Defences Short Notes

DEFENCES

Even if the prosecution prove the AR and MR of an offence, D may still be able to argue that he has a defence.

SELF-DEFENCE

Requirements of the defence are: (i) D was (or believed he was) facing an unjust threat from V; (ii) D used a level of force against the threat (or threat as he believed it to be) that was reasonable in the circumstances.

s.3 Criminal Law Act 1967

1. “A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.”

2. “Subsection (1) above shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.”

The defence was further clarified in the following statute. Although, NB, in Keane [2010] (see below) the CA made clear that the statute does not change the law, rather it sets out the existing position in statutory terms —it “does not exhaustively state the law of self-defence, but it does state the basic principles.”

s.76 Criminal Justice and Immigration Act 2008

s.76(2) — Statute applies to the defences of: (i) self-defence; (ii) defence of property; (iii) use of force in prevention of crime or making arrest.

s.76(3) —“The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be.

s.76(4) —Where D claims to have a particular belief about the circs., “the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it” but if it is determined that D genuinely held it, then D is entitled to rely on that belief whether or not: “(i) it was mistaken, or (ii) (if it was mistaken) the mistake was a reasonable one to have made.”

s.76(5) —s.4 does not mean that D can rely on a mistaken belief attributable to voluntary intoxication.

s.76(5A) —In ‘householder cases’ (a case where D uses force against a trespasser in a dwelling) the “degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in those circumstances.”

s.76(6) —in ‘non-householder cases’ “the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances.”

s.76(6A) —For the purposes of s.76(3) (reasonableness of force used by D), “a possibility that D could have retreated is to be considered … as a factor to be taken into account, rather than as giving rise to a duty to retreat.”

s.76(7) —For the purposes of s.76(3): the following considerations should be taken into account: (i) “a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; (ii) evidence of a person’s only having done what the person honestly / instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose” Although note that these considerations are not exhaustive.

s.76(8F) —a “’building’ includes a vehicle or vessel.” i.e. so applies to caravans / houseboats.

To what crimes is self-defence a defence? This was a topic of debate, but now it is clear that the defence can be relied upon in relation to any offence (not just crimes of violence)

• Morris [2013]: CA held a taxi-driver could rely on s.3 CLA when he engaged in dangerous driving in order to prevent a passenger running off without paying.

REQUIEMENTS OF THE DEFENCE

From Martin (Tony )[2001]

1. V must pose an unjustified threat

2. The use of force must be necessary

3. The degree of force must be reasonable

4. The D must be acting in order to defend himself or another or property.

1. V must pose an unjustified threat

V must pose a risk to D or someone else. However, this requirement has been cast into doubt in the following:

Hitchens [2011]

• Facts: D was charged with an assault on Kathleen Brown. He argued that he assaulted her in order to prevent her allowing a man into her flat, who D believed would assault him. The judge ruled D could not rely on self-defence where the assault was against an innocent person in order to prevent an attack against a third party.

• CA (Gross LJ): The defences are “capable of extending to the use of force against an innocent third party to prevent a crime being committed by someone else.” Gross notes that “this rule has a greater scope for operation where it was certain that a crime would be committed immediately if action was not taken.” Conversely, where there is a low-likelihood of a crime being committed / the crime would be committed sometime in the future, the rule will be hard to apply. However, in this case, there was little risk of a crime being committed and V was merely doing what she was entitled to do. If D had been afraid of a crime being committed, he had time to call the police.

• Gross notes that circs. in which version of the defence could apply will be rare, but gives examples: (i) “A police constable bundles a passerby out of the way to get at a man he believes about to shoot with a firearm or detonate an explosive device; (ii) Y seeks to give Z car keys with Z about to drive. X, believing Z to be unfit to drive through drink, knocks the keys out of Y's hands and retains them.”

Herring: the CA have got this wrong. In the two hypothetical cases, the correct defence would be duress. The case threatens to undermine the line the law draws between duress and self-defence. There is no doubt that the defence applies whether the threat is being posed to the D or to another person / property. [Note: another argument is that this lets in the defence of necessity to murder in through the back door —i.e. the only circumstances in which it would be reasonable for D to kill an innocent V would be where it was necessary.]

2. The use of force...

Buy the full version of these notes or essay plans and more in our Criminal Law Notes.