not prosecuted, a decision supported by the High Court in view of the Crime and Courts Act
2013 treating burglar cases as special.
SELF DEFENCE: MODEL ANSWER
The full defence of self defence has been codified by S.76 of the Criminal Justice and
Immigration Act 2008.
There is a private defence under common law where the defendant uses force to defend
himself, defend another, or defend property. There is also a public defence under the
Criminal Justice Act 1967 where the defendant uses force to prevent a crime or make an
arrest.
Here [eg. D used force to defend himself/another/property/prevent a crime when
he………………………].
Firstly, the court will consider whether there was a necessary use of force.
If the threat was imminent, then force may have been necessary, set out in Hussain.
Here [eg. the threat to D was imminent because V was about to attack him].
A pre-emptive strike by D may be reasonable, as in Beckford.
IF RELEVANT: Here [eg. there was a pre-emptive strike by D when he punched V who ran
towards him angrily].
It is not always necessary to retreat, as in Bird.
IF RELEVANT: Here [eg. D did not retreat and it was reasonable not to because V had him in
a headlock].
A genuine mistake as to the threat is acceptable, as in Williams.
IF RELEVANT: Here [eg. D was mistaken as to the threat, but it was a genuine mistake
because he thought that V was part of the violent gang that were chasing after him].
It will not be held necessary to use force if the defendant is the aggressor, and the victim’s
actions are not threatening, as in Keane.
IF RELEVANT: Here [eg. D was already in a heightened state of aggression because he had
been fighting with X, it was not necessary to use force on V who was trying to calm the
situation down.
To conclude, it was necessary to use force.
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, Secondly, as in Hussain and in Martin, the court will consider whether the degree of force
was reasonable, meaning proportionate when compared to the threat, set out in the
Criminal Justice and Immigration Act 2008.
In burglary cases, the Crime and Courts Act 2013 states that the degree of force will be
reasonable unless it is ‘GROSSLY disproportionate’ to the threat, set out in Collins.
Here [eg. This is not a burglary case so the ‘grossly disproportionate’ test does not apply. D’s
degree of force when punching V who was armed with a knife was reasonable, and not
disproportionate compared to the very serious threat].
To conclude [the force used was necessary].
To conclude overall, the defence of self defence may apply, so D may be found not guilty.
SELF DEFENCE: EXAM QUESTIONS
Discuss the possible use of the defence of self defence in respect of the non fatal offences
committed in the following scenarios:
1.Beck and his gang believed that Aakil had ‘disrespected’ them. Just as Aakil
entered a cinema, Beck sent him a text message which read “We’ll kill you
when you come out”. Aakil worried for 20 minutes, then left the cinema and
ran down the street. He noticed a man running quickly behind him, and Aakil
turned and punched the man on the jaw, knocking him out. In fact, the man
was merely running for a bus.
Necessary to use force – imminent?
Yes – according to D – “man running behind” / “We’ll kill you”
Pre-emptive – punched man before he “attacked” – reasonable? Yes
– trying to defend himself from someone who said they will kill him
Retreat? Didn’t retreat – but didn’t have to – reasonable for him to
attack
Mistake? Yes – genuine – man running for bus
Reasonable force?
Yes – reasonable to punch someone you think is going to kill you
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