The justifiable use of force in self-defence

Self-defence (which includes acting in the prevention of crime) results in a compete acquittal. It allows rotationally criminal activity to be accepted by the courts. It can be used as a defence to all crimes, including murder. An obvious point here to consider is whether it is really morally right to allow those have taken lives to receive a full acquittal. It may be fair for lesser crimes, but maybe a partial defence should be introduced for those who have killed another. However, it is more commonly used for non-fatal offences. There are three situations in which force can be used.

This includes prevention of crime (S. 3 (1) Criminal Law Act 1967), defence of property (S. 5 (2) Criminal Damage Act 1971) and of course self-defence which is found in common law. As it is not laid down in a specific act, but just common law, it may provide some inconsistencies in the law. When the defendant pleads self-defence, the onus is placed on the prosecution to disprove it. There are two limbs to this principle. The prosecution must prove that the use of any force was unnecessary or, if some force was justifiable that the actual degree of force used was reasonable.

The first limb consists of the necessity of force, which is subjective test. This may be seen as a positive element to the defendant because the necessity of the force is considered through the circumstances as they appeared to the defendant at the time. However, this may wider the availability of the defence too much. 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 soothing means. It is not necessary for there to be a developing attack, the defendant can apprehend an attack.

In Beckford (1988), a policeman's family was threatened by a local drugs gang. He pummeled the dealer with a chair leg and there was no death. Lord Griffiths said that "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 a pre-emptive strike". A concern that may be raised here is how far the principle of pre-emptive strikes can actually go. This was also confirmed in Cousins (1982), where the defendant believed that a contract had been take out on his life.

He armed himself with a shotgun and paid a visit to the person's father who he thought was behind the contract and told him "I'm going to kill him". He was allowed the defence as Lord Milmo said "it can amount to a lawful excuse for a threat to kill if the threat is made in the prevention of crime or for self-defence, provided it is reasonable in the circumstances to make such a threat". Whether or not preparing to an attack to defend, even when it involves breaches of the law, was a question arisen in Attorney-General's Reference (No. 2 of 1983).

The defendant's shop had been attacked and damaged by rioters, so fearing further attacks he made petrol bombs. Even though possessing explosive substances is an offence under the Explosive Substances Act 1883, he was still allowed the defence. This may, however, be too unreasonable to produce petrol bombs and they are very dangerous. This, therefore, broadens the defence. The leading case in whether there is a duty to retreat is Bird (1985). The defendant lunged at her ex-boyfriend after his former girlfriend was holding her against the wall and threatened to hit her.

She contained a glass in her hand which broke in his face and gouged out his eye. The courts quashed her convictions as she had struck out in the "agony of the moment". It was said that it was not necessary for her to demonstrate a reluctance to fight. This may seem impractical as in some cases, there may be a chance to walk away safely resulting in no harm caused. However it does allow citizens to defend themselves when they feel that they need to. Whether or not mistakes can be used as to use force are arisen in common law.

In Williams (1987) the defendant saw a man repeatedly punching a youth who was struggling and calling for help. He asked why he was beating him and he replied that he was a police officer arresting the youth for mugging an old lady. This was true but he was not an officer and so had no identification to show to the defendant. A struggle broke about between them and Williams caused him injury. His convictions were quashed because he generally believed that he was preventing a crime. This case has a fair result, but it may cause problems for murder cases.

It would not be justified if a defendant is convicted of nothing when killing someone just because he/she was mistaken. An important exception to this, however, is where a defendant's mistake is caused by voluntary intoxication. A drunken mistake is likely to be honest, but unreasonable. In O'Grady (1987) the defendant and his friend had been drinking heavily when they fell asleep. The defendant claimed that he awoke as his friend (the victim) began hitting him, and so hit him with an ashtray, then went back to sleep.

In the morning the victim was dead and O'Grady was convicted of manslaughter. This was distinguished with Williams on the ground that it was not directly concerned with intoxicated mistakes. This may seem logical because intoxication is self-induced. However it may be difficult to consider how much alcohol makes self-defence unavailable. Also, it may be completely necessary to use force whether under the influence of alcohol or not, but of course if the defendant is he/she may not be able to rely on self-defence at all. The second limb includes the reasonableness of the force used.

This may seem objective, but it is critical that for the jury to put themselves in the circumstances which the defendant supposed (whether reasonably or not) to exist. This adds a subjective element. These ideas of objectivity and subjectivity are demonstrated in Palmer (1971) and Whyte (1987). In Palmer, Lord Morris said that "if a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken place".

This allows those to rely on the defence when they acted in the spare of the moment, and that at the time they generally believed it to be necessary. Lord Lane CJ in Whyte said that "the jury should be reminded that [the defendant's] state of mind, that his view of the danger threatening him at the time of the incident, is material. The test of reasonableness is not… a purely objective test". This, therefore, ensures that the defendant's characteristics are considered. However mental or psychiatric problems cannot be. This is an advantage to the defendant as it is less limited.

Then in Scarlett (1993) Beldam LJ inadvertently created the impression that the reasonable test was purely subjective. The defendant had used excessive force to evict a drunk from his pub, who fell down five steps, fatally striking his head and died. He was convicted of constructive manslaughter but this was quashed because of misdirection. Lord Beldham held that a jury ought not to convict "unless they are satisfied that the degree of force used was plainly more than was called for by the circumstances as he believed them to be" and "provided he believed the circumstances called for the degree of force used…

even if his belief was unreasonable". This may contradict the need for reasonableness, which broadens the availability of the defence. This suggestion was seized on by the defendant in Owino (1996). The defendant had been convicted of assault after repeatedly punching his wife in the face. He claimed that she had "gone for him" and had simply used force in order to restrain her. The jury thought that, whatever his wife had done, he had used excessive force, so was convicted.

The defendant appealed arguing that Scarlett allowed him the defence if he believed (reasonably or not) the amount of force was reasonable. His appeal was rejected and Collins LJ confirmed that the test was neither purely objective nor purely subjective. He illustrated that the test is mainly objective with a subjective twist and that reasonableness is extremely necessary. A key case in deciding whether the defendant used reasonable force is Martin (2002). The defendant lived alone on a farm and shot two men who had broken in after he had been plagued y burglars for years.

He was convicted of mudering and wounding but appealed on a number of grounds, one of which was that psychiatric evidence had emerged after the trial to the effect that he suffered from a paranoid personality disorder with recurrent bouts of depression. This meant that he may have genuinely thought he was in an extremely dangerous situation, but his appeal was rejected on the basis of self-defence. This may be fair because he had actually killed one of the victims, so being mistaken is not justified. It has been made clear that psychiatric problems are not to be considered for self-defence, but instead was given diminished responsibility.

However, Martin had claimed that he had experienced burglary for years and had lost faith in the police, who may have been ineffective. This, perhaps, should have been considered as received no protection after a long period of time after repeatedly being burgled. A point that may be arisen here is that he should have been given the self-defence as he may have felt that it was the last resort. Currently, if the jury concludes that the defendant used more force than was reasonable in self-defence and death results, then he/she is guilty of murder.

In Clegg (1995) the defendant was a soldier on duty at a checkpoint in the middle of nowhere, on his own. A car approched at spead with it's full headlights on, so he fired three shots throught the windscreen and another when the car had passed. This last shot hit a female passenger in the back and killed her. Forensic evidence showed that when the last shot was fired, the car would already have been ten yards away. He was convicted after the trial judge found that the lost shot could not have been fired in self-defence because once the car had passed, Clegg was no longer in danger.

This may be seen as unfair because it those particular circumstances of being alone in the middle of nowhere he may have feared great danger and seemed to be only doing his job. In the House of Lords the defendant's team argued this. It may have been more appropriate to have convicted him of manslaughter, rather than murder. It was said that there is no "half way house". The House of Lords may have had the oppurtunity to introduce a partial defence of self-defence to reduce murder to manslaughter, but they did not. However this may be justified as the last shot was unecessary.