Essay
Self Defence Evaluation Plan
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An in-depth evaluation of the law on self defence. The plan provides a balanced argument and is of an A* standard.
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Self-DefenceIntroduction
Under the common law, a person may use reasonable force either to defend himself
or another from attack, or to protect property.
Additionally, under s3 Criminal Law Act 1967, a person may use reasonable force to
prevent crime or assist the arrest of offenders.
Degree of Force
In order to understand and interpret the law on self-defence, it is important to
consider its moral basis. There are two main theories as to why the criminal law
should provide a defence to those who use force in order to protect themselves or
another from an attack.
The consequentialist theory argues simply that where force is used in self-defence,
this produces better consequences then where it is not. When faced with the
alternatives of either the innocent person being attacked or the aggressor being
repelled with force, the latter is the option which produces the greater good. The
difficulty with this approach is that it could raise issues of blameworthiness where
the person being attacked has behaved badly too.
In accordance with this, the forfeiture theory states that by posing a threat to
someone, the victim has forfeited his or her right to not have violence used against
themselves. Suzanne Uniake explains that a person's right to freedom from violence
is conditional upon that person not posing a threat to other people. When posing a
threat, the person does not have those rights anymore. This theory interlinks human
rights issues with the law on self-defence, thus making it complex and an even
harder task for judges to judicate. Furthermore, this theory is contradicted by cases
such as R v Rashford, which held that self-defence could still be available to the
initial aggressor. If the forfeiture theory were solid, an initial aggressor would have
given up his right to not have violence used against himself when posing the initial
threat and therefore should not be allowed to use the defence. Evidently there are
issues that go deeper than the surface meaning of the defence; its underpinning
theories are also problematic which does suggest a need for reform.
Necessary
An important issue of self-defence is determining whether the force used was
necessary.
The case of Hussain and Another, where the defendants attacked home invaders,
demonstrates that the defence cannot be used if the danger to the defendant from
the original attack is over.
Following on from this, in R v Bird it was debated whether a victim has to retreat
before using force.
The court concluded that there is no duty to retreat.
Using the forfeiture theory, this seems fair because as previously stated, the victim
has forfeited their right not to have violence used against themselves.
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