Public and Private Defences

A party may lawfully use force - provided that it is NOT excessive - in the defence of both public and private interests.

Initially found in common law but s3 Criminal Law Act 1967 states ..

'A person may use such force as is reasonable in all the circumstances in the prevention of crime or in assisting in the lawful arrest of offenders or suspected offenders, or of persons unlawfully at large.'

 

In Renouf [1986] D suffered an injury to his arm and his car windscreen was damaged while filling his car with petrol. He called on his wife to call the police and made chase in his car forcing them onto a grass verge. He was convicted of reckless driving and appealed. C of A held that the possible defence under s.3 - that he was trying to assist in the lawful arrest of offenders, should have been put to the jury.

s5 Criminal Damage Act 1971 provides a person with a defence if 'he destroys or damages the property of another in order to save his own property or that of someone else, provided that it is in immediate need of protection and the force used is reasonable.

See the cases of Hussey [1924] and AG's Reference (No 2 of 1983) [1984] - do you agree with them?

Subjective element

The cases of Williams (Gladstone) 1987 and Beckford [1988] confirm that it is a subjective test in that a person may use reasonable force if S/HE fears an attack or one actually occurs. This is subjective - so even if the reaction is thought to be unreasonable by the ordinary man, the matter should be put to the jury for them to decide the matter.

The belief in whether there is a need to act in self-defence is a subjective one and an honest, albeit unreasonable belief, may be enough. However, a different approach is taken if that mistaken belief due to intoxication.

In O'Grady [1987] - read the facts from the textbook - the C of A said the defence would be available to a 'sober man who mistakenly believes he is in danger of immediate death at the hands of an attacker', but not to a person whose mistake was caused by voluntary intoxication.

No need to retreat

In Julien [1969] there was a clear suggestion that D should demonstrate that he did not wish to fight and even make some physical attempt to withdraw.

While in Bird [1985] which involved a 17 year old girl being held up against a wall by an ex-boyfriend. She lunged at him with a glass in her hand which hit him in the face and caused him to lose an eye. Despite such, the Court of Appeal accepted the self-defence plea arguing that the case of Julien had placed too great an obligation on D to demonstrate that he did not wish to fight - since this is not consistent with the rule that you can use reasonable force.

Objective element

While the element of a person deciding if he fears an attack etc is subjective - the jury is required to determine IF the force used was reasonable. This element is clearly objective - since the jury are determining was 'reasonable force' used.

Scarlett [1993] involved a landlord forcibly ejecting a drunken customer who fell down steps and was killed. While the judgement seemed to imply that the test was subjective - this was clearly rejected in Owino [1996].

In that case they said if a subjective view was taken it would allow a person who was merely threatened with a punch to shoot the other and plead self-defence. 'That clearly is not, and cannot be, the Law.'

Use of reasonable force

Read pages 235-238 of the 'Criminal Law' textbook. Summarise the issues in the cases of Clegg [1995] and Martin [2000].

Discuss the self-defence scenario.