Self Defence

Self defence is a... [blank_start]Justificatory[blank_end] defence It legitimises D's [blank_start]unlawful[blank_end] behaviour General defence It applies to every case where D is not the cause of the initial [blank_start]physical[blank_end] contact [blank_start]Complete[blank_end] defence It provides a full [blank_start]acquittal[blank_end] if successful

An excusatory defence "excuses" D's behaviour. Examples are diminished responsibility, loss of control and in some cases, intoxication.

Excusatory defences are subject to a [blank_start]reasonable[blank_end] test.

Self-defence is subject to a [blank_start]two-fold[blank_end] test: 1. The use of force must be [blank_start]necessary[blank_end], and... 2. The use of [blank_start]force[blank_end] must be reasonable. Both the subjective and [blank_start]objective[blank_end] elements must be satisfied.

Necessity is the [blank_start]subjective[blank_end] element of the test. Reasonableness is the objective element of the test.

R v Owino concerns the [blank_start]reasonableness[blank_end] of force used. Devlin v Armstrong concerns the [blank_start]imminence[blank_end] of force used. Beckford v R and A-G's Reference concern [blank_start]pre-emptive strikes[blank_end]. [blank_start]R v Julien[blank_end] and R v Bird concern a duty to retreat. R v Clegg concerns [blank_start]excessive[blank_end] force. R v Martin concerns the [blank_start]necessity[blank_end] of force. R v Ahluwalia concerns the [blank_start]necessity, imminence and proportionality[blank_end] of force.

The [blank_start]defendant[blank_end] has the evidential burden. D must raise enough [blank_start]evidence[blank_end] to prove to the judge a case of self-defence. The prosecution has the [blank_start]burden of proof[blank_end]. They have the onus - they must rebut the [blank_start]presumption[blank_end] of a self-defence case. The standard of proof is [blank_start]beyond reasonable doubt[blank_end].

The [blank_start]Legal Aid[blank_end], Sentencing and Punishment of Offenders Act 2012, [blank_start]s148[blank_end] dismantled [blank_start]legal aid[blank_end] and asserted that there is no duty to retreat in the face of trespass to property. The [blank_start]Crime and Courts Act 2013[blank_end], [blank_start]s43[blank_end] inserted clause [blank_start]5A[blank_end] which states that the use of force can be now up to anything '[blank_start]grossly disproportionate[blank_end]' in householder cases.

[blank_start]Bleasdale-Hill[blank_end] suggests that the amendment to section [blank_start]76[blank_end] can be criticised as [blank_start]unnecessary[blank_end] in an area that was seemingly operating without great difficulty. [blank_start]Confusion is added[blank_end] to the law through the absence of a definition of '[blank_start]grossly disproportionate[blank_end].'

[blank_start]Thomson[blank_end] said that the aggressor temporarily [blank_start]forfeits[blank_end] his rights the moment he poses a [blank_start]threat[blank_end] to another.

[blank_start]Uniacke[blank_end] said that possessing the [blank_start]right to life[blank_end] is dependent on the [blank_start]conduct[blank_end] exhibited by the individual.

[blank_start]Sangero[blank_end] argued that [blank_start]three[blank_end] conditions must be met in order to satisfy self-defence: 1. The [blank_start]guilt[blank_end] of the aggressor 2. A social-legal order in need of [blank_start]protection[blank_end] 3. The victim's [blank_start]autonomy[blank_end] Self-defence can be [blank_start]justified[blank_end] on the basis of the [blank_start]social interest of the public order[blank_end] and the legal system in particular.

[blank_start]Wake[blank_end] said that it is essential to consider the background to D's plea when [blank_start]assessing criminal liability[blank_end]. It can change the way we understand [blank_start]self-defence[blank_end].

Criminal Law Act 1963, [blank_start]s3(1)[blank_end] governs the law on self-defence. It is about the idea of one being able to [blank_start]protect[blank_end]/defend himself from harm. This Act merely [blank_start]complimented[blank_end] the common law defence, but it is [blank_start]narrower[blank_end] in its application. [blank_start]Criminal Justice and Immigration Act[blank_end] 2008, s76 applies to both the common law and statutory defence, as above. It does replace the existing law above. It merely [blank_start]codifies[blank_end] it. It has an [blank_start]objective element[blank_end] and was enacted under the [blank_start]Labour[blank_end] government.