Criminal Law: Public & Private Defence

Public & Private Defence

Defence of Persons

Establishing the Defence of Persons

The defendant has a defence to any offence involving the use of force if he used necessary and reasonable force to defend himself or another: R v Yaman [2012] EWCA Crim 1075. This defence is not available where a person uses force knowingly to prevent themselves from being lawfully arrested by a police offer: R v Browne [1973] NI 96.

When is Force Necessary or Reasonable?

Force is necessary if a reasonable person would have used force. The reasonable person has the same beliefs about the circumstances and level of danger as the defendant: R v Shaw [2002] 1 Cr App 10.

Force is reasonable if a reasonable person with the defendant’s factual beliefs would have used that level of force. The force used must not be disproportionate in the circumstances as the defendant believed them to be: Criminal Justice and Immigration Act 2008, s 76(6).

mental state, belief, mind

Whether force is necessary and reasonable is assessed according to the circumstances as the defendant honestly believed them to be. This is true even if this belief is not reasonable: Criminal Justice and Immigration Act 2008, s 76(4). Facts which the defendant was unaware of cannot be relied on: R v Dadson (1850) 2 Den 35.

alcohol, intoxication, beer

There is an exception to this rule where the defendant mistakenly believes something because he is voluntarily intoxicated: s 76(5). If the defendant makes a mistake because he is voluntarily intoxicated, he cannot rely on the mistaken belief.

The focus is on whether the use of force was reasonable. It is therefore not relevant that the force had some unexpected consequence, such as killing the victim: R v Keane [2010] EWCA 2514.

retreat, walk away, leave

It is relevant to whether force was reasonable and necessary that the defendant could have retreated, though he is not under a formal duty to retreat: Criminal Justice and Immigration Act 2008, s 76(6A).

legitimate purpose, security, defence

A person acting instinctively for legitimate purposes may not have time to weigh up and think through a given course of action, and should not be expected to: Criminal Justice and Immigration Act 2008, s 76(7).

threat, harm, danger

When determining the level of danger the defendant perceived, the jury may take into account the defendant’s physical characteristics: R v Martin (Anthony) [2001] EWCA Crim 2245.

The Relationship Between Defence and Insanity

Generally, the jury cannot take into account the defendant’s psychiatric abnormalities: R v Martin (Anthony) [2001] EWCA Crim 2245. Insane delusions cannot be attributed to the reasonable person when determining whether the force used was reasonable and proportionate: R v Oye [2013] EWCA Crim 1725. The argument for this is that the defendant should be relying on the defence of insanity instead.

Some cases have allowed psychiatric evidence to be considered by the jury. This was were the evidence related to whether the defendant thought it was necessary to use force in the first place, rather than whether the level of force used was reasonable: R v Press [2013] EWCA Crim 1849; R v Ibrahim [2014] EWCA Crim 121. The law is somewhat unclear on when mental characteristics may be taken into account, as a result.

Preemptive Defence and Provoked Attacks

Even if the victim has not yet attacked the defendant, preemptive force may still be necessary and reasonable so long as the defendant anticipates an imminent attack: Devlin v Armstrong [1971] NI 13; R v Beckford [1987] 3 All ER 425.

However, a defendant cannot rely on self-defence where they deliberately provoked the victim as an excuse for violence: R v Mason (1756) Fost 132. A person who starts a fight is still entitled to defend themselves if the victim goes beyond self-defence and escalates the fight, however. For example, the defendant might be expecting a fist fight but the victim draws a knife. It is still the case that the defendant cannot rely on self-defence if they provoked violence intending that it would escalate: R v Rashford [2005] EWCA Crim 3377; R v Harvey [2009] EWCA Crim 469.

Householder Cases

A householder case is one where the defendant:

  1. Relies on self-defence inside or partially inside a dwelling or other accommodation (or part of a building internally accessible from these locations);
  2. Is not a trespasser; and
  3. Honestly believed the victim was in or entering the building as a trespasser: Criminal Justice and Immigration Act 2008, s 76(8A).

There is no need for the defendant to be the homeowner: R v Day [2015] EWCA Crim 1646.

In householder cases, the degree of force used is not to be regarded as reasonable in the circumstances as the defendant believed them to be if it was grossly disproportionate: s 76(5A). Force which is not grossly disproportionate may still be unreasonable in the circumstances, however: R v Ray [2017] EWCA Crim 1391. This seems to imply that disproportionate force can be reasonable in householder cases, though not in all householder cases.


Arrest & the Prevention of Crime

It is a defence to use necessary and reasonable force ‘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’: Criminal Law Act 1967, s 3(1).

In both cases, the same rules described above apply to determine if the force is necessary and reasonable: R v Morris [2013] EWCA Crim 436.

Preventing Crime

There must be a link between the use of force and an imminent or immediate crime which the defendant believed he was preventing by using force: R (DPP) v Stratford Magistrates Court [2017] EWHC 1794 (Admin). Private citizens are generally expected to call the police to prevent the crime if they can.

Since taking property without consent is a criminal offence, defence of property may fall under the defence of preventing crime. If the offence is criminal damage, however, normally the more appropriate defence is section 5 of the Criminal Damage Act 1971: R v Jones [2006] UKHL 16.


0%

Criminal Defences Quiz

Test yourself on the principles governing when a defendant has a defence to a criminal charge.

1 / 31

What are the two elements of the defence of insanity?

2 / 31

Micah mistakenly believes that Joseph is threatening to kill her unless she robs a bank. Can she rely on her mistaken belief to establish the defence of duress?

3 / 31

Insanity is not a defence to an offence of negligence or strict liability. True or false?

 

4 / 31

When determining whether a sober and reasonable person would have succumbed to a duress, what characteristics of the defendant is the hypothetical person given?

5 / 31

Is the defence of necessity available to an offence of strict liability?

 

6 / 31

Josephine commits a crime involuntarily because of a hypoglycemic episode. Which defence would you advise her to rely on?

7 / 31

Moira, a teenager, joins a local gang to obtain protection against bullies at school. She knows that the gang have engaged in violent robberies in the past, but the gang leader promises her that they will not involve her in these as she is too young. The gang later threatens to cripple her mother if she does not hold onto a package of drugs for them. Can Moira rely on the defence of duress when charged with drug possession?

 

8 / 31

Celestine owes a loan shark, Mia, a lot of money. On Sunday night, Mia tells her that if Celestine does not pay her back by Monday morning she will kill her daughter. Celestine tries to get help from the police, but they tell her they do not believe her. Celestine then robs a local corner store to get the money to pay back Mia, but is caught soon after and arrested. Can Mia rely on the defence of duress?

 

9 / 31

Leo is trying to escape a burning building. The only way out is up a ladder, but that ladder is being blocked by Gareth. Gareth is frozen in fear and cannot move out of the way to let Leo pass, nor can he move up the ladder. Because they will both die if Leo does nothing, Leo pulls Gareth off the ladder, causing him to fall to his death. He is later charged with Gareth's murder. Is the defence of necessity available to him?

 

10 / 31

Omar takes prescription medicine for depression. One day, he has a rare reaction to the medicine which causes him to involuntarily commit a criminal offence. The prosecution argue that he cannot rely on the defence of automatism, because he voluntarily took the medicine which caused the automatism. Will this argument succeed?

 

11 / 31

When establishing the defence of duress, what three elements must exist before the impact of the threat on the defendant is considered sufficient?

12 / 31

Atticus gets extremely drunk at a party, and commits an offence as a result. He claims the alcohol made him act involuntarily, and advances the defence of automatism. Will his defence succeed?

 

13 / 31

Can an adult be convicted of being an accessory to a crime committed by a child under the age of criminal responsibility?

 

14 / 31

Micah is charged with stealing drugs from a pharmacist. They rely on the defence of duress, arguing that they were under the threat of serious injury or death as they were withdrawing heavily from medication at the time. Is the defence likely to succeed?

 

15 / 31

What are the two elements of the defence of persons defence?

16 / 31

Lucy, Theo and Marius were trapped in a sinking ship. To buy time pending the arrival of a rescue vessel, Lucy threw Theo overboard. Theo drowned. Lucy has been charged with murdering Theo. She proves that if she did not kill Theo, the ship would have sunk and she and Marius would have died. Can she rely on the defence of necessity?

 

17 / 31

Josephine commits a crime involuntarily because of a hyperglycemic episode. Which defence would you advise her to rely on?

18 / 31

What three elements must be shown to establish the defence of necessity?

19 / 31

Can the defence of self-defence be relied on if the defendant provoked the victim to attack?

20 / 31

For the purposes of the defence of insanity, a disease of the mind may be caused by any internal or external trigger. True or false?

 

21 / 31

What is the age of criminal responsibility in England and Wales?

22 / 31

What three elements must the defendant show to rely on the defence of automatism?

23 / 31

For the purposes of the defence of insanity, a disease of the mind includes mental illnesses and not physical illnesses. True or false?

 

24 / 31

Ellen is 17 years old but suffers from a developmental disorder which gives her the emotional maturity of a 7 year-old. Can she escape liability on the grounds that she lacks criminal responsibility?

 

25 / 31

What are the three elements of the defence of duress?

26 / 31

Celestine owes her drug dealer, Mia, a lot of money. On Sunday night, Mia tells her that if Celestine does not pay her back by Monday morning she will kill her daughter. Celestine tells her she does not have the money, so Mia tells her to mug Richard as he carries a lot of money on him at all times. Celestine tries to get help from the police, but they tell her they do not believe her. Celestine robs Richard, but is caught soon after and arrested. Can Mia rely on the defence of duress?

 

27 / 31

Celestine is driving when she feels the onset of a hypoglycemic episode. She is not able to pull over in time before the episode starts. She is barely in control of her body, but is able to move the steering wheel a little and as a result is able to avoid hitting pedestrians. She eventually collides with a tree. Can Celestine rely on the defence of automatism in relation to any criminal offence she is charged with?

28 / 31

People are under a duty to retreat rather than use force in self-defence is they are able. True or false?

 

29 / 31

Can the defence of self-defence be relied on where the force is used pre-emptively?

30 / 31

Is duress a defence to murder?

31 / 31

When establishing self-defence or defence of others, can the defendant rely on any mistaken beliefs as to the circumstances that are the result of his being voluntarily intoxicated?

 

Your score is