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Criminal: Defences II (Self-Defence, Infancy, Duress, Necessity) Self-Defence
- Overlapping sources: common law + statute (often not specif ied: same rules apply). common law: defend self or another ([Smith and Hogan]: 'private defence'). s3 Criminal Law Act 1967: prevention of crime. ([Smith and Hogan]: 'public defence'). s76 Criminal Justice and Immigration Act 2008 (CJIA): re-enacts common law principles.
- When can self-defence be used?
1. protection from physical attack (or threat of imminent attack) of self or another. inc. another: R v Gladstone Williams . NOT protection of peace of mind: R v Bullerton .
2. protection of property: R v Hussey .
- 2-part test for self-defence: R v Owino .
1. trigger: d. honestly believes use of force was necessary.
2. response: level of force used to repel attack was reasonable in circs. d. believed to exist.
- Burden on prosecution: once raised by d., must be disproved.
- All or nothing defence: R v Clegg .
if successful: complete defence against all crimes. no partial defence possible: slightest failing ? defence fails - e.g. if d. uses slightly excessive force.
1. Trigger: d. honestly believed the use of force was necessary (subjective test).
- Subjective test: d. judged on facts as he believed them, whether reasonable or not. even if mistaken: R v Gladstone Williams: d. attacked youth who was trying to stop a robbery, thinking robber being attacked ? CoA: self-defence
- reasonableness only material to whether d. honestly believed force was necessary. s76(3) + s76(4)(b)(i) CJIA: statutory footing. but NOT mistake induced by voluntary intoxication: R v O'Connor ; s76(5) CJIA.
- Anticipatory self-defence (pre-emptive strike): allowed if threat imminent. Devlin v Armstrong : [MacDermott LJ]: 'to ward off/prevent an attack he honestly anticipated ... must be imminent'. A-G's Ref (No.2 of 1983) : [Ld Lane CJ]: 'against imminent apprehended attack'. Beckford v R : [Ld Griffiths]: 'circs. may justify a pre-emptive strike'.
- No duty to retreat: d. can fight instead of run away - R v Bird : [Ld Diplock].
- Self-defence by antagonist/aggressor: allowed in some circs. R v Forrester : F. trespassing on W's property, W. rushed at him ? CoA: self defence valid if W. used excessive force in attempting to remove him. R v Rashford : CoA: dep. on circs - if person d. attacks not only defends self but goes on offensive.
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