Self defence

Its link with other types of Affirmative

defences :

In affirmative defences , one common factor between all is that they are mostly
utilized when one party is seeking to avoid a loss upon them .

However all of them operate distinctively to the other. Duress for example does
not legally aid D in charges of murder. However the self defence provides a proper
justification for it , and can lead to a clean acquittal .

Public and private defence including self defence :

There is an approval issued by the criminal law to utilize reasonable force in the
name of public and private defence. s. 3 of criminal Law Act 1967 delivers the
simple illustration of applying public and private defence.

s.3(1 ) holds :
``` 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.```
Private defence is a category of public defence. To use a force for safety D must
have acted in a manner of defence and not retaliation. The last condition to
successfully apply public defence is that , D must have only used such amount of
force to retaliate against a justified risk. The application of such force should not
be used to oppose unlegitimate risks. This means D cannot use this defence in his
favour to retaliate against a force used to legally arrest him.

R v Wilkinson , D was a taxi driver. One time he picked up a customer and when he
found out that she had no money to pay him , he went to several places except
the allocated destination of C . Eventually he dropped her , at the location from
where she was initially picked up. C claimed False imprisonment against her by D.
D argued that he resisted in order to the execution of crime. Court had favoured
C. They pointed out that , not paying a taxi fare is not be a crime . Even if it was
hypoteticallly approved that doing such so was an offence , then how could taking
C back to the departure location of her ride was an attempt to stop that crime.

His action were not construed to safeguard himself / property but were seen
more of an offensive measure. Certainly Ds had failed and he was liable for the
charge .

Demario Williams , COA dismissed the case and the self defence justication of a
young boy , who had decimated the victim , in order retrieve the stolen property
from him. COA justified that the s.3 of Criminal Law Act 1967 , was utilized to
avoid the execution of crime. However it shall never be permitted as an excuse to
use force , once the crime has been completed. Conducting his force after the
commission of robbery was interpreted as a retaliative and not to safeguard his
property.

A use of self defence is not permissible against the blameless. Law cannot permit
use of force against those are guiltless and who have association to the offence to
committed.
Criminal Justice and Immigration Act 2008 as a legislation has revolutionized the
criminal law. It offers greater transparency and stability than former statues on
this subject matter. Indeed it covers a greater prospect. It mostly repeats the
earlier law on it , but his time for D to use this force must prove that it was lawful
and was certainly essential in the given circumstance. This now concerns the
mental element too. Had D believed it sincerly that such use of force is
essential ?

Criminal Justice and Immigration Act 2008 which was later reformed by Crime
and Court Acts 2013 cover the all the relevent aspects of public / private
defence :

```(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, and subsections (4) to (8) also apply in connection with deciding that
question.

(4)If D claims to have held a particular belief as regards the existence of any
circumstances—

(a)the reasonableness or otherwise of that belief is relevant to the question

whether D genuinely held it; but

(b)if it is determined that D did genuinely hold it, D is entitled to rely on it for the
purposes of subsection (3), whether or not—

(i)it was mistaken, or

(ii)(if it was mistaken) the mistake was a reasonable one to have made.

(5)But subsection (4)(b) does not enable D to rely on any mistaken belief
attributable to intoxication that was voluntarily induced.```
Beckford v The Queen , Here D was a police officer who had arrived to a house
after a telephone from Heather Barnes that her brother Chester Barnes was
menacing their mother with a gun. Police were full loaded with heavy arsenal.
The twist is that Heather Barnes argued that she had made no such report .
Suddenly at the time of their arrival a suspected indiviual with weapons had
attempted to escape from the back door. Police had follwed him , while according
to D Chester took out his gun and fired at him. He responded and killed him.
There was no gun found from the V. At trial court , the trial judge illustrated a
guidance to jury ,

``` A man who is attacked in circumstances where he reasonably believes his life to
be in danger or that is in danger of serious bodily injury may use such force as on
reasonable grounds he thinks necessary in order to resist the attack and if in using
such force he kills his assailant he is not guilty of any crime even if the killing is
intentional.```

Jury stated he was liable. He went to COA , where his liability over murder was
removed . Indeed D had used the force lawfully , and had sincerly believed that
at the time it was essential to use the gun.

This case perfectly expresses the new additions made to this defence. The most
prominent aspect that is present now and not before is ``` be decided by reference
to the circumstances as D believed them to be . ``` There are two exceptions to
this aspect of this defence. It is when the court shall not ask from D , what he had
thought in those circumstances.

The first one is when D is not mentally stable .

R v Oye : D brutually beat down police officers at a coffee shop , and his
defence was that there were devilish souls attacking and he responded in self
defence. His defence of self defence was not accepted , as his disease of mind
made him show things which were not real and he could not rely upon them as
MNagten could rely on his hellucinations to kill the PM , if this case had occured
today.
The second is issued in s . 76 (5) . It occurs when D is voluntary intoxicated .

Lipman : D had taken LSD. This caused him to interpret his girlfriend as a
snake and he bagan to fill pillow sheets in her mouth . In the morning when he
was found , with his dead girlfriend who died of suffocation . Chrge was of
manslaughter . The intoxication can only vitiate mens rea only. As this was a
charge of manslaughter which is a strict liavlity offence and Ds intoxication had no
effect on the conviction.

Widgery LJ said:

“For the purposes of criminal

responsibility we see no reason to
distinguish between the effect of drugs
voluntarily taken and drunkenness
voluntarily induced.”
In each situation , the word of the D is not to be relied by the courts . Reason
being is lack of stable concious at that moment of the D.

Meaning of Reasonable Force :

s.76 (6 ) of CJIA refuses the use the common law proposition which shall take
effect of making an unreasonable force as reasonable. s.76(6) now reforms to
issue greater leniency in liability to those who have used this force against
someone who was in their house . A force which is not balanced according to the
need could still be seen as reasonable. However it the use of force was grossly out
of balance then it would certainly unreasonable .

Common law provides that the force being of out of balance is determined
according to the character of risk upon D.

Ag reference ( NO 2 of 1983 ) ,

D had a shop and he was its shopkeeper . The shop was in the middle of a serious
scuffle . That chaotic mess had caused D on 11th/12th July 1981, a loss of £600 by
destruction of goods , while £ 400 worth goods were robbed . On 14 July , to save
himself from being battered during the scuffle he placed 10 petrol bombs in the
shop. He was charged under section 4 of the Explosive Substances Act 1883. Here
D justified his stance of doing so for self defence. COA agreed that self defence
could be opted in a composing mode to respond an attack on him .

```The defendant in this case said that his intentions were to use the petrol bombs
purely to protect his premises should any rioters come to his shop. It was
accordingly open to the jury to find that the defendant had made them for the
reasonable protection of himself and his property against this danger. The fact
that in manufacturing and storing the petrol bombs the defendant committed
offences under the Act of 1875 did not necessarily involve that when he made
them his object in doing so was not lawful. The means by which he sought to fulfil
that object were unlawful, but the fact that he could never without committing
offences reach the point where he used them in self-defence did not render his
object in making them for that purpose unlawful. The object or purpose or end for
which the petrol bombs were made was not itself rendered unlawful by the fact
that it could not be fulfilled except by unlawful means. The fact that the
commission of other offences was unavoidable did not result in any of them
becoming one of the defendant's objects.

In our judgment a defendant is not left in the paradoxical position of being able to
justify acts carried out in self-defence but not acts immediately preparatory to it.
There is no warrant for the submission on behalf of the Attorney General that acts
of self-defence will only avail a defendant when they have been done
spontaneously. There is no question of a person in danger of attack "writing his
own immunity" for violent future acts of his. He is not confined for his remedy to
calling in the police or boarding up his premises.

He may still arm himself for his own protection, if the exigency arises, although in
so doing he may commit other offences. That he may be guilty of other offences
will avoid the risk of anarchy contemplated by the Reference. It is also to be noted
that although a person may "make" a petrol bomb with a lawful object,
nevertheless, if he remains in possession of it after the threat has passed which
made his object lawful, it may cease to be so. It will only be very rarely that
circumstances will exist where the manufacture or possession of petrol bombs can
be for a lawful object.```
Use of Force should be compulsory :

Force used to defend himself / his property could only be construed as reasonable
if it was done so when there was no other method left. The application of force in
self defence should and could be only used when D sincerly believes it is
compulsory to do so.

No duty of retreat :

Field , D had already been informed that V shall be executing an attack upon him .
When V attacked , D had the chance to escape but chose to instead
counterattack him. Prosecution debated that here D could have left the situation
safely and instead he had choosen to forfit another applicable method to ensure
his safety . For this D should be barred from utilizing defence of self defence.
Court held otherwise and believed that C was there was no exemption for using
this defence . Certainly D was qualified for using this defence, even if he had the
chance to escape and he did not do so .

Provoking an attack :

D can still use this defence , if he had sowed the seeds of that brawl in the first
place. Rashford , D went on to brutalize V. V on the other hand had called on his
friends and had actively taken part in the brawl. D then in that heat of the
moment , decimated V. COA held that this defence was applicable for D , until he
could elaborate that the use of his force was reasonable , compared to Vs
offensive response .

Pre emptive strike :

Theres no issue if D is composed and ready for a response to an attack he could

apprehend. Ag reference ( no 2 ) . As Lord Beckford had pointed out in Beckford
that ,

``` A man about to be attack does not have to wait for his assailant to strike the
first blow or fire the fire shot ; circumstances may justify a preemptive strike .```

Reasonable Force decided Objectively :

The test of reasonable force in self defence is not subjective but rather objective.
There is a set standard that the courts shall view , whether the attack of D was
met as a reasonable force or not ? Here Courts do take notice of the
circumstantial factors such as fear and jurys are also expected to give their
decision keeping in mind that sensible do indeed make errors.

Owino ,

‘A jury must decide whether a defendant honestly believed that the

circumstances were such as required him 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 circumstances.’

Beldam LJ

Palmer, D and two more indiviuals were trailed after they had robbed ganja from
them. They had fired a gunshot to kill one of the chasers. D was charged and
convicted of murder. D went to COA , where his appeal was rejected . Court clearly
held that this defence will never apply if the force is grossly out of balance. The
use of gun to kill a chaser , is never a unreasonable use of force. Certainly the
attempts to shift the conviction to manslaughter went into vain.

Lord Morris:
"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."

It is clear that the need of sincere belief can certainly not make an unreasonable
use of force as reasonable.

In case of Clegg , the D was a armed officer patrolling at a check point where a car
of joyriders did not listen Ds order to stop and the D fired three bullets on the car
but fired the fourth after they had passed when the risk of harm had passed , due
to which one passenger died . The D was unable to use the defence of self defense
as the force was disproportionate . On appeal the court held , ``` But this court
considers, and we believe that many other fair-minded citizens would share this
view, that the law would be much fairer if it had been open to the trial judge to
have convicted Private Clegg of the lesser crime of manslaughter on the ground
that he did not kill Karen Reilly from an evil motive but because, his duties as a
soldier having placed him on the Glen Road armed with a high velocity rifle, he
reacted wrongly to a situation which suddenly confronted him in the course of his
duties. ``` However HOL dismissed the appeal as changing it from murder to
manslaughter on these basis is upto parliament.

In case of Martin Anthony , where defendant shot two robbers in his house , one
died and the other was badly wounded . He applied for self defence but failed
because of the fact that the Ds use of force was grossly disproportional . The D
was later found to have a disproportional paranoid disorder , leading him to do
this . His conviction was quashed and converted to voluntary manslaughter based
on diminished responsibility.

Yaman , here D had hit a locksmith with a hammer , assuming that he was stealing
something from his shop. Court argued that , ``` done what he honestly and
instinctively thought was neccessary ` , however this thought could have never
made this grossly out of balance use of force balanced. Indeed D was not
permitted to use this defence.

In the cases of Yaman and Martin , it was evidently witnessed that Ds response is
much more agressive in home , if compared with instances at other places.
2013 , the Government had made an effort to certify that the general perception
of the depth of this defence was enhanced . s.43 of Crime and Courts 2013 joins
a new s.5A to s.76 of CJIA 2008 . This basically covers the reasonability of forces by
D is used at home. This aspect proves to give a greater edge to D , if the force was
utilized in the premises of his home.

s.5A to s.76 of CJIA 2008 :

``` in a householder case, 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.```

The effect of this clause is to offer a greater room for leniency , (in the liability of
D) . If D (in his house) has acted out of self defence against the victim , and the
force applied was somehow out of balance then that that still does not prevent
him from escaping liability.
R(Collins ) v Secetary of state for justice :

C had invaded the house of D , to execute a burglary. D got hold of C and captured
him a lethal headlock. The headlock continued till the police came to arrest him.
The headlock was so lethal that it caused fatal injuries to C.

Courts concern was whether the force used by D were sufficient to set him liable
for the offences. Ds defence was that he acted in self defence. Court held they
could set him liable if the jury sees the force used as severly out of balance .
However it is upto the discretion of court to accept his defence as valid , even the
force used was out of balance. This means an out of balance force could also be
construed as reasonable.

CPS favoured the D . The basis for their decision was the appliance of s.76(5A)
here . Certainly CPS held that the force applied by D was although out of balance ,
but adequate and reasonable . Moreover the Cs appeal of seeing this statue as
inconsistent with Art 2 of ECHR was also dismissed. Court held that it was indeed
consistent with it.

R v Ray ,
In this case the legal rational laid down in R(Collins ) v Secetary of state for justice
was approved and followed. Here it was held that the Jury shall take some factors
in account ,in deciding the standard of balance of the force used. The court held
that the manner invader entering and the time which he enters shall have a
significant impact on the jurys interpretation.

s.76 (8B) issues the legal meaning of a householder :

```Where—

(a)a part of a building is a dwelling where D dwells,

(b)another part of the building is a place of work for D or another person who
dwells in the first part, and

(c)that other part is internally accessible from the first part,that other part, and
any internal means of access between the two parts, are each treated for the
purposes of subsection (8A) as a part of a building that is a dwelling.```

Scope of private defence :

It has been long argued that this defence is contrary to Art 2 of ECHR. It is this
defence which challenges the right to life. An indiviual is now permitted to kill if
and when absoloutely necessary. This debate had also faded away after the
conclusion in R(Collins ) v Secetary of state for justice . It was held here that
appeal of observing this statue ( s.76(5A)) as inconsistent with Art 2 of ECHR was
also dismissed.

Moreover if the self defence is utilized (either within the domain of private or
public )then it shall always acquire a use of force . If the offence is for e.g fraud
etc , which do not require force , then this defence shall not applicable. The
preferable defences are necessity / duress.

R v Riddle , D and V had a heated argument. After which V sat on the Ds car
bonnet. D began to drive viciously. D was charged with dangerous driving. Ds self
defence was refused in trial court , because there was no use of force here. He
was advised to shift his defence to duress. Since that was not the option to D , he
reapplied for self defence in COA. COA agreed his appeal. His defence was
approved in the COA, on the basis that there was a use of force by D. Court also
informed D that if V had been standing and he had scurried off to escape , then
this defence would have not been available .