"Criminal Law Self Defence"
Criminal Law Self Defence Defences Where you are charged with an offence, you may seek to deny liability: deny an element of the offence It didn’t happen or.. It happened BUT I didn’t do it or.. I did it BUT I didn’t mean to do it if successful, this signifies a failure of proof by the prosecution Defences OR accept that definitional elements satisfied BUT assert other facts that: excuse or justify your action AND constitute a defence ‘known to law’ Procedural difference: evidential burden for latter category on the defendant defendant must show some evidence to excuse or justify act before the jury has to consider the issue Defences to Murder What defences to murder are ‘known to law’ in this latter category? D accepts that s/he has intentionally caused death D asserts that other factors justify or excuse this Possibilities may be intoxication, mistake, duress, mental handicap but here: self defence at common law and s.3 Criminal Law Act 1967 provocation under s.3 Homicide Act 1957 Crime in England and Wales 2003/4 Incidents of Violence (page 81 Table 5.01) Number % Domestic Violence 446,000 16% Acquaintance Violence 905,000 33% Stranger Violence 958,000 35% Robberies/muggings 399,000 15% TOTAL 2,708,000 100% In 2003-2004, there were 853 deaths initially recorded as homicide Self Defence: the law Self defence is a full defence (ie acquittal) under s.3 Criminal Law Act 1967: …a person may use such force as is reasonable in the circumstances in the prevention of crime to ALL charges of violence if jury believe reasonable doubt exists that D believed she was acting in self defence and force reasonable to other crimes eg burglary –but see Martin [2002/136] but what constitutes ‘reasonable force’? Faulkner (Guardian 27th Oct 2004) Harry Stanley inquest (October 2004) NB Home Office considering ‘police defence’ reform Self Defence: conditions Triggering conditions: (nb D must show some evidence that these conditions existed) necessity - a belief that you were faced with an imminent attack against a protected interest and had no choice but to defend yourself reasonableness - the response was proportionate The need for self defence Necessity - attack must be imminent but can be anticipatory defence - Beckford 1988: Devlin v Armstrong 1971- exhorted crowd to build barricades and prepare petrol bombs - defence was belief police about to act unlawfully - must be specific and imminent threat • cf AG’s Ref 2/83 1984 - shop already attacked by rioters - prepared petrol bombs - threat imminent and means reasonable but not where you bring about the situation Malnik 1989 where D arms himself, going to meet V this can exclude battered wife who kills • Ahluwalia 1993 – set violent partner on fire while asleep The need for self defence Necessity - duty to retreat? where D creates (or is about to create) situation - Malnik 1989 no need to ‘retreat to the wall’ but should demonstrate unwillingness to fight - Julien 1969 and Bird 1985 The need for self defence Necessity - who judges necessity? Gladstone Williams 1984 • subjective test as to whether D believes that the need for self defence or defence of others exists • if D makes mistake, irrelevant that reasonable person would not have made that mistake- see AG for N. Ireland’s Ref 1977 but Art 2 ECHR – right to life: Andronicou v Cyprus 1998; McCann v UK 1996 • limits on states • but could impact on domestic law of self-defence Reasonableness of force Reasonableness: force used must bear proportionate relationship to threat Palmer 1971: cannot respond to fists with gun ‘excessive’ self defence does not provide defence ‘known to law’ • Law Commission Report 290 (Aug 2004) recommends: no specific defence of excessive force recasting provocation in such a way as to deal with such cases Reasonableness of force Reasonableness: who judges reasonableness of force used? Gladstone Williams 1984 - D can use such force as is (objectively) reasonable in the circumstances as he believes them to be but consider Shannon 1980 and Scarlett 1994 no distinction between necessity for force and amount of force Reasonableness of force Reasonableness of force used: Shannon 1980 and Scarlett 1994 reconsidered in Owino 1995 Cr L R 743 a person is not entitled to use any degree of force he believes to be reasonable, however ill- founded that belief Reasonableness of force Mistaken beliefs: on the necessity to use force - D is to be judged on the facts as he believes them to be - Williams on the reasonableness of that force - D is to be judged on the objective reasonableness of the force on the facts as he believes them to be - Owino