Criminal seminar 7
Defences - Self Defence
Where are we?
Looking at GENERAL DEFENCES
Elif has covered Intoxication, Insanity and Automatism
Over next 2 lectures we will cover Self Defence, Duress and Necessity
Self defence is a ‘justification’ as opposed to an ‘excuse’
S76 Criminal Justice and immigration act 2008
What exactly is “self-defence”
Not just ‘self-defence’ but FOUR different things-
‘Self Defence’
Defence of another- S76(10)(b) CJI Act 2008 (Does not need to be a special
relationship)
Defence of property-S76(2)(aa) CJI Act 2008
Use of force in the prevention of crime- S3(1) Criminal Law Act 1967
Why does the law allow self-defence?
Justification-law permits conduct- negates part of AR of offence so that conduct becomes
lawful
‘It is both good law and good sense that a man who is attacked may defend himself. It is
both good law and good sense that he may do, but only do, what is reasonably necessary."
FOR EXAMPLE
AR of murder is unlawful killing- if D is acting within rules on self defence conduct becomes
lawful
AR of S20 OAPA 1861 is unlawful wounding- if D is acting in self defence wounding becomes
lawful
Law is allowing ‘self help’, balancing this against law and order
Context - Tony Martin - a perfect storm
1999 BLEAK HOUSE NORFOLK
MURDER OF FRED BARRAS (16) and S18 GBH WOUNDING TO BRENDAN FEARON
Tony Martin reporting his conversation with a burglar whilst in prison
‘I understand that you break into people’s houses. Why do you do it?’ He said ‘that’s how
things are’. He then turned his back. I said ‘BANG’. He said ‘what’s that?’ I said ‘that’s how
things are’.
‘ICON OR KIDDY KILLER’?
Richard Osbourne brooks
Where do we find the law
, Common Law- self-defence /defence of another/ defence of property
S 3 Criminal Law Act 1967 – prevention of crime
S76 Criminal Justice and Immigration Act 2008.
Aim is to ‘clarify the operation of the existing defences’ (s76(9))
Common law test
Common Law Test comes from R v Palmer [1971] AC 814
Did D honestly believe that use of force was necessary? (SUBJECTIVE)
Did D use a reasonable amount of force in the circumstances as he believed them to
be? (OBJECTIVE…but with subjective element)
So key words are NECESSARY AND REASONABLE
Smith Hogan and Ormerod call these the ‘Trigger and Response’
“necessary”? 6 important questions
1. Is the test for whether D honestly believed force to be necessary objective or
subjective?
D is judged according to facts as he believed them to be regardless of whether his belief
is reasonable or mistaken ( Williams (Gladstone) [1987] 3 All ER 411
In Oatridge (1992) Cr App R 367, Lord Musthill reformulated the test
Was D under actual or threatened attack by V (or did he honestly believe that he
was)?
If so did D act to defend himself against the attack?
2. What if D started the fight?
Keane [2010] EWCA Crim 2514 D convicted of GBH after night out. 3 people offered D
lift home- he began argument with 2 of them when third (V) was buying petrol- D
thought V was attacking him so punched him and he fell to ground knocking head. Had
the tables been turned?
3. What about pre-emptive strikes?
Beckford v R [1988] AC 130- a pre-emptive strike does not preclude D from relying on SD ‘…
a man about to be attacked does not have to wait for his assailant to strike the first blow or
fire the first shot: circumstances may justify a pre-emptive strike’ Lord Griffiths
Rashford [2005] EWCA Crim 3377 D went looking for V in order to get revenge but V
retaliated and responded with violence and D believed force was necessary .
4. Was the danger sufficiently imminent? What about preparation in the case of future
attack?
The threat must be imminent ‘the anticipated attack mus be imminent’ Devlin v Armstrong
[1971] NI 13
and acting in anticipation of a future threat will not amount to SD
Preparation for Self Defence in case of future attack?
Defences - Self Defence
Where are we?
Looking at GENERAL DEFENCES
Elif has covered Intoxication, Insanity and Automatism
Over next 2 lectures we will cover Self Defence, Duress and Necessity
Self defence is a ‘justification’ as opposed to an ‘excuse’
S76 Criminal Justice and immigration act 2008
What exactly is “self-defence”
Not just ‘self-defence’ but FOUR different things-
‘Self Defence’
Defence of another- S76(10)(b) CJI Act 2008 (Does not need to be a special
relationship)
Defence of property-S76(2)(aa) CJI Act 2008
Use of force in the prevention of crime- S3(1) Criminal Law Act 1967
Why does the law allow self-defence?
Justification-law permits conduct- negates part of AR of offence so that conduct becomes
lawful
‘It is both good law and good sense that a man who is attacked may defend himself. It is
both good law and good sense that he may do, but only do, what is reasonably necessary."
FOR EXAMPLE
AR of murder is unlawful killing- if D is acting within rules on self defence conduct becomes
lawful
AR of S20 OAPA 1861 is unlawful wounding- if D is acting in self defence wounding becomes
lawful
Law is allowing ‘self help’, balancing this against law and order
Context - Tony Martin - a perfect storm
1999 BLEAK HOUSE NORFOLK
MURDER OF FRED BARRAS (16) and S18 GBH WOUNDING TO BRENDAN FEARON
Tony Martin reporting his conversation with a burglar whilst in prison
‘I understand that you break into people’s houses. Why do you do it?’ He said ‘that’s how
things are’. He then turned his back. I said ‘BANG’. He said ‘what’s that?’ I said ‘that’s how
things are’.
‘ICON OR KIDDY KILLER’?
Richard Osbourne brooks
Where do we find the law
, Common Law- self-defence /defence of another/ defence of property
S 3 Criminal Law Act 1967 – prevention of crime
S76 Criminal Justice and Immigration Act 2008.
Aim is to ‘clarify the operation of the existing defences’ (s76(9))
Common law test
Common Law Test comes from R v Palmer [1971] AC 814
Did D honestly believe that use of force was necessary? (SUBJECTIVE)
Did D use a reasonable amount of force in the circumstances as he believed them to
be? (OBJECTIVE…but with subjective element)
So key words are NECESSARY AND REASONABLE
Smith Hogan and Ormerod call these the ‘Trigger and Response’
“necessary”? 6 important questions
1. Is the test for whether D honestly believed force to be necessary objective or
subjective?
D is judged according to facts as he believed them to be regardless of whether his belief
is reasonable or mistaken ( Williams (Gladstone) [1987] 3 All ER 411
In Oatridge (1992) Cr App R 367, Lord Musthill reformulated the test
Was D under actual or threatened attack by V (or did he honestly believe that he
was)?
If so did D act to defend himself against the attack?
2. What if D started the fight?
Keane [2010] EWCA Crim 2514 D convicted of GBH after night out. 3 people offered D
lift home- he began argument with 2 of them when third (V) was buying petrol- D
thought V was attacking him so punched him and he fell to ground knocking head. Had
the tables been turned?
3. What about pre-emptive strikes?
Beckford v R [1988] AC 130- a pre-emptive strike does not preclude D from relying on SD ‘…
a man about to be attacked does not have to wait for his assailant to strike the first blow or
fire the first shot: circumstances may justify a pre-emptive strike’ Lord Griffiths
Rashford [2005] EWCA Crim 3377 D went looking for V in order to get revenge but V
retaliated and responded with violence and D believed force was necessary .
4. Was the danger sufficiently imminent? What about preparation in the case of future
attack?
The threat must be imminent ‘the anticipated attack mus be imminent’ Devlin v Armstrong
[1971] NI 13
and acting in anticipation of a future threat will not amount to SD
Preparation for Self Defence in case of future attack?
