Evaluation of Self-Defence

Main Criticisms Argument that law favours the defendant Relevance of Defendant’s characteristics Reasonable force

Law Favours the Defendant D mistaken as to circumstances Gladstone Williams – allows defence for those who defend themselves whilst being mistaken to the circumstances, providing mistake is honest one Recognises that sometimes a quick reaction is needed or that people may not be fully rational when afraid S. 76 Criminal Justice and Immigration Act 2008 – provided the mistake was not made due to intoxication, D can rely on his mistake 2. No duty to retreat Bird – unnecessary to show an unwillingness to fight. There are circumstances where D may act without first retreating Beckford – circumstances may justify a pre-emptive strike 3. D may be original aggressor Keane and McGrath – defence can be pleaded where D is original aggressor, V’s response is disproportionate and D retaliates

Relevance of D’s Characteristics Should D’s characteristics be taken into account when considering whether D thought it was necessary to defend himself? Martin – court held that psychiatric evidence that D had a condition that meant that he perceived much greater danger than the average person was not relevant to the question of whether D had used reasonable force Cairns – when deciding whether D had used reasonable force in self- defence it was not appropriate to take into account whether D was suffering from a psychiatric condition which may have caused him to have a delusion that he was about to be attacked Difficult to know whether these decisions are still effective following Criminal Justice and Immigration Act 2008 that makes it clear that question of whether the degree of force is reasonable is decided by reference to the circumstances as D believed them to be

Reasonable Force Palmer – force does not have to be exactly proportionate and “a person defending himself cannot weigh to a nicety the exact measure f his necessary defensive action” But many high profile cases where D has been unsuccessful because the force used was excessive Martin – farmer who shot dead a burglar and was found guilty of murder led to high profile media campaign to clarify the law Prior to partial defence of Loss of Control – key criticism on self- defence cases was that if the defence fails in a murder case because it is an all-or-nothing defence, D faces a mandatory life sentence.

Attempts to Clarify the Law Coroners and Justice Act 2009 alleviates the problem of self-defence being an all- or-nothing defence by providing a partial defence of loss of control that can be pleaded in cases where D may use excessive force because of fear of serious violence – reduces conviction to voluntary manslaughter S. 76 Criminal Justice and Immigration Act 2008 – does not aim to change the law but it puts the rules of law established through case law into a statutory format S. 148 Legal Aid, Sentencing and Punishment of Offenders Act 2012 – to provide greater reassurance to householders about exercising their rights, by making it clear that a person can use reasonable force to defend property and that he is under no legal duty to retreat Crime and Courts Act 2013 – gives a wider defence to householders when an intruder enters their property – degree of force will not be regarded as reasonable only where it was “grossly disproportionate” as opposed to “disproportionate” in other cases