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Self-defence is sometimes known as private defence or lawful defence. The defence of self-defence is the use of force to defend yourself or another, and excuses what might otherwise amount to criminal action. Self defence is a general defence to a criminal charge, it developed under the common law and has long been recognised under our criminal law. At common law a person has a defence if he or she is defending himself or another from attack. The cases cited show that the defence is common in assaults against the person, including murder. In the case of murder the defence will be very difficult to sustain.
The extent of the defence in terms of what is a reasonable amount of force has been the subject of consideration by the courts on many occasions. One such case is R v Palmer (1971) - the appellant and two others were chased by three men after they stole some ganja. The three men had sticks and stones. The appellant fired shots during the chase and one of the men chasing them died as a result of a gun shot wound.
The appellant's case was that he had not fired the shot which caused the man to die although the trial judge directed the jury on self-defence. Palmer was convicted of murder. He appealed on the basis that the judge, in directing the jury on self-defence, should have put an alternative verdict of manslaughter to the jury. The appeal failed and Lord Morris dealt with the question of the response to the attack as follows:
"If there has been an attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a Jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken."
This approach was followed and developed in R v Whyte (1987) which involved the use of a knife in self-defence. Lane LCJ confirmed Palmer stating “in most cases the jury should be reminded that defendant's state of mind, that is his view of the danger threatening him at the time of the incident, is material. The test of reasonableness is not… a purely objective test.”
As one might expect the defence embraces attacks against the person. The defence is now also statutory in nature and encompasses protection of property and preventing crime as well as in effecting or assisting in the lawful arrest of an offender or suspected offender under s.3 of the Criminal Law Act 1967. This became known as the public defence.
Criminal law is a popular subject for politicians and this is particularly so with self-defence. It could be that politicians feel their interest makes them seem tough on law and order. Despite promises to strengthen the position of a home-owner who uses excessive force against an intruder, Parliament, without changing the law, consolidated the two defences into s.76 of the Criminal Justice and Immigration Act 2008. Some will say that the Act became a 'clarification' exercise and will be discussed later.
This was further amended by s.148 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which simply added already existing common law principles to the statutory defence. Finally, Parliament sought to fulfil its promise to support home-owners fending off burglars by s.43 of the Crime and Courts Act 2013.
Section 43 amended section 76 of the Criminal Justice and Immigration Act 2008. The effect of this is that the use of disproportionate force can be regarded as reasonable in such circumstances as the accused believed them to be, when householders are acting to protect themselves or others from trespassers in their homes. The use of grossly disproportionate force would not be regarded as reasonable and it does not give householders the freedom to use disproportionate force in every case when they are confronted by an intruder.
In addition, force used by way of defence only applies when used internally at the building. This last point arose in the case of R v Hussain and others (2010) when a family returned to their home after attending their mosque and gave chase to burglars and then attacked them. On appeal it was made clear that the force used was not in self-defence of themselves or family members and it took place away from the family home when the burglars were making a getaway. The law on self-defence therefore seems capable of differentiating between instances when force used in self-defence is seen as reasonable but does not tolerate vigilante or revenge attacks by virtue of the clarifications made by Parliament.
The need for protection of property belonging to the defendant or another can constitute a lawful excuse for the purposes of a charge of criminal damage (section 5 (2) Criminal Damage Act 1971). This is as long as the need for protection was immediate and the means of protection would be reasonable in all the circumstances. The defence can extend to rights or interests in need of protection.
The provisions also extend to people who live and work in the same premises and armed forces personnel who may live and work in buildings such as barracks. The provisions do not extend to other situations when individuals are defending themselves from street crimes, preventing crime or protecting property. The use of reasonable force will continue to apply in these other situations but it is apparent straight away that there is an imbalance between the level of force that may be used in 'household' cases and what is acceptable in other situations.
General defences are said to be a complete defence to a criminal offence. If the defence is successful then the defendant will be acquitted and found not guilty of the offence. Should the defence fail, for example the jury may fail to agree on the defendant's version of events, then the defendant will be found guilty of the charge. For this reason it is not a partial defence and could be said to be an 'all or nothing defence'.
Some defences are referred to as 'special defences' meaning that, whilst they are by nature a defence to criminal behaviour, they do not operate to totally absolve the defendant from responsibility. Special defences can only apply to a specific charge such as murder. One such special defence is the defence of loss of control which replaced the defence of provocation which was abolished by Section 56 (1) of the Coroners and Justice Act 2009.
Self-defence can be contrasted with some other defences such as intoxication, duress, necessity and consent which are only available for some offences. Intoxication is not available for all crimes and in particular cannot be pleaded in response to a basic intent crime. A basic intent crime is one where no specific intent is required for the offence to arise. In the case of basic intent crimes a lesser form of mens rea may be sufficient such as recklessness in the case of common assault. A specific intent crime generally requires a high level of mens rea such as the intention to kill or cause serious harm in the case of murder.
Duress is another defence which has limitations imposed by the courts. Duress is not available to use as a defence to murder, attempted murder and possibly treason. Necessity is very problematic and is strictly limited, so much so that there are very few examples of it successfully being pleaded as a defence. Finally, consent is not available for murder or for serious assaults.
There are some limitations to the defence of self defence which need to be understood. The defence covers certain actions only. These are actions to defend yourself from violence or aggression and actions to defend another or to prevent a crime (Section 3 Criminal Law Act 1967).
The defence can be a defence to any crime, even murder and the reason for this is that the defendant is able to justify the use of force in the circumstances.
There are limits to what is acceptable in terms of the level of force used by the defendant. With regard to the question of force, it is well established that the level of force used must be reasonable in the circumstances, excessive force must not have been used otherwise the defence will fail.
The case of R v Clegg (1995) is a case which illustrates this point. Clegg was a serving soldier on a tour of duty in Northern Ireland. He was on border control duty, at night, with colleagues, when a car approached them. There were a number of occupants in the car. The car failed to stop at the checkpoint and, because of the danger of terrorist attack, Clegg opened fire and continued to fire at the car well after it had passed through the checkpoint. The occupants of the car were youths and all were killed. The defendant, Clegg, was charged with murder and pleaded self-defence.
The court was not satisfied over the point of the reasonableness of Clegg's actions. Forensic evidence appeared to show that bullets fired by Clegg had hit the side and rear of the vehicle. This demonstrated that the car was actually speeding away from the defendant as the shots were fired. This provided a strong argument that the force used was excessive and could hardly be seen as necessary to defend himself or his colleagues.
The law accepts that we are all different and we may not all respond in the same way. What matters is that it is the defendant who is there and is confronted with a situation not of their making. The courts accept that it is only right that the defendant is judged on the facts as he or she believed them to be (R v Williams (1984)).
In R v McKoy (2002) it was held on appeal that the defendant had been entitled to use reasonable force to defend himself from any unlawful arrest and detention. The defendant was not being arrested but the point was that he thought he was being unlawfully arrested by a police officer.
The defendant is allowed some discretion and does not have to prove that their belief was reasonable. There is a relationship between the amount of force used against the defendant and the force they used in response. The force used to retaliate must be proportionate, if someone is using their hands or fists to attack you then it may well be considered unreasonable for the defendant to produce a weapon of some kind to defend himself.
The defendant is to be judged objectively on the facts of the situation as the defendant believed them to be Owino (1996). In Owino the defendant attacked his wife severely but claimed that he honestly believed that he needed to defend himself. The Court of Appeal held that it is for the jury to decide whether a defendant honestly believed that the circumstances were such that he needed to use force to defend himself from an attack or threatened attack. The jury has then to decide whether the force used was reasonable in the circumstance and, in this regard, the question is whether a reasonable person would say that the level of force was reasonable.
This objective aspect of the defence was examined in the rather unlikely case of DPP v Armstrong-Braun (1999). A local councillor was charged with assault after trying to prevent a digger driver from working on a development site as there was a requirement to move great crested newts before commencement. He appealed his conviction for assault, saying he had acted lawfully in attempting to prevent a crime. It was held that the objective question of whether reasonable force was used should be considered in light of the circumstances that the defendant found himself in, including his subjective belief at the time.
In R v Martin (2002) the defendant farmer's plea of self-defence was rejected by the jury when they found that the defendant had fired his shot gun indiscriminately. See also Section 76 (3) which sought to clarify this aspect of the defence.
What matters is that the defendant only did what he or she honestly believed was right at the time. The law accepts that these reactions may have been an instinctive action based upon what the defendant believed to be happening. The law accepts that the defendant is unlikely to be in a position to check all the facts, such as the number of assailants or if they intend to carry out their threats, before he responds. (R v Oatridge (1992)).
Returning to Section 76 of the Criminal Justice and Immigration Act 2008 Section 76 (4) makes it clear that the defendant can still rely on the defence even if he or she was mistaken about the circumstances. In this regard the 2008 Act appears to put into statutory effect what had been thought to be the position prior to the Act. In DPP v Morgan (1976) three defendants had been convicted of rape after a violent attack. On appeal it was held that there was no requirement for any belief to be reasonably held.
The issue of mistake about the need for force also arose in R v Gladstone Williams (1984). In this case the defendant hurried to assist someone whom he thought to be a victim of an assault . In fact the man he attacked had just knocked a mugger to the ground in an attempt to restrain him. The defendant's conviction for assault was overturned on appeal as there had been a misdirection to the jury to the effect that the mistake had to be reasonably made.
The use of force must be necessary, in other words it must be reasonable for the defendant to use force rather than take some other action such as retreat. In R v Beckford (1988) Lord Griffith stated "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."
The reasonableness of the defendant's actions will still need to be considered. In Att-Gen reference (No 2) (1984) the defendant had prepared several petrol bombs to prevent his shop from being damaged and looted during the Toxteth riots. The Court of Appeal held that the matter should have been left to the jury as there might have been circumstances when the jury found such preparations reasonable.
When considering whether the use of force is necessary it is important to remember that there is no 'duty to retreat' on the part of the defendant. In R v Bird (1985) the defendant was slapped and pushed by the victim then lashed out in self-defence with her hand not realising that she still held a glass in her hand. The defendant was convicted but on appeal it was held that it was not necessary to show an unwillingness to fight in order for self-defence to be pleaded successfully.
The courts accept that there could be times when the person who is attacked may form an intention to attack or retaliate and this may not be the same as acting in the heat of the moment to defend oneself. In such cases the defence is not likely to succeed. If force is used after the threat or use of force has passed, the defence of self-defence ceases to be available. In Att- Gen reference as mentioned above the defendant claimed that the petrol bombs were made in readiness in case they were needed. The allowance of a pre-emptive strike whilst reasonable in itself may lead to problems of where to draw the line, either in terms of the resources used or over issues of imminence. Clear acts of revenge or retaliation will defeat the defence of self-defence.
Intoxication can have an effect on the operation of the defence of self-defence. The defendant cannot plead the defence if it is based on a drunken belief that he or she is being attacked (R v O'Grady (1987) (R v Hatton (2005);). In R v O'Grady the defendant claimed that he mistakenly thought that he was under attack when he was drunk. He appealed against his conviction for manslaughter but the appeal was dismissed on the basis that a defendant could not, for the purposes of self-defence, rely upon a mistake of fact brought on by voluntary intoxication. This decision was followed in R v Hatton.
Section 55 (3) Coroners and Justice Act 2009 seeks to establish consistency between loss of control and self-defence by requiring a subjective test in respect of the fear of violence. This applies to cases where the defendant lost self-control because of a fear of serious violence from the victim. As in self-defence, this will be a subjective test. The defendant will need to show that they lost self-control because of a genuine fear of serious violence, regardless of whether or not the fear was reasonable.
The fear of serious violence needs to be in respect of violence against the defendant or against another identified person. If there is any chance of mounting a successful self-defence plea to a murder charge this may be preferred as it is a complete defence and, if successful, will lead to acquittal. A loss of control defence, whilst it can only be pleaded to a murder charge, only leads to the alternative charge of manslaughter.
It could be argued that self-defence may help women who are the subject of domestic violence. This is likely to mean that every case will need to be dealt with on its merits making it difficult to predict the outcome in such cases.
In conclusion it seems that it is possible to say that the law relating to self-defence meets the needs of the current legal system and that juries are capable of recognising what sensibly amounts to self-defence. In the Hussain case the former Lord Chief Justice Lord Judge acknowledged that there may not be a need for extensive directions to be given to the jury in such cases. At the time, the then Director of Public Prosecutions, Keir Starmer QC, said the CPS often used their discretion not to bring prosecutions against a householder who had used force, the thinking being that no jury would consider it unreasonable. Keir Starmer went on to add that such cases were, in any event, very rare but that the current test worked very well.
The law is assisted by historical and modern cases where the law of self-defence has evolved over a long period of time. These cases are based on real situations and contain a mixture of rulings where the defence has succeeded and failed. The law could be said to be well tried and tested and the better for it.
Parliament has intervened at times and whilst much is made of the belief that 'every Englishman's home is his castle', some of the legislation, for example Section 76 of the Criminal Justice and Immigration Act 2008 as well as Section 55 (3) Coroners and Justice Act 2009, has tried to bring about better consistency and an understanding of the law. However, as with many areas of the criminal law, there will no doubt continue to be cases which will challenge lawyers and juries as well as the judiciary, but the judicial system should be strong enough to deal with any need for further clarity and understanding.
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