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‘The current law of self defence is not fit for purpose in modern times and needs to be reformed urgently’. Discuss the extent to which this statement is accurate. 11,02 €
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‘The current law of self defence is not fit for purpose in modern times and needs to be reformed urgently’. Discuss the extent to which this statement is accurate.
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Grado
A2 Unit G153 - Criminal Law
Institución
OCR
‘The current law of self defence is not fit for purpose in modern times and needs to be reformed urgently’. Discuss the extent to which this statement is accurate.
Essay on self defence:
The current law on self defence comes from case law and some rules are
clarified by statute. Self-defence is a full defence whereby a defendant used
reasonable and necessary force in the circumstances (as they believed them to
be to protect themselves, another or prevent crime. S43 of the Criminal Justice +
Immigration Act 2008 defines reasonable as a person acting honestly +
instinctively. S43 of the Crime and Courts Act 2013 gives a wider defence to
home owners so they can use whatever force necessary as long as its not
‘grossly disproportionate’.
Firstly, the law can be criticised as being too vague and unclear as certain terms
are undefined. For example, ‘grossly disproportionate’ from S43 CCA 2013 is
vague and could allow defendants too much power and leniency. The lack of
clarity (not entirely upholding the rule of law) could lead to home owners taking
the laws into their own hands and causing more injury to intruders than
necessary. For eg, in Collins v Secretary of State, a man was held in a headlock
for so long he was given brain damage. Critics would argue such lengths aren’t
necessary and that the law should be reformed to restrict the level of force home
owners could use. However this would be unpopular as it is a public policy
decision that the right of a homeowner to protect his house and family outweighs
the right of the lawbreaker. Furthermore, the law does prevent the use of force
where its not necessary for eg in R v Hussain where the threat of danger had
gone and the force was used in revenge the defence was denied. Therefore, in
terms of householder cases the law isn’t too easily criticised and urgent reform
isn’t really needed.
The law can be criticised in the way that if excessive force is used, the defence is
denied altogether.
This has led critics to call it an all or nothing defence esp in regards to murder as
unlike non fatals the judge cant take into consideration when sentencing is a
mandatory life sentence must be improved. Therefore, a defendant will either
get a life sentence (if excessive as deemed in R v Martin + R v Clegg) or be
completely let off which seems extreme and polar opposite. The Law Commission
in 2003 recommend a partial defence where excessive force was used in self
defence to reduce a murder charge to manslaughter. In a way this is now the
case as the defence of loss of control S54 Coroners +Justice Act 2009 is available
for when excessive force is used and a death caused. Therefore this idea of all or
nothing wasn’t really be criticised anymore and further reform is not really
needed.
Another criticism is that the characteristics of the defendant cant be considered.
This was shown in R v Martin where the fact he perceived greater danger was
irrelevant s76 14 says the defendant is to be judged on the facts as he
reasonably believed them to be as in R v Williams where mistaken belief was
allowed. However, if a condition affects how a defendant perceives a situation
arguably this should be considered. However the counter argument would be
that self defence is often used for lower level offences like battery and it would
be ‘wholly disproportionate’ to involve medical disputes in these cases as it
would add time and money to the cases. Therefore although criticism of not
considering characteristics could be made reform is unlikely.
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