Topic 7
Topic 7
Self-defence
Topic 7
Self-defence
Introduction
There are three situations where the use of force may be justified:
Self-defence: this is a common-law defence, often termed ‘private
defence’, which also includes defence of another person and defence
of property.
Defence of property: this area is regulated partially by common
law and partially by statute, namely the Criminal Damage Act
1971.
Prevention of crime: this is a public or statutory defence covered
by the Criminal Law Act 1967, which states at s.3(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.’
Topic 7
Self-defence
Elements (1)
• For force to be justified, it must have been necessary.
• The defendant is judged in the circumstances as he or
she honestly believed them to be.
• To decide whether force was necessary, the jury will
consider the surrounding circumstances.
• The force must also be reasonable – this is a matter for
the jury in each case.
Topic 7
Self-defence
Elements (2)
• Pre-emptive strikes are permissible, so a person does
not have to wait to be attacked before defending himself
or herself.
• A defendant can use threats of force or threats of death
in order to try to stop an attack on himself or herself, or to
prevent a crime.
• If the defendant believes that he or she is at risk of an
attack on his or her person or property, he or she may be
able to make preparations in order to defend himself or
herself.
Topic 7
Self-defence
Elements (3)
• A defendant is not under a duty to retreat.
• If a defendant makes a mistake and thinks that selfdefence is necessary, he or she will be judged on the facts
as he or she honestly believed them to be. This is still the
case if the mistake was unreasonable.
• If the defendant uses excessive force, the defence will
fail.
Topic 7
Self-defence
Evaluation (1)
The ‘all or nothing’ effect
A situation may arise where some force is justified but the
defendant uses too much. This means that the defence
fails and critics have argued that this can lead to unfair
results. For some offences, the need for some force can be
taken into account when sentencing the defendant. In
murder cases, however, the mandatory nature of the
sentence means that this is not possible and the defendant
will be convicted and sentenced to life imprisonment.
Topic 7
Self-defence
Evaluation (2)
Intoxication
The current rule is that a defendant will not be able to rely
on a mistaken belief that self-defence is required if that
mistake has been made due to intoxication. This has been
criticised as being too harsh, particularly given that
intoxication is a defence to specific intent crimes.
Topic 7
Self-defence
Reform (1)
Allow an alternative conviction of manslaughter
To combat criticism of the ‘all or nothing’ nature of the
defence, it has been suggested that where some force is
justified but the defendant uses too much and causes the
death of the victim, it should be open to the jury to convict
him or her of manslaughter rather than murder. This
argument was rejected in Clegg, but the Law Commission,
in its consultation document ‘Partial Defences to Murder’
(2003), suggested that this area needs to be re-examined.
Topic 7
Self-defence
Reform (2)
Change the ruling in O’Grady
The rule in O’Grady is seen by some as too harsh, and it
has been suggested that mistakes as to the need for selfdefence induced by intoxication should operate as a
defence.