question whether the degree of
force used by the defendant was reasonable in the circumstances is to be decided by reference to
the circumstances as the defendant believed them to be. In section 76(4) it states: ‘if the defendant
claims to have held a particular belief as regards the existence of any circumstances- the
reasonableness or otherwise of that belief is relevant to the question whether the defendant
genuinely held it; but, if it is determined that the defendant did genuinely hold it, the defendant is
entitled to rely on it for purposes or subsection (3), whether or not it was mistaken, or, the mistake
was a reasonable one to have made’. This means that if the defendant genuinely made a mistake,
they should be judged on the facts as he/she believed them to be.
The defendant’s genuine beliefs can include delusions resulting from a psychiatric condition or other
conditions. This was considered in R v Oye.
The principle of whether a person has to wait until they are attacked before they can use force, is set
out in s 76(6A) of the Criminal Justice and Immigration Act 2008. This makes it clear that a person is
not under a duty to retreat when acting for a legitimate purpose.
Even if the defendant is the initial aggressor, they may use force if the victim’s response is
disproportionate and seriously threatens the defendant. But this will only be a defence if it was not
the defendant’s aim to give themselves an excuse to use much more serious violence. This was the
issue in R v Rashford.
The reasonableness of the force used is considered on the facts as they were, or, if the defendant
made a mistake, on the facts as the defendant genuinely believed them to be. The test is objective
as in R v Press and Thompson. It balances the risk of harm to the defendant with the risk of harm to
the victim but takes into account that: a person with legitimate purpose may not be able to work out
the exact measure of any necessary action, evidence of them only doing what they honestly thought
was necessary. The following may be taken into account: no simple reckoning of equality, initially
proportionate force may develop into disproportionate force, and the defence is lost entirely when
the force is excessive.
In householder cases, the defendant: can use reasonable force to protect themselves or others in
the home, can use disproportionate force if it is honestly thought to be required, and cannot use
grossly disproportionate force. To be a householder case: the force must be used by the defendant
extent to which this statement is accurate (20 marks)
There are a number of arguments which may indicate that the defence of self-defence is not fit for
purpose and needs to be urgently reformed. However, many may disagree and state that the current
defence is suitable and effective, as well as there being evidence to support the fact that no or little
reform is necessary.
Self-defence is a complete defence and, if successful, the defendant will be found not guilty. This
defence is set out in both common law and statute. The common law defence of self-defence and
defence of property are amended by the Criminal Justice and Immigration Act 2008. The statutory
definition is in s 3(1) of the Criminal Law Act 1967 of self-defence in the prevention of crime or
effecting/assisting in a lawful arrest. The defence applies to all fatal and non-fatal offences and, if
accepted by the jury, is a complete defence.
The defendant will be judged according to the facts as he/she genuinely believed them to be
(subjective test). This was illustrated in R v Williiams. In s 76(3) the question whether the degree of
force used by the defendant was reasonable in the circumstances is to be decided by reference to
the circumstances as the defendant believed them to be. In section 76(4) it states: ‘if the defendant
claims to have held a particular belief as regards the existence of any circumstances- the
reasonableness or otherwise of that belief is relevant to the question whether the defendant
genuinely held it; but, if it is determined that the defendant did genuinely hold it, the defendant is
entitled to rely on it for purposes or subsection (3), whether or not it was mistaken, or, the mistake
was a reasonable one to have made’. This means that if the defendant genuinely made a mistake,
they should be judged on the facts as he/she believed them to be.
The defendant’s genuine beliefs can include delusions resulting from a psychiatric condition or other
conditions. This was considered in R v Oye.
The principle of whether a person has to wait until they are attacked before they can use force, is set
out in s 76(6A) of the Criminal Justice and Immigration Act 2008. This makes it clear that a person is
not under a duty to retreat when acting for a legitimate purpose.
Even if the defendant is the initial aggressor, they may use force if the victim’s response is
disproportionate and seriously threatens the defendant. But this will only be a defence if it was not
the defendant’s aim to give themselves an excuse to use much more serious violence. This was the
issue in R v Rashford.
The reasonableness of the force used is considered on the facts as they were, or, if the defendant
made a mistake, on the facts as the defendant genuinely believed them to be. The test is objective
as in R v Press and Thompson. It balances the risk of harm to the defendant with the risk of harm to
the victim but takes into account that: a person with legitimate purpose may not be able to work out
the exact measure of any necessary action, evidence of them only doing what they honestly thought
was necessary. The following may be taken into account: no simple reckoning of equality, initially
proportionate force may develop into disproportionate force, and the defence is lost entirely when
the force is excessive.
In householder cases, the defendant: can use reasonable force to protect themselves or others in
the home, can use disproportionate force if it is honestly thought to be required, and cannot use
grossly disproportionate force. To be a householder case: the force must be used by the defendant
