Criminal Law Essay
LA15930 Level I
In England & Wales, the defence of self-defence provides for the right of people to act in a manner that would be otherwise unlawful in order to preserve the physical integrity of themselves or others or to prevent any crime.
In this essay I will be concentrating on two aspects of the law of self-defence in England and Wales, firstly the use of force in self-defence and the prevention of crime, and secondly why the law has been criticised in relation to people who confront intruders in their homes. Both characteristics have had a lot of criticism over the past few years with more and more people arguing that they should be able to defend themselves and their property from intruders without being charged for a reasonable attempt to safeguard their own.
Doubts about the system of self defence have been discussed by a host of critics, namely by Mr Noel Sweeney in 2000 where he raised criticism of an inherent fault of English jurisprudence stating that "self-defence" is an all-or-nothing defence in that if it succeeds the result is an acquittal and if it fails there is no other verdict but murder. A major case establishing this is R v Clegg1 where D, a soldier, had fired at a stolen car being driven towards him at a checkpoint and killed a passenger. The House of Lords confirmed his conviction for murder because the trial judge had found as a question of fact that the amount of force used was unreasonable and excessive.
The most up to date Law relating to self-defence can be found in Section 3 of the Criminal Law Act 1967;
This section provides a defence to a person who is using force to prevent a crime.
Section 3 states;
'1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or in assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.
2) Subsection (1) above shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.'2
This section would therefore apply as a defence where the defendant uses necessary and reasonable force to protect oneself and others, defence of one's property, preventing crime and assisting lawful arrest. This is controlled partly by common law and partly by section 3(1) of the Criminal Law Act 1967.
However, in some cases the defendant may be able to rely on both defences, for example, if the defendant is attacked by someone and reacts aggressively or with violence, the defendant may be able to depend on either defence and claim that his use of force was an attempt to prevent further attacks being inflicted on him and would therefore fall under s.3. At common law he could argue that the defendant was acting in order to defend himself. One or both of these defences are in hand to someone who is protecting themselves from an attack to someone who is protecting someone else from harm or where someone who is protecting her own property from an intruder to someone who is protecting someone else's property from a burglar.
Despite the similarities two significant differences still remain within the two defences:3
Firstly, where the defendant is a child or is insane, therefore not acting unlawfully, s.3 does not apply, but even so common law self-defence does apply. Secondly the common law defence only applies if the defendant is acting in order to protect himself or herself and does not apply where he or she is acting in order to prevent an attack on another, but s.3 does.
Even so the key element in both defences of self defence remains the 'reasonableness of force used' which even today is somewhat perplexed and difficult to distinguish, for example it could be considered reasonable where a young lady stabbed a heavily built man who attacked her but on the other hand if the tables were turned it would be different situation. Therefore to establish whether the force applied was reasonable or excessive, the jury must consider all the circumstances of the case including the situation as the defendant believed to be in.
In assessing the reasonableness ...
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Even so the key element in both defences of self defence remains the 'reasonableness of force used' which even today is somewhat perplexed and difficult to distinguish, for example it could be considered reasonable where a young lady stabbed a heavily built man who attacked her but on the other hand if the tables were turned it would be different situation. Therefore to establish whether the force applied was reasonable or excessive, the jury must consider all the circumstances of the case including the situation as the defendant believed to be in.
In assessing the reasonableness of the force used, the crown prosecution service has stated that the prosecutor should ask two questions:4
. was the use of force justified in the circumstances, i.e. was there a need for any force at all? and
2. was the force used excessive in the circumstances?
The courts have indicated that both questions are to be answered on the basis of the facts as the accused honestly believed them to be (R v Williams)5
To that extent it can be a subjective test. There is, however, an objective part to the rule. The jury must then go on to ask themselves whether, on the basis of the facts as the accused believed them to be, a rational person would regard the force used as reasonable or excessive.
This was affirmed in R v Martin6, where it was held that in deciding whether a defendant had used reasonable force in self-defence it was not appropriate to take into account the fact that the defendant was suffering from a psychiatric condition at the appropriate time, except in exceptional circumstances, which would make such evidence especially
probative.
In assessing whether the force used was reasonable it is important to consider the words of Lord Morris in Palmer v R7
"If there has been an attack so that self-defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken...".
The main point the jury must keep in mind is that the force used should be considered reasonable by a sound minded person, not whether the defendant thought the force to be reasonable.8 The fact that an act was considered necessary does not mean that such action was reasonable.
The Law applied to people who confront intruders in the home is still rather indefinite and disputed by many critics and the public in general. In 2003 during the Christmas period, thousands of Radio 4's Today listeners called for legislation authorising them to protect their homes by any means necessary, the proposal was immediately denounced as a "ludicrous, brutal, unworkable, blood-stained piece of legislation".9
The old rule at common law however was that a home owner may kill a burglar or trespasser and get away with it using the defence of self defence as illustrated in 1905 case of R v Annie Davis10. Lord Hewart's statement in R v Hussey11 was another milestone in the development of the Law relating to home owners confronting intruders in the their homes when he approved the statement 'in defence of mans house, the owner or his family may kill a trespasser who would forcibly dispossess him of it, in the same manner as he might, by, kill in self-defence a man who attacks him personally.' It is therefore clear that the law gave the individual the same rights when protecting his home as it did to someone protecting themselves or another person.
Although, even today the law does the same,, the current rule of self-defence is 'reasonable force' as demonstrated in R v Palmer12, meaning the defendant does not have the lawful right to kill an intruder without reason, even so it would be sensible to say that a defence is readily available for a fist to fist fight rather than the somewhat barbaric definition of 'kill within reason' or 'unless it was reasonable but even so the defendant may still rely on the defence of self-defence arguing that it was a mistake. For, example if an intruder is armed with a deadly weapon, such as a gun and is then accidentally shot.
Once again, establishing whether or not the defendants reaction was reasonable is bewildering, namely following the case of Martin13 but the issue of whether or not the defendant is right to strike first is clear as defined in A-G Reference (No.2 of 1983)14. Furthermore the case of R v Bird15 has affirmed that there is no duty to retreat, but the final decision of 'reasonable force' is left down to the jury and could go in either direction.
Following the Martin case, several measures have been taken to try and clarify the law. One of these is, The Joint Public Statement from the Crown Prosecution Service and the Association of Chief Police Officers on Guidance published on the use of force by homeowners against intruders.16 This is a leaflet or it can be accessed online and is laid out in a frequently asked question-answer format explaining what the objective is and what is considered to be reasonable force and what is considers as being excessive force. However after reading the leaflet myself I still feel that it doesn't make the law any clearer to the average layman giving a vague definition of self-defence.17 Furthermore, the main objective of the statement was to make the law of self-defence clearer to the homeowner which I feel has been illustrated indistinctively, giving the homeowner a very basic idea of what he can or can't do but doesn't really provide a clear definition of the law on self-defence. On the one hand the very basic layout is a good idea as a lot of people find it difficult to understand the technical elements of the law but on the other hand it just isn't thorough enough.
The Partial Defences to Murder document published by the Law Commission is another significant mark on the development of the law of self-defence. The document contains a redrafted proposal for the defence of provocation which covers the use of excessive force in cases of self-defence. It has been stated that the Homeowner would be guilty of manslaughter which would allow the judge to have a number of available sentencing options, including life imprisonment. This would act as a half-and-half defence in that if successful, a plea of self-defence would result in complete acquittal whereas on the other hand if the new legislation is affirmed as the law, the defendant who uses excessive force against an intruder would still be punished, but on a lower scale to a cold blooded killer, like the notorious Australian criminal 'Chopper' Read. This would no doubt be considered a more equitable form of applying the law as it will the fact that the defendant was in fact trying to defend himself/herself or another. Even so the fact that he/she has committed murder would still be taken into consideration and the punishment would be a just and unprejudiced.
The third prime law reform to arise from the Martin case was the Criminal Law (Amendment) (Householder Protection) Bill 2004-2005. However the Bill was delayed and was not passed but if it had been passed it would have adapted s.3 of the Criminal Law Act 1967 by adding two further subsections after clause 1:
'(1A) Where a person uses force in the prevention of crime or in the defence of persons or property on another who is in the building or part of a building having entered as a trespasser or is attempting to enter, that person shall not be guilty of any offence in respect of the use of that force unless-
(a) The degree of force was grossly disproportionate, and
(b) This was or ought to have been apparent to the person using such force.
(1B) No prosecution shall be brought against a person subject to subsection (1A) without the leave of the Attorney General.'18
The main purpose of the Bill was to replace the 'reasonable force' rule with a less complex rule of 'grossly disproportionate' and would mean that a homeowners unreasonable reaction towards an intruder would acceptable as long as it's rational and not out of proportion. This Bill would have definitely given the homeowner a wider spread of options when applying force but still would not give them the complete freedom to do as they please, a much fairer way to deal with an accused person.
To summarise the law of self-defence is still somewhat ambiguous and with the rule of 'reasonable force' proving to be a difficult and at times prejudiced custom there is plenty of room for improvement. Although there have been several attempts to re-draft and clarify this rule there has been little progress and for now the state consider the standard of reasonable force set out in Palmer still provides sufficient guidance to the jury in deciding whether or not the defendant has used reasonable or excessive force. Although numerous attempts have been made to make the law for homeowners defending their homes more humane none of them have been successful largely due to the fact that more and more people would plead self-defence even if their actions were undoubtably irrational and highly unreasonable. Overall I feel that we are definitely heading in the right direction and with Italy passing a new bill allowing homeowners to shoot intruders without fear of prosecution the pressure is ever increasing. Even so I feel that we need to consider an approach less severe then allowing the homeowner to shoot an intruder, we have lived in Britain in harmony for centuries without the need for guns and I still feel that it is possible to improve the law on self-defence for homeowners without the need to introduce firearms freedom, furthermore the state would be obliged to allow people to purchase and keep guns in their homes without too many consequences increasing other crimes.
BIBLIOGRAPHY
Glazebrook, P.R., 2004-2005, Blackstone's Statutes on Criminal Law, 14th Edition, Oxford University Press, Hampshire
Giles, Marianne, Criminal Law in a Nutshell, 1996, Fourth Edition, Sweet & Maxwell, Bristol
Herring, Jonathan, Palgrave Macmillan Law Masters, 2005, 4th Edition, Creative Print & Design, Ebbw Vale (Wales)
Herring, Jonathan, Criminal Law Text, Cases and Materials, 2004, Oxford University Press, Hampshire
Allen, Michael J, Elliot & Woods Cases and Materials on Criminal Law, 2001, Eighth Edition, Sweet & Maxwell, Bristol
Ashworth, 'The Human Rights Act and the Substantial Criminal Law', 2000, Criminal Law Review 564
Self-Defence and the Prevention of Crime [On-Line], http://www.cps.gov.uk/legal/section13/chapter_t.html
Malcolm, Joyce Lee, Where I come from, out homes are still out castles [On-Line], http://www.telegraph.co.uk/opinion/main.jhtml?xml=/opinion/2004/10/31/do3102.xml&sSheet=/opinion/2004/10/31/ixop.html
Wikipedia The Free Encyclopedia, Self Defence, [On-Line], http://en.wikipedia.org/wiki/Self-defence
Jefferson, Michael, Joint Public Statement from the Crown Prosecution Service and the Association of Chief Police [On-Line],
http://www.cps.gov.uk/publications/prosecution/householders.html
R v Clegg 1995 1 AC 482 HL
2 Blackstone's Statutes on Criminal Law 2005-2006, 15th Edition, P.R.Glazebrook, pg 14, Oxford University Press.
3 Palgrave macmillan law masters on Criminal Law 2005, 4th Edition, Jonathan Herring, pg 364, University of London press.
4 http://www.cps.gov.uk/legal/section13/chapter_t.html#_Toc3085034
5 R v Williams (G) 78 Cr. App R 276, R v Oatbridge, 94 Cr App R 367
6 R v Martin [2001] EWCA Crim 2245
7 Palmer v R ,1971 A.C. 814
8 Op Cit no.2, pg 614
9 Joyce Lee Malcolm, Where I come from, out homes are still out castles, http://www.telegraph.co.uk/opinion/main.jhtml?xml=/opinion/2004/10/31/do3102.xml&sSheet=/opinion/2004/10/31/ixop.html (Oct 2004)
0 R v Annie Davis [1905] 69 JP 645
1 R v Hussey [1924] Cr App R 160
2 Op Cit no. 7
3 Op Cit no. 3
4 A-G Reference (no.2 of 1983) [1984] QB 456
5 R v Bird [1985] 2 All ER 513 (CA)
6 Michael Jefferson, Journal Of Criminal Law, Householders & the Use Of Force Against Intruders, 1 October 2005, Vathek Publishing 2005
7 Anyone can use reasonable force to protect themselves or others, or to carry out an arrest or to prevent crime, Joint Public Statement from the Crown Prosecution Service and the Association of Chief Police Officers (http://www.cps.gov.uk/publications/prosecution/householders.html)
8 Ibid
2329 Words LA15930 By Charandeep Singh Ubhi
