Criminal: Self-Defence, Lawful Force And The Protection Of Property

Front 1

What are self-defence, lawful force and the protection of property?

Back 1

Three types of defence which are all closely linked

Front 2

Can self-defence be pleaded with other defences?

Back 2

Yes! Self-defence is often pleaded with loss of control and diminished responsibility

Front 3

What are these three defences types of?

Back 3

Justification defences

Front 4

What do these three defence act by?

Back 4

They exempt the defendant from liability of an act which may have been an offence but which is not held to be legal

Front 5

When can these defences be pleaded?

Back 5

They can be pleaded on any defence which includes use of force. They are full defences leading to acquittal.

Front 6

Who has the burden of proof in terms of theses defences?

Back 6

The prosecution has the burden of proof to disprove the defence in order to prevent an acquittal

Front 7

When is lawful force used as a defence?

Back 7

When you are trying to prevent a crime

Front 8

Which statute is lawful force derived from?

Back 8

S3 Criminal Law Act 1967

Front 9

When is self-defence used as a defence?

Back 9

This defence is used for attacks on people

Front 10

When is protection of property used as a defence?

Back 10

This defence is used for attacks on property

Front 11

Can more than one of these defences apply at one time?

Back 11

Yes

Front 12

Have these defences been codified into law?

Back 12

Yes, firstly in s76 Criminal Justice and Immigration act 2008 which ‘clarifies the operation of the existing defences’ and later amended by the crime and courts act 2013

Front 13

Which statute is lawful force contained in?

Back 13

s3(1) Criminal Law Act 1967

Front 14

What does the act say about lawful force?

Back 14

That a person can use lawful force (reasonable in the circumstances) only to prevent crime, effect a lawful arrest or assist in making a lawful arrest

Front 15

What is the leading authority for lawful force?

Back 15

R v Fennell 1971

Front 16

What is the requirement for self-defence?

Back 16

‘The defendant must have an honest belief in the need for the use of reasonable force to protect themselves or someone else from an imminent attack’

Front 17

Where does this definition come from?

Back 17

The elements of the definition are made up from different cases

Front 18

What is the authority for ‘honest belief’?

Back 18

R v Gladstone Williams 1984

Front 19

What is the rule in Gladstone Williams?

Back 19

You are tried on the facts which you believe them to be

Front 20

Which other case outlines ‘honest belief’?

Back 20

Beckford v The Queen 1988

Front 21

What is the leading authority for ‘the need for’

Back 21

R v Bird 1985

Front 22

What does Bird demonstrate?

Back 22

You can fight back when attacked however if you can show you have retreated then it is good evidence of self-defence

Front 23

What is the leading authority for ‘the use of reasonable force’

Back 23

R v Clegg (1995)

Front 24

What is the rule that Clegg demonstrates?

Back 24

Force should not be excessive, it has to be reasonable and proportionate.

Front 25

What are the leading authorities for ‘imminent attack’?

Back 25

AG’s Ref No.2 (1983) and the Case of Tony Martin

Front 26

What did the case of Tony Martin outline?

Back 26

That you cannot take the non-physical characteristics of a defendant into account as this is an objective test

Front 27

Which defence does protection of property follow?

Back 27

Protection of property is a common law defence which follows the same elements of self-defence

Front 28

Which subsection discusses protection of property?

Back 28

s76(5)(a)

Front 29

What does s76(5)(a) say?

Back 29

That a householder has a complete defence if the force used was reasonable and exercised in defence of himself or protecting against a crime

Front 30

What were the key criticisms over s76(5)5(a)?

Back 30

Many conservatives are calling for the reasonable test in protecting property to be changed to allow homeowners not to be prosecuted unless their actions were ‘greatly disproportionate’ however, critics have said this could cause a rise in vigilante justice

Front 31

What was an answer to the criticism of s76(5)(a)?

Back 31

The Crime and Courts Act 2013 was created which amended s76 CJAI 2008 to allow a person to be acquitted from a case of self-defence in their home where the force against the intruder was disproportionate but not grossly disproportionate

Front 32

What is the difference between protection of property and self-defence?

Back 32

You can use less force in protecting a property in comparison to protecting a person

Front 33

Are you likely to get a protection of property question on the exam?

Back 33

No, this defence has been subsumed into the other defences

Front 34

What is the standalone defence aside from the main three?

Back 34

Mistake

Front 35

What is the main rule on mistake?

Back 35

It must be an honest mistake

Front 36

What is the leading authority for mistake?

Back 36

DDP v Morgan 1975 or Rv Gladstone Williams 1984

Front 37

What is important to know about DPP v Morgan?

Back 37

It no longer applies to sexual assault cases

Front 38

Which other case is an example of mistake?

Back 38

R v O’Grady 1987

Front 39

Which act codifies self-defence?

Back 39

S76 Criminal Justice and Immigration Act 2008

Front 40

What are the key sections of s76 Criminal Justice and Immigration Act ?

Back 40

1, 3, 4, 5, 5(a), 6, 6(a), 7(a) and (b)

Front 41

Name some proposals for reform:

Back 41

There should be a partial defence where excessive force in self-defence should lead to a conviction of manslaughter. This could have been resolved through the defence of killing through fear as a qualifying trigger.

Academics suggest that the law should be kept the same but the mandatory life sentence for murder should be changed however, this is unpopular with the public