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