Crime CXXIV – Self Defense XIV

S.76 of the Criminal Justice and Immigration Act of 2008, does not change the law or its application and merely codifies the principles that have been established at common law.

In R v McGrath (2010) the defendant and the victim were out drinking celebrating their results and later they moved on to the defendant’s flat. The celebrations turned sour and an argument ensued. The argument got heated and according to the defendant the victim attacked her physically, spit at her and bit her and the defendant grabbed a kitchen knife and stabbed the victim. The knife went through the victim’s heart and he died. The defendant was arrested and tried and at her trial, she claimed, self-defense or that she was merely reacting, instinctively, to the attack.

The trial judge directed the jury on mistaken belief and on s.76 of the Criminal Justice and Immigration Act of 2008 and the jury found the defendant not guilty on the count of murder but guilty instead on the count of manslaughter. The defendant appealed on the grounds that mistaken belief was a misdirection when it fact there was no mistake and the defendant was indeed being attacked.

The appeal was dismissed. While the direction on mistaken belief should be avoided when the victim claims that he or she was being attacked, that in itself was not sufficient to make the conviction unsound. On s.76 of the Criminal Justice and Immigration Act of 2008, it does not alter the law and the law remains as it is. S.76 of the Criminal Justice and Immigration Act is not exhaustive and whether the defendant acted in self-defense or otherwise depends on the facts.

Copyright © 2018 by Dyarne Ward

Crime CXXIII – Self Defense XIII

The defense of self-defense will not avail itself to the defendant if the defendant is the aggressor or has provoked the response or the attack. In R v Keene (2010) the defendant was out drinking.

At his last stop, he met the victim who offered to give him a lift. On their way home the victim pulled over to get some petrol and the defendant got into an argument with another passenger in the car, who was smoking, telling her not to smoke.

The argument got heated and the victim intervened. The defendant thought that the victim was about to attack and preemptively struck the victim, hitting him with a closed fist.

The victim fell to the ground and his head hit the pavement resulting in serious head injuries. The defendant was charged and he contended that his actions were in self-defense.

The trial judge directed the jury to the effect that the defense of self-defense will not avail itself to the defendant if the defendant was the aggressor or he provoked the attack and the jury accordingly convicted the defendant for inflicting grievous bodily harm. The defendant appealed.

The appeal was dismissed and it was held that when the defendant is the aggressor or perpetrator, or has provoked the attack, the defense of self-defense will not avail itself to the defendant unless the victim reacted in a manner that was so out of the ordinary or so out of proportion that it put the defendant in immediate fear of his or her life.

Copyright © 2018 by Dyarne Ward

Crime CXXII – Self Defense XII

If the defendant suffered from an abnormality of the mind, and reacted to a situation in the way and manner a normal person would not have or had used excessive force in defending himself or his property, keeping in mind that the defendant’s actions when acting in self-defense is normally instinctive, and all that the defendant needs to establish is that he or she felt that at the time his or her actions were honestly and instinctively necessary to defend himself or herself, the defense of self-defense may not avail itself to the victim, if the prosecution can prove beyond reasonable doubt that the defendant was not acting in self-defense.

In R v Martin (2002) the defendant lived by himself in an isolated farmhouse which for all purposes looked rundown and to some extent dilapidated and had in the past been subjected to numerous break-ins. On the night in question the victim and his friend tried to break into the farmhouse and the defendant went downstairs armed with a shotgun and shot at both the intruders hitting the victim in the back and thereby killing him. At his trial the defendant raised the defense of self-defense. The jury rejected the defense and convicted the defendant for murder. The defendant appealed on the grounds that he suffered from a personality disorder and that should have been taken into account.

On appeal the conviction for murder was quashed. While a personality disorder will not be considered for the purposes of self-defense, the jury ought to have taken into account psychiatric reports that suggested that the defendant suffered from an abnormality of the mind.

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Crime CXXI – Self Defense XI

By virtue of S.76 of the Criminal Justice and Immigration Act 2008 the common law defense of self-defense was given statutory effect (an act of parliament is higher than common law and in case of conflict between the two, an act of parliament or statutory law will prevail).

S.76 of the Criminal Justice and Immigration Act 2008 reads as follows: –

Reasonable force for purposes of self-defence etc.

(1) This section applies where in proceedings for an offence—

(a) an issue arises as to whether a person charged with the offence (“D”) is entitled to rely on a defence within subsection (2), and

(b)the question arises whether the degree of force used by D against a person (“V”) was reasonable in the circumstances.

(2) The defenses are—

(a) the common law defence of self-defence; and

((aa) the common law defence of defence of property; and)

(b) the defences provided by section 3(1) of the Criminal Law Act 1967 (c. 58) or section 3(1) of the Criminal Law Act (Northern Ireland) 1967 (c. 18 (N.I.)) (use of force in prevention of crime or making arrest).

(3) The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be, and subsections (4) to (8) also apply in connection with deciding that question.

(4) If D claims to have held a particular belief as regards the existence of any circumstances—

(a)the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but

(b)if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not—

(i)it was mistaken, or

(ii) (if it was mistaken) the mistake was a reasonable one to have made.

(5) But subsection (4)(b) does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced.

((5A) In a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in those circumstances.)

(6) (In a case other than a householder case,) the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances.

((6A) In deciding the question mentioned in subsection (3), a possibility that D could have retreated is to be considered (so far as relevant) as a factor to be taken into account, rather than as giving rise to a duty to retreat.)

(7) In deciding the question mentioned in subsection (3) the following considerations are to be taken into account (so far as relevant in the circumstances of the case)—

(a)that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and

(b)that evidence of a person’s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.

(8) (Subsection (7) is) (Subsections (6A) and (7) are) not to be read as preventing other matters from being taken into account where they are relevant to deciding the question mentioned in subsection (3).

((8A) For the purposes of this section “a householder case” is a case where—

(a)the defence concerned is the common law defence of self-defence,

(b)the force concerned is force used by D while in or partly in a building, or part of a building, that is a dwelling or is forces accommodation (or is both),

(c)D is not a trespasser at the time the force is used, and

(d)at that time D believed V to be in, or entering, the building or part as a trespasser.

(8B) Where—

(a)a part of a building is a dwelling where D dwells,

(b)another part of the building is a place of work for D or another person who dwells in the first part, and

(c)that other part is internally accessible from the first part,

that other part, and any internal means of access between the two parts, are each treated for the purposes of subsection (8A) as a part of a building that is a dwelling.

(8C) Where—

(a)a part of a building is forces accommodation that is living or sleeping accommodation for D,

(b)another part of the building is a place of work for D or another person for whom the first part is living or sleeping accommodation, and

(c)that other part is internally accessible from the first part,

that other part, and any internal means of access between the two parts, are each treated for the purposes of subsection (8A) as a part of a building that is forces accommodation.

(8D) Subsections (4) and (5) apply for the purposes of subsection (8A)(d) as they apply for the purposes of subsection (3).

(8E) The fact that a person derives title from a trespasser, or has the permission of a trespasser, does not prevent the person from being a trespasser for the purposes of subsection (8A).

(8F) In subsections (8A) to (8C)—

“building” includes a vehicle or vessel, and

“forces accommodation” means service living accommodation for the purposes of Part 3 of the Armed Forces Act 2006 by virtue of section 96(1)(a) or (b) of that Act.)

(9) This section(, except so far as making different provision for householder cases,) is intended to clarify the operation of the existing defences mentioned in subsection (2).

(10) In this section—

(a) “legitimate purpose” means—

(i)the purpose of self-defence under the common law, (or)

((ia)the purpose of defence of property under the common law, or)

(ii)the prevention of crime or effecting or assisting in the lawful arrest of persons mentioned in the provisions referred to in subsection (2)(b);

(b)references to self-defence include acting in defence of another person; and

(c)references to the degree of force used are to the type and amount of force used.

Crime CXX – Self Defense X

When the jury is convinced excessive force was used and the jury returns a verdict of guilty of murder, should the verdict be substituted for a verdict of guilty of manslaughter if the appellant was acting in self-defense?

In R v Palmer (1971) the appellant and two others were chased by some men after they’d stolen some drugs. During the chase the appellant fired some shots and one of the men that was chasing them was killed by a gunshot. The appellant was arrested and tried and according to the appellant he did not fire the shot. The judge however directed the jury on self-defense and the jury returned a verdict of guilty of murder. The appellant appealed on the grounds that the judge having directed the jury on self-defense, the jury should have returned a verdict of manslaughter.

The appeal was dismissed. If a verdict of murder is returned, when the appellant has pleaded self-defense there is no option to substitute a murder conviction with that of manslaughter.

“If there has been an attack so that defense is reasonably necessary it will be recognized that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. 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.” – Lord Morris.

There are three salient points to be observed here: –

  1. It is up to the prosecution to prove, beyond reasonable doubt that the defendant was not acting in self-defense and if the prosecution has successfully done that than the defense of self-defense will not avail itself to the defendant/appellant.
  2. Secondly the court appreciates the fact that a person who is being attacked is not in a position or not in the state of mind to weigh the defensive measures he or she takes, and in most instances cannot control the amount of force that is exerted while defending himself or herself.
  3. If the jury decided that at the heat of the moment, at the time of the attack, that the defendant did what he or she thought was honestly and instinctively necessary than that would be strong evidence to suggest that the defendant was acting in self-defense.

Copyright © 2018 by Dyarne Ward

Crime CXIX – Self Defense IX

With reference to the decision in R v Bird (1985), it may seem or look like, to most of us anyway, that the court should impose a duty to back away or a duty to retreat prior to granting or allowing the defendant to raise the defense to self-defense however the decision in R v Bird (1985), is not without its merits.

One of the reasons that the courts are reluctant to impose a duty to back away or a duty to retreat in situations like that in R v Bird (1985) is because it may place the defendant in greater danger and decisions like the decision in R v Bird (1985) become more relevant in the area of psychological profiling.

There is nothing to suggest that the defendant backing away, or retreating, for that matter, will make the attacker relent. If anything, it tends to suggest the opposite, especially in areas of spouse or wife abuse where the wife or spouse’s helplessness or weakness to some extent aggravates the situation as implied by the facts in cases like R v Duffy (1949), R v Ahluwalia (1993) and R v Thornton (1996).

In R v Thornton (1996), the victim was particularly abusive towards his wife and on the day in question he threw his wife out of the house after abusing her together with a suitcase filled with her clothes.

She returned later that day and tried to patch things up and the victim was even more abusive towards her. She then went into the kitchen and grabbed hold of a kitchen knife and she tried to patch things up again, but her husband continued to be abusive and finally she stabbed him in the stomach with the kitchen knife and killed him.

She was charged with murder and at her trial she raised the defense of diminished responsibility, but she did not raise the defense of provocation. The judge however did direct the jury on provocation. The jury convicted the defendant for murder and the defendant appealed.

Her appeal was allowed in line with the decision in R v Ahluwalia (1993). It was found that the defendant suffered from a syndrome called battered women’s syndrome.

Copyright © 2018 by Dyarne Ward

Crime CXVIII – Self Defense VIII

In order to the rely on the defense of self-defense the defendant does not have to back away from a situation or there is no requirement for the defendant to withdraw prior to using reasonable force or force that is necessary i.e. there is no duty to retreat.

While it goes to show or demonstrate that the defendant was acting in good faith there is no requirement that the defendant should retreat prior to the situation getting out of hand or out of control.

In R v Bird (1985) the defendant was at a party when her ex-boyfriend turned up with his new girlfriend. He approached the defendant and a heated argument ensued and the defendant asked him to leave. He did so but returned later and the argument flared up again and got more heated.

The defendant got so worked up that she poured her drink over her ex-boyfriend and he retaliated by slapping her and pining her to the wall. The defendant responded by punching him in the eye and when she did so, the glass in her hand broke and caused him to go blind in one eye.

The defendant was charged under s20 of the Offences Against Person Act (1861). The trial judge directed the jury to the effect that in order for the defendant to rely on the defense of self defense she must have backed away or retreated at the time the argument got heated. The jury accordingly convicted the defendant and the defendant appealed on the grounds that in order for her to rely on the defense of self-defense there is no need to demonstrate an unwillingness to fight.

The appeal was allowed and the conviction was quashed. While an unwillingness to fight or backing away from an explosive situation goes to demonstrate that the defendant was acting in good faith, there was no legal obligation that compelled her to do so or it was not absolutely necessary that she did so.

Copyright © 2018 by Dyarne Ward

Crime CXVII – Self Defense VII

In R v Scarlett (1994) the defendant was a publican who was trying to evict a customer who was drunk. The defendant asked the customer to leave and he refused to do so and the defendant believed that the man was about to strike him so he pinned the man’s arms to his back and forcefully took him outside and left him by the wall of the lobby. The man fell backwards, down a flight of 5 steps, hit his head and died as a result. The defendant was tried and convicted for manslaughter. The defendant appealed.

The appeal was allowed and the conviction was quashed. There was no evidence to indicate that the defendant had used excessive force.

“They ought not to convict him 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, he was not to be convicted even if his belief was unreasonable.”

The test to decide whether reasonable force was used does have an objective element to it, in that, the force that is used must be no more than necessary or as per article 2 of the European Convention of Human Rights (what is deemed necessary or otherwise is objective).

In R v Owino (1995) the defendant a senior registrar in microbiology (this is important to establish that the defendant was not suffering from some form of diminished capacity), was charged on 5 counts of occasioning actual bodily harm:-

  1. Fracturing his wife’s wrist

  2. Giving her a black eye

  3. Hitting her on the head causing possible damage to her eardrum

  4. Throwing her out of the flat and injuring her right thumb

  5. Lifting her up and putting her out of the house.

The defense of self-defense was raised with regards to counts 3 and 4.

It was held that while the defendant is allowed to use as much force as he reasonably believed was required (subjective), even though that force may seem or appear to be excessive to others but what constitutes force that he reasonably believed was required is for a jury to decide (objective) and it depends very much on the facts and the evidence that is available.

In Attorney-General’s Reference (No 2 of 1983), for example, the defendant a shop owner made up to ten petrol bombs after his shop was damaged and looted during the Toxteth riots in case he became a victim of another attack.

He was subsequently charged under section 4 (1) of the Explosive Substances Act 1883 which reads as follows:-

“Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be guilty of an offence.”

He raised the defense of self defense and was acquitted by a jury. The attorney general referred the matter to the Court of Appeal on a point of law as to whether the defense of self-defense could be raised when the act of the defendant was in anticipation of an attack.

It was held that the defense could be raised with regards to possession (possession here means having under one’s control items used to defend oneself for example petrol bombs, pepper spray, stun guns etc) as long as possession of the items are given up once the danger of the attack is no longer imminent.

Copyright © 2018 by Dyarne Ward

Crime CXVI – Self Defense VI

A defendant is not entitled to rely on self-defense when there is a mistake of facts induced by voluntary intoxication. In R v O’Grady (1987) the appellant and the victim were friends and they had spent the day drinking. Between them they had consumed eight flagons of cider after which they retired to the appellant’s home.

According to the appellant he was woken up by the victim and the appellant in self-defense picked up some broken glass and started hitting the victim over the head. Once the fight had subsisted, they patched things up and he cooked both his friends a meal and the three of them then went to bed.

The defendant and the other friend woke up the next morning to find the victim dead in bed, he had died as a result of blood loss and further investigation revealed that the victim had over 20 injuries on his face in addition to severe bruises on his head, brain, neck, and chest, and a broken rib. The blows were delivered by a sharp and blunt object.

During the trial (first instance) the judge directed the jury to the effect that the defendant or anyone else for the matter is entitled to defend himself or herself against an imminent threat/attack – “If he made such a mistake in drink he would nevertheless be entitled to defend himself even though he mistakenly believed that he was under an attack”.

However, the defensive measures that the defendant had taken went beyond what was reasonable and his ability to distinguish between what was reasonable and what was not was impaired by the drink and because the measures that he had taken went beyond what was reasonable, the defense of self-defense was not available to him. The jury convicted for manslaughter and the defendant appealed.

The appeal was dismissed, and the conviction was upheld. A defendant is not entitled to rely on self defense when there is a mistake of facts induced by voluntary intoxication.

“There were two public interests to be considered. On the one hand the defendant is entitled to take the steps or measures necessary to protect himself and on the other hand an innocent victim should be protected from the drunken mistake of another”. A defendant cannot rely on the defense of self-defense when death or injury to another results from a mistake caused by his own intoxication.

Copyright © 2018 by Dyarne Ward

Crime CXV – Self Defense V

In Beckford v R (1988) the police received a phone call from someone claiming to be the victim’s sister stating that the victim was armed with a gun and was holding his mother hostage. The police in response sent an armed unit to investigate and as the police officers entered the house, the defendant saw someone running out the back door.

The defendant followed, and the victim turned around holding what appeared to be a gun and pointed it at him. The defendant retaliated by opening fire and the victim was killed. As it turned out the victim was not holding a gun and no gun was ever found. The defendant was charged with murder.

At the trial, the judge directed the jury that the defendant in instances of self-defense is only entitled to use reasonable force as opposed to excessive force and if the force that is used is excessive then the defendant can be convicted for murder. The jury found that the force that was used was excessive and accordingly convicted the defendant for murder.

The defendant appealed. The appeal was allowed and the conviction was quashed, and it was decided that the jury were misdirected. The defendant in cases of self-defense is entitled to use as much force as he or she honestly believes is appropriate in the given circumstances. In this particular instance because the defendant honestly believed that the victim was holding a gun he was deemed to be acting in self-defense when he opened fire and therefore adjudged to be not guilty.

Copyright © 2018 by Dyarne Ward