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lindagray

Self-defence in English law

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Self-defence is a legal doctrine which says that a person may use reasonable force in the defence of one's self or another. This defence arises both from common law and the Criminal Law Act 1967. Self-defence is a justification rather than an excuse, saying that a person's actions were not a crime at all.

Common law (self defence)
Self-defence in English law is a complete defence to all non-sexual offences involving the unlawful use of force (i.e. anything from battery to murder). In other words, it results in a charge if a death occurs because minimal force was not used. Generally speaking, the rationale is that the defendant is not guilty of the offence if murder doesn't occur.

Because the defence results in a complete acquittal, the courts have interpreted the defence in a restrictive way so as to avoid acquitting too easily. For example, the courts will not usually acquit the defendant just because he thought the force used was reasonable – whether or not the force used was reasonable will be objectively assessed by the jury and not simply according to what the defendant thought at the time.

“    A defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and his property. … It must be reasonable.    ”
— Beckford v The Queen [1988] AC 130
Lord Morris in Palmer v R, stated the following about someone confronted by an intruder or defending himself against attack:

“    If there has been an attack so that defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary that would be the most potent evidence that only reasonable defensive action had been taken…"

Reasonable force
Opinions differ as to what constitutes "reasonable force" but, in all cases, the defendant does not have the right to determine this because they would always maintain that they had acted reasonably and thus would never be guilty. The jury, as ordinary members of the community, must decide the amount of force reasonable in the circumstances of the case. It is relevant that the defendant was under pressure from imminent attack and may not have had time to make entirely rational decisions, so the test must balance the objective standard of a reasonable person by attributing some of the subjective knowledge of the defendant, including what he had believed about the circumstances, even if they were mistaken. However, even allowing for mistakes made in a crisis, the amount of force must be proportionate and reasonable given the value of the interests being protected and the harm likely to be caused by use of force. The classic test comes from the Australian case of Palmer v The Queen, on appeal to the Privy Council in 1971:

“    The defence of self-defence is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. … Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. … It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have [to] avert the danger by some instant reaction. If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may no longer be any link with a necessity of defence… If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken.    ”
— Palmer v The Queen [1971] A.C. 814, 832

In R v Lindsay, the defendant, who picked up a sword in self-defence when attacked in his home by three masked intruders armed with loaded handguns, killed one of them by slashing him repeatedly. The prosecution case was that, although he had initially acted in self-defence, he had then lost his self-control and demonstrated a clear intent to kill the armed intruder. The Court of Appeal confirmed an eight-year term of imprisonment. It would not be expected that an ordinary householder who "went too far" when defending against armed intruders would receive such a long sentence.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 inserted a new section 76(6A) into the Criminal Justice and Immigration Act 2008 to clarify that there is no duty to retreat, although an opportunity to retreat may still be taken into account. In April 2013, the Crime and Courts Act 2013 further amended section 76. This amended the law to allow homeowners to use disproportionate force, up to but not including grossly disproportionate. This was further clarified by the High Court in January 2016.  Section 76 also clarified that the use of reasonable force may still be acceptable even if it was based on an honestly held belief, even if it was mistaken.

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