A2 Law Defences power point

1. Self Defence, Defence of Another
& Prevention of Crime
14.03.2012
shummi.s@hotmail.co.uk

2. Lesson Objectives
All learners will be able to:
Define self defence, defence of another and
prevention of crime.
Describe 2 cases in regard to self defence.
Most learners will be able to:
Recall the section and Act in regard to self defence.
Describe 3 cases.
Some learners will be able to:
Identify A02 marks on this topic and discuss these.
Describe 4 cases.

3. Key Terms
How would you define the following
terms/phrases:
 Self defence
 Defence of another
 Prevention of crime

4. An overview
This covers not only actions needed to defend
oneself from attack (self defence), but also
actions taken to defend another. The defences of
self defence and defence of another are common
law defences which justify the defendant’s
actions. In addition there is a statutory defence of
prevention of crime under s.3(1) of the Criminal
Law Act 1967 which states that
‘a person may use such force as is reasonable in
the circumstances in the prevention of crime.’

5. Degree of force
The amount of force under these types of defences is
explained in the Criminal Justice and Immigration Act 2008:
(a) That a person acting for a legitimate purpose may not be
able to weigh to a nicety the exact measure of any
necessary action;
(b) That evidence of a person’s having only done what the
person honestly and instinctively thought was necessary
for a legitimate purpose constitutes strong evidence that
only reasonable action was taken by that person for that
purpose’.
Can you define what these sections mean in your own words?

6. Degree of Force
It means in layman's terms:
(a) Allows for the fact that a person who is facing an attack by
another is under stress and cannot be expected to
calculate the exact amount of force which needs to be
used in the circumstances.
(b) If there is evidence that the person ‘honestly and
instinctively’ thought the level of force he used to protect
himself or another or to prevent crimes was
reasonable, then this provides strong evidence that the
defensive action taken was reasonable in the
circumstances.
However if force is used after all danger from the assailant
(revenge) is over the defence is not available.

7. Mistaken use of force in self defence
In looking at the circumstances, the defendant
must be judged on the facts as he genuinely
believed them to be.

8. Williams [1987]
D was on a bus when he saw what he thought was a man
assaulting a youth. In fact it was a man trying to arrest the
youth for mugging an old lady. D got off the bus and asked
what was happening. The man said he was a police officer
arresting the youth, but when D asked him to show his
police ID card he could not do so. There was then a struggle
between D and the man in which the man was injured. D
was convicted of assault after the judge had directed them
that D only had a defence is his mistake was a reasonable
one.
The court of appeal quashed his conviction because the
jury should have been told that if they thought the mistake
was genuine they should judge the defendant according to
his genuine mistaken view of the facts, regardless of
whether this mistake was reasonable or unreasonable.

9. Mistaken use of force in self-defence
Section 76 of the Criminal Justice and
Immigration Act 2008 puts the decision in
Williams onto a statutory footing. This section
states:

10. S.76 Criminal Justice and Immigration
Act 2008
“ 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) ‘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 not 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.’ ”

11. S.76 Criminal Justice and Immigration
Act 2008
The important point is to establish the facts as
the defendant genuinely believed them to be.
If the defendant genuinely made a mistake
then he is to be judged on the facts as he
believed them to be. This is so, even if the
mistake was unreasonable (Williams)

12. Drunken Mistake
S. 76(5) of CJIA 2008 makes it clear that a defendant
cannot rely on any mistaken belief, if that mistake is
made due to the defendant being voluntarily
intoxicated.
An example would be where the defendant had taken
drugs which caused hallucinations causing him or her
to believe that they were being attacked by snakes. If
the defendant then assaults someone believing that
person to be a snake, then the defendant cannot use
the defence of self defence. He genuinely believes he is
being attacked by a snake, but this mistake has been
caused by the defendant’s voluntary intoxication.

13. Problems in the law of self-defence
Can you identify any problems which may arise?
(3 mins)

14. Problems in the law of self-defence
1. Is force necessary?
The first point to be decided if the defence is to
succeed is whether force is necessary. This is a
question for the jury. In many cases it is
straightforward, e.g. if the facts are that the victim
had a knife in his hand and came towards to
defendant saying ‘I am going to slash you to pieces’, it
is quite clear that force is necessary in self-defence in
this situation.
In other situations it is more difficult to decide.

15. Is force necessary?
What if, while walking home in the dark, D sees a large
man shaking a club above his head in a threatening
manner. D thinks it is necessary to defend himself and
punches the man hard, knocking him to the ground.
The man was in actual fact an old woman, and the
‘club’ was the woman trying to open an umbrella
above her head.
The jury has to decide whether D honestly believed he
was being threatened. If they decide that he did, then
he has the defence of self-defence. He can use force
even though there was no actual threat to him.

16. Is force necessary?
The jury has to decide whether D honestly believed he was
being threatened. If they decide that he did, then he has
the defence of self-defence. He can use force even though
there was no actual threat to him.
In this situation an innocent person has been hurt, but D’s
actions are not criminal. S.76 CJIA 2008 makes it clear that
provided that the mistake was not made due to
intoxication, then D can rely on his mistake. Provided the
jury decided that D did believe there was a large man
shaking his club at him, D has the defence of self defence.
This is so even if the mistake was not a reasonable one to
make.

17. Problems in the law of self-defence
2. Pre-emptive strike
Does a person have to wait until they are attacked before
they can use force?
The law appears to be clear that they can act to prevent
force. It is not necessary for an attack to have started. In
the previous example, no attack had started. D thought he
was about to be attacked and reacted to save himself from
being attacked.
This appears to be a sensible rule since it would be
ridiculous if a person had to wait until they were stabbed or
shot before being allowed to defend themselves. The
problem is that again people can be attacked if they were
perceived to be a threat, when really they were not.

18. A-G Reference (No.2 of 1983) (1984)
D’s shop had been attacked and damaged by
rioters. Fearing further attacks, he made petrol
bombs. D was charged with possessing an
explosive substance in such circumstances as to
give rise to a reasonable suspicion that he did not
have it for a lawful object. D pleaded self-defence
and the jury acquitted him. The A-G referred the
point of law o the Court of Appeal which decided
that it was correct, that D could make
preparations in self defence.

19. Problems in the law of self-defence
3. Excessive Force.
A major problem is where a defendant uses
excessive force in self defence. If this is so then he
cannot use self-defence as a defence. If he is
charged with any assault charge, the judge can
take any issues of self-defence into consideration
when passing sentence. However, where such a
defendant is charged with murder, he MUST be
given a life sentence.

20. Clegg (1996)
D was a soldier on duty at a checkpoint in Northern Ireland.
A car came towards the checkpoint at speed and with its
headlights full on. One of the soldiers shouted for it to stop
but it did not. Clegg fired three shots at the windscreen of
the car and one as it passed him. This final shot hit a
passenger in the back and killed her. The evidence showed
that the car had gone past Clegg by the time this last shot
was fired. So it was held that he could not use self-defence
because there was no danger when he fired that shot.
The force was excessive in the circumstances and his
conviction for murder was upheld.

21. Martin (Anthony) 2002
D shot two burglars who has broken into his farmhouse, one of
whom died. The evidence was that the burglars were leaving when
D shot them, and the burglar who died had been shot in the back. D
was found guilty of murder. He appealed on the basis that the
defence of self defence should have been allowed as he was
suffering from paranoid personality disorder which meant that he
may have genuinely (but mistakenly) thought he was in an
extremely dangerous situation.
The court of appeal rejected this on the basis that the personality
disorders could not be taken into account when considering the
defence of self defence. However, the conviction was reduced to
manslaughter on the grounds that D was suffering from diminished
responsibility.

22. Problems in the law of self-defence
The Government Consultation
paper, Murder, manslaughter and infanticide:
proposals for reform of the law has a proposal for
a partial defence of ‘killing in response to fear of
serious violence’. This would be available to
someone who overreacts to what they perceive
as an imminent threat and would reduce the
charge to manslaughter. If this proposal becomes
law, then defendants in cases such as Clegg and
Martin, would be able to use this partial defence.

23. Problems in the law of self-defence
4. Relevant of D’s characteristic
Another point is whether D’s characteristics can be taken
into account in deciding if D thought that he needed to
defend himself.
In Martin (Anthony) (2002) the CA held that psychiatric
evidence that D had a condition entailing that he perceived
much greater danger than the average person was NOT
relevant to the question of whether D had used reasonable
force. One of the reasons for this decision was that self-
defence is usually raised in cases of minor assault and it
would be ‘wholly disproportionate to encourage medical
disputes in cases of that sort’.

24. Problems in the law of self-defence
Cairns (2005) the CA followed the decision in
Martin (2002) and held that when deciding
whether D had used reasonable force in self
defence, it was not appropriate to take into
account whether D was suffering from
psychiatric condition (such as paranoid
schizophrenia) which may have caused him to
have delusions that he was about to be
attacked.

25. Problems in the law of self-defence
It is difficult to know whether these decisions are effective
following the passing of the CJIA 2008. Section 76 makes it clear
that the question of 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. The section continues
that if the jury (or magistrates) decide that D did genuinely believe
in the existence of the particular circumstances, then D is entitled
to rely of self defence.
If D’s psychiatric condition makes him genuinely believe that force is
necessary and the courts accept that he believed this, then
surely, under the wording of the Act, D must be able to claim self
defence.
However, it is doubtful that this is the interpretation the courts will
use. It would have been helpful if the Act had made it clear whether
a psychiatric condition which caused D to believe in the existence of
circumstances was to be taken into account or not.

26. Recap Test – 10 minutes.
1. What is the name of the Act which decided
whether an act of self defence is reasonable
or unreasonable?
2. What is the main section of this Act?
3. Name the 5 cases under this topic.
4. Describe these cases.
5. What are the 3 main problems of law in self-
defence.