While it is accepted that a person may generally defend themselves and their property from attack, the courts and parliament have always been mindful of minimizing the risk of over-zealous retaliation in such a situation. There is always the danger that the defendant may take on the role of attacker. Public policy also dictates that revenge attacks or vigilante type behaviour must be discouraged at all costs. For this reason, the use of any force in self defence must always pass the test of reasonableness.
This is however a question of fact for the jury, taking into account all revelant factors in the case. Force causing damage to property, injury or even death may be justified if the force was reasonably used in the defence of certain public or private interests. The use of lawful force is not an offence: because an element of the actus reus is missing. There are actually three situations where force can be used:- Firstly there is self defence which is regulated purely by the common law. Secondly there is prevention of crime which is covered by s.
3(1) of the Criminal Law Act 1967, which provides that a "person may 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". Finally there is defence of property which is partially but not exclusively covered by s. 5(2) of the Criminal Damage Act 1971. There is a large potential for overlap between the two defences. As for example a man who uses force to overpower a mugger is using self defence in respect of himself as well as using force to prevent crime (robbery)
Where there is evidence of self defence this must be left to the jury. However, there must be evidence before the court on which a reasonable jury might think it was reasonably possible that the defendant was acting in self defence. The judge is not required to direct a jury on what appears to the judge to be a fanciful or speculative matter. Self defence is usually raised to charges of offences against the person, but it is not confined to them. In the case of Symonds (1998),a case of "pedestrian rage".
The defendant was convicted of careless driving after the trial judge omitted to direct the jury on the possibility that he had driven his car in self defence to escape an irate pedrestrian. The Court of Appeal acknowledged that there was some difficulty with deploying self defence to offences other than those where force is involved but nevertheless held that the judge should have directed the jury on the defence. However the court's hesitancy about allowing the defence was justified: on the facts, the more appropriate defence was duress of circumstances. There are limits to the defence of self defence.
When the defendant pleads self-defence, the burden of proof is on the prosecution to disprove it. The prosecution must prove that the use of any force was unnecessary or, if some force was justifiable, that the actual degree of force was unreasonable. The use of any force is not justified if is not necessary. The test is whether it was necessary in the circumstances as they appeared to the defendant. The danger that the defendant apprehends must be sufficiently specific or imminent to justify their actions, and of a nature which could not reasonably be met by more pacific means.
There is also the issue of threats and pre-emptive strikes. It was decided that it is not necessary for there to be an attack in progress. It is sufficient if the defendant apprehends an attack. In Beckford (1998), lord Griffiths said " A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify an pre-emptive strike". It follows that it will be permissible for the defendant to issue threats of force, even threats of death, if that might prevent an attack upon themselves or prevent a crime taking place.
This was shown in the case of Cousins (1982), the defendant believed that a contract had been taken out on his life. He armed himself with a shotgun and paid a visit to the father of the person he thought was behind the contract. He told the father that when he saw his son " I'm going to kill him I'm going to blow his brains out" When the defendant was charged with making threats to kill he relied upon the s. 3 defence. The trial judge directed the jury that the defence was unavailable because the defendant's life was not in immediate jeopardy.
He was convicted but the court of appeal quashed the conviction. Milmo J said that "It can amount to an lawful excuse for a threat to kill if the threat is made in the prevention of crime or for self fefence, provided it is reasonable in the circumstances to make such a threat" There have also been questions about whether when the defendant apprehends an attack upon himself, may he make preparations to defend himself, even where that involves breaches of the law? This was shown in the case of Attorney-General Reference (No.
2 of 1983) (1984). In this case the defendant had made petrol bombs because of previous attacks and damages to his shop and he feared further attacks. He was charged with possessing an explosive substance contrary to the Explosive Substances Act 1883. He pleaded self defence and the jury acquitted. The court of appeal accepted that this was correct. This seems to suggest that in certain circumastancesin order to protect yourselves and your property you do things that involve breaches of the law.
The dilemna with wheter the defendant has a duty to retreat was adreesed in the case of Bird (1985). In this case the defendant was convicted of wounding aftervthe trial judge directed the jury that defendant must have demonstrated by her actions that she did not want to fight. The court of appeal however quashed her conviction, making it clear that this direction "placed too great an obligation" on the defendant. In particular it was going to far to say that it was "necessary" for her to demonstrate an reluctance to fight.