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Essay general defence evaluation essay
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ocr law evaluation essays for self-defence and consent including A01 and A03
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Criminal law evaluations- general defencesSelf defence
Plan-
- Ao1
- Too generous- mistaken belief unreasonable
- Pre-emptive strike- good
- Morally right that a person can defend themselves
Self-defence is a common law defence where the use of force becomes lawful.
It must be proven that the defendant thought that it was necessary to use force which is
judged by the circumstances that the defendant believed to exist which is subjective (Dewar
v DPP).
This can be a mistaken belief as the defendant is judged on the facts he genuinely believed
there to be, no matter if it was reasonable or not (Williams). However, the mistaken belief
cannot be due to voluntary intoxication (O’Grady).
The degree of force used must be reasonable in the circumstances as the defendant
genuinely believes them to be in defence of self, another or property which is judged
objectively. The defendant doesn’t have a duty to retreat (Bird) and pre-emptive strike is
allowed (Beckford)
Under the crime and courts act 2013, there is a wider defence to householders where an
intruder enters their property. The act states that in a householder case the degree of force
will not be regarded as reasonable only where it is ‘grossly disproportionate’. The force
must be used by the defendant while in or partly in a building, d must not be a trespasser
and d must’ve believed v to be a trespasser.
It can be argued that the defence is too generous on the defendant as it is available even
where the mistaken belief is unreasonable and there is a need to protect the innocent
victim whom the defendant assaulted due to mistaken belief. On the other hand, this can
seem good because if the defence was not allowed where the defendant believed however
unreasonably that s/he was about to be attacked, then the defendant is at risk of being
imprisoned when s/he was not really at fault.
The rule on pre-emptive strike seems sensible as the law appears to be clear that the
defendant can act to prevent force and it is not necessary for an attack to have started as it
seems ridiculous that people would have to wait to be stabbed or shot before being allowed
to defend themselves. In AG Ref 2 of 1983 it was held that someone who fears an attack can
make preparations to defend him/herself.
The law on self-defence can seem good as it can be said to be morally right that a person
should be able to defend him/herself and/or his or her property. This should apply whether
the person who uses force is a householder or acting outside of a house. However, limits
have be set on what force can be used to prevent people from taking the law into their own
hands. If the limits are exceeded, then self-defence cannot be used and the person who
uses force will be at fault. However, the level of fault can be taken into account by the judge
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