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Self-defence Criminal Law Notes
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Self-defence Criminal Law Second Year Notes
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CRIMINAL LAW - TOPIC SIX:fTOPIC 6 – DEFENCES
PART ONE: SELF-DEFENCE
CRIMINAL LAW – DEFENCES
• A D may commit the AR (Actus reus) of an offence with the requisite Mens Rea (MR) and yet
escape liability because he has a defence.
• A defence could be viewed as a denial that D committed the actus reus or that D possessed
the necessary mens rea. Self-defence could be seen as a denial of actus reus. By defending
yourself you did not unlawfully harm another, your actions were in fact lawful.
Defences have been broadly classified into 2 groups (although these classifications are not
water tight)
1. Justification – Justification speaks to the rightness of the act. It is accepted that the
definition of the offence is satisfied but it is argued that the act was not ‘wrong’ – the
D has done what anyone in society would do and what is permitted by the law. Should
justifications be more objective in nature?
2. Excuse – accept that the act was wrong but considers that the D should not be blamed
for his wrongful act. A person may be excused because of something specific relating
to the person – mental abnormality for example; or because of the circumstances the
D found himself in – duress for example. Should excuses be wholly subjective?
Defences have also been categorised on the basis of their theoretical foundations under the
following headings (again has been subject to criticism and indeed there is disagreement as
to what each category actually includes):
• The choice theory – A D should only be punished for what he chose to do.
Supporters of this view would prefer subjective forms of mens rea. This theory
could also be called the responsibility principle or the voluntarism principle.
• The capacity theory – a person should not be blamed for what he has done if he
could not help doing it. In the case of insanity, D because of his mental illness, was
not capable of acting otherwise
• The character theory – focuses on the idea that D’s criminal act reflects the bad
character of the D. A defence exists if the criminal act committed does not reflect
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, D’ s bad character – for example D, a normally law abiding person hurts another
because of duress
Many commentators argue that it is futile to try and discover an overarching theory for the
various defences recognised in criminal law and that it is far better to consider each defence
in its own right
Limitations to defences
• For example Loss of Control and Diminished Responsibility are only partial defences to
murder, reducing murder to manslaughter
• Self-defence and Automatism are complete defences
• Insanity has a special verdict – not-guilty by reason of insanity which may result in a number
of possible outcomes where the sentence for the crime is not fixed by law such as a hospital
order, a supervision order or an absolute discharge. If the crime has a sentence which is fixed
by law (i.e. Murder) the Court must make a hospital order.
Self Defence: Private Defence and the Prevention of
Crime
Self defence = complete defence
Potential Moral Basis:
• Consequentialist
• Forfeiture- by posing a threat to V, D has forfeited his right not to have violence put on him
• Autonomy- protect themselves against unjustified attack
Basis of the defence – Common Law and Statutory Law
Common Law
Private defence (or self defence) is a common law defence:
Duffy [1967] 1 QB 63):
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, The defence can be raised where the D has used force against an unjustified attack either:
• Upon himself, or others - Williams (Gladstone) (1984) 78 Cr App R 276 or
• Upon his property- Hussey (1924) 18 Cr. App. R 160
Statutory law: Section 3 of the Criminal Law Act, 1967 governs prevention of crime.
(1) A person may use such force as is reasonable in the circumstances in the
prevention of crime, or in effecting or 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.”
• Often there is an overlap between private defence and the prevention of crime.
Both the common law and section 3 are governed by the same rules:
Cousins [1982] QB 526:
1. When an attacker has not acted unlawfully, common law defence rather than statutory
applies
2. S3 applies to attacks on another, common law only applies to attacks on self
3. S3 applies where D seeking to prevent a crime, common law aspect doesn’t cover this
The Criminal Justice and Immigration Act 2008 – section 76:
• provides ‘clarification’ of the law of self-defence. It essentially sets out in statutory
form the common law rules - relevant sections will be referred to below
• Keane [2010] EWCA Crim 2514 – section 76 did not change the law but simply stated
what the previous law had been
NOTE: You will need to refer to both common law cases and statutory provisions
Rationale of Private Defence
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