44 Questions
What is the primary purpose of the public/private defence in the Criminal Justice and Immigration Act 2008?
To allow accused a complete defence to use force to defend themselves or another person from an unjustified attack
What is the burden of proof for the prosecution in relation to the public/private defence?
Beyond a reasonable doubt
What is a requirement for the public/private defence to apply?
The victim must have posed a threat
What happens if the defendant fails to raise some evidence of self-defence?
The defendant is not allowed to rely on the public/private defence
What is the core of the public/private defence composed of?
A 2-part test
What is an exception to the public/private defence?
The defendant is insane and delusional
What is required for the householder defendant's use of force to be considered reasonable?
The force used must not be grossly disproportionate.
What is the key principle underlying the defence of necessity?
The act is necessary to prevent a greater evil.
In R v Ray, why did the court hold that the defendant's use of force was not reasonable?
The defendant used excessive force against the trespasser.
What is required for the defence of necessity to be established?
The act must be necessary to avoid an imminent and irreparable evil.
In what circumstances is the defence of necessity most likely to be available?
When the defendant is faced with an unexpected and exceptional situation.
What is a key difference between the defences of necessity and duress?
Duress by circumstance is not available for murder, but necessity is.
What is the primary consideration when assessing the amount of force used in self-defense?
The amount of force necessary to repel the attack
In what circumstances can a defendant be said to have used excessive force in self-defense?
When the force used is not necessary to repel the attack
What is the requirement for the defendant's belief in the necessity of force in self-defense?
The defendant must have an honest belief, regardless of whether it is reasonable
What is the significance of the case R v Keane in the context of self-defense?
It established that self-defense is available to the original aggressor, but only when the victim's violence is out of proportion
Can a defendant use 'pre-emptive strikes' in self-defense?
Yes, as long as they believe the attack is imminent
What is the significance of the case R v Field in the context of self-defense?
It established that there is no duty to retreat, even when the defendant knows that staying at a certain location is likely to result in an attack
What is the test for determining whether the amount of force used in self-defense is reasonable?
A mixed test, based on the defendant's subjective belief, but assessed objectively
What is the significance of the case R v Martin in the context of self-defense?
It established that there is a margin of appreciation in assessing the reasonableness of the force used
What is the relationship between the amount of force used and the harm caused in self-defense?
The amount of force used must be reasonable, but the harm caused is not a consideration
What is the significance of the case R v Gladstone Williams in the context of self-defense?
It established that the necessity element must be based on an honest belief, but not reasonable grounds
Under the public/private defence, the burden of proving the defendant did not act in self-defence of another rests with the defendant.
False
The use of force in public/private defence must be proportional to the harm threatened.
True
Prior fault can be an exception to the public/private defence.
True
The public/private defence can apply to an offence committed by the defendant without force.
False
The defendant must believe that the force was immediately required in order to protect their public or private interests.
True
In public/private defence, the core elements may be applied differently where the defendant is a householder or intoxicated.
True
In self-defense, there is a general duty to retreat.
False
A defendant can use 'pre-emptive strikes' in self-defense even if there is no immediate threat.
False
The reasonableness of the amount of force used in self-defense is determined solely by the defendant's subjective belief.
False
If a defendant is unaware of a justification for using force, they can still rely on the defense of self-defense.
False
The defense of self-defense is only available if the defendant has a reasonable belief in the necessity of using force.
False
The amount of force used in self-defense must be proportionate to the harm caused.
False
A defendant can only use force in self-defense if they have exhausted all other options, including retreating.
False
The defense of self-defense is only available if the defendant has actually been attacked.
False
The jury determines the reasonableness of the amount of force used in self-defense solely based on the defendant's subjective belief.
False
A defendant can use any amount of force in self-defense as long as they believe it is necessary.
False
The court will always consider the degree of force used by the defendant as reasonable if it is necessary for self-defence.
False
In the case of R v Ray, the defendant was acquitted of murder due to his successful defence of public/private defence.
False
The defence of necessity can be used to justify murder.
True
The public/private defence is only available to householders.
False
The court will consider the defendant's belief in the necessity of force when assessing the reasonableness of the force used.
True
The defence of necessity is only available in cases where the harm caused is greater than the harm avoided.
False
Study Notes
General Defences Part 2: Public and Private Defence
- Public/private defence justifies D's conduct in defence of certain public or private interests
- Private defence (common law):
- To defend yourself (self-defence)
- To defend others
- To defend property
- Public defence (Criminal Law Act 1967, s3):
- To prevent crime
- To effect or assist lawful arrest
- Private defence (common law):
- Allows accused a complete defence to use force to defend themselves or another person from an unjustified attack
Elements of Public/Private Defence
- The V must pose a threat
- The threat must be unjustified
- The use of force must be reasonable
- The amount of force used must be reasonable
- The D must be acting in order to defend themselves or property or another
- Exclusions: the defence will not apply to an offence committed by D without force, and will not apply in certain circumstances of prior fault
- Trigger: D must have believed (subjective) the force was immediately required in order to protect her public/private interests
- Response: the amount of force used by D must have been reasonable (objective) on the facts as believed them to be
- Exceptions: the core elements of the defence may be applied differently where D is a householder, is intoxicated, is insane, or delusional
Special Categories of D - Householder Defendants
- Situations where non-trespassers use force against trespassers
- R v Cheesman: D must believe V to be a trespasser
- R v Williams: V must be on the property when force is used
- What is reasonable force for householder defendants?
- Criminal Justice and Immigration Act s76: not to be regarded as reasonable if it was ‘grossly disproportionate’
- R v Ray: D was at home with X, V and X had a volatile and violent relationship, and V was unhappy about X's new relationship with D
Necessity
- Necessity is a vague and poorly defined defence
- It seems to operate on the balance of evils, permitting D's criminal conduct where it is ‘less evil’ than the evil that was averted
- F v West Berkshire Authority: sterilisation out of necessity
- Necessity of murder - duress by circumstance is not available to murder, so necessity is the next best option available for the D to avoid liability
- R v Dudley and Stephens
- RE A (Children)(conjoined twins surgical separation): declaration granted
- Brooke LJ based his decision on necessity out of 3 requirements for defence:
- The act is needed to avoid inevitable and irreparable evil
- No more should be done than is reasonably necessary for the purpose to be achieved
- The evil must not be disproportionate to the evil avoided
Test your knowledge of criminal law defences, including public and private defence, justified conduct, and prevention of crime. Learn about the Criminal Justice and Immigration Act 2008 and how it affects defence laws.
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