Does the law of self defence provide for an appropriate balance between the rights of the

person using defence and the person he is defending against?

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Introduction would cover what the actual law of self defence concerns.
Section 3 Criminal Law Act 1967: a person may use such force as if
reasonable in the circumstances in the prevention of crime
Two requirements: force must have been necessary and it must have been
reasonable (this concept is rather flexible and courts use it to their advantage)
Article 2: force must be ABSOLUTELY NECESSARY and STRICT
PROPORTIONALITY
How it is justified and covered in English law.
o The draft Criminal code 6 scenarios where self defence could be used
Prevent/ terminate a crime/ assist in lawful arrest of a person doing a criminal
act
To prevent/ terminate a breach of the peace
Protection from unlawful force/ personal harm
Terminate unlawful arrest of himself
Protect property from appropriation/ destruction/ damage
Prevent/ terminate trespass to the person
o article 2

The main issue is the right to life and the right to physical safety; is a person at liberty to
defend him or her from threats to those rights?
In scenario, what about the aggressors right to life?
Law has tried to balance it by the two requirements
Article 2 makes sure that force was absolutely necessary
o Necessity: imminence, duty to avoid conflict (now not a duty but we do have the
liberty to make pre emptive strike)

o Proportionality rights of the attacker

o What about women in abusive partnerships and they cant leave?

Given the handful of cases annually in which insanity is raised as a

defence, one might be forgiven for thinking that it is not worth a great
deal of discussion. This would be a serious error. [T]he recognition of
an insanity defence is a mark of the maturity and humanity of the
criminal law. A. Ashworth Reforming the insanity defence [2003]
Crim LR 139.
How mature and humane is our insanity defence?

What is the insanity defence?

Age of criminal responsibility, unfitness to stand trial, insanity
If fit to stand trial then MENTAL DISORDER DEFENCE
Mental Health Act 1983

Prior to Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, if successful claim of
insanity then get locked away, now has changed to more lenient orders shows has matured
since time
Individual automatism v policies of social welfare? humane? Well D proves it and
sentence will be in favour of social welfare rather than in the interest of the D
McNaghten Rules: at time of the act, defect of reason from disease of the mind, not aware of
nature and quality of what he is doing, or if did know what doing then did not know it was
wrong
o Is this approach too narrow?
Attribute conduct to mental state
Is it humane word insanity not every day meaning, legal meaning encompasses many more
illness or disease for example diabetes

Discuss the suggestion that if duress by threats, duress of

circumstances and self-defence can be described as categories of
necessity (per Robert Walker LJ in Re A (Conjoined Twins: Surgical
Operation) [2001] Fam 147, 253), and in the light of the different
approaches to the criminal law issues in that case developed in the
three judgments in the Court of Appeal, it would be perverse to
maintain the present distinctions which in some significant respects
apply different requirements for self-defence, duress and necessity.
Duress by threats and circumstances
- D has to act out of fear or serious injury has to be physical harm or harm to the persons,
false imprisonment will suffice
- Case: Taylor v Hudson
- Case: R v Shayler:

Should distinguish because duress by threat is seen as an excusatory defence whereas duress
by circumstances seems to be more justificatory
Second reason for distinguishing a full defence of necessity may be too broad; it would be a
lot broader than present defence of necessity by circumstance- it would be a defence to all
crimes whereas duress by circumstances is not applicable to murder

Duress by threat
Abbott v The Queen
Factors: deterrence, moral blameworthiness
Case: Howe
Case: R v Ruzic LeBel J choosing between being harmed or harming
Case: DPP v Lynch
Parameters of the defence:
o Threat of death or serious harm
o Multiple threats
Case: Valderrama- Vega
o Stipulated crime
o Belief in threat; steadfastness
Case: R v Graham
R v Bowen
Threat has to be operative
o Case: DPP c Davis; DPP v Pittaway

Duress of circumstance case: Martin- drive son to work because of wife

Agree with categorising them as necessity

Just because put them in a category does not mean that you can not separate them further
It just allows for easier use in courts
o Case: Pommell
o In bed with gun

Necessity

Self defence: see above

Necessity is where D thinks she HAD to do something, not because she was threatened
this defence of necessity was not accepted in English Law before
Case: Buckoke v Greater London Council
Fire engine

If the essential facts of Dudley and Stephens came before the courts for
the first time today what would and should be the decision?
Facts: A man who, in order to escape death from hunger, kills another for the purpose of eating his
flesh, is guilty of murder; although at the time of the act he is in such circumstances that he believes
and has reasonable ground for believing that it affords the only chance of preserving his life.
At the trial of an indictment for murder it appeared, upon a special verdict, that the prisoners D. and
S., seamen, and the deceased, a boy between seventeen and eighteen, were cast away in a storm on
the high seas, and compelled to put into an open boat; that the boat was drifting on the ocean, and
was probably more than 1000 miles from land; that on the eighteenth day, when they had been seven
days without food and five without water, D. proposed to S. that lots should be cast who should be
put to death to save the rest, and that they afterwards thought it would be better to kill the boy that
their lives should be saved; that on the twentieth day D., with the assent of S., killed the boy, and
both D. and S. fed on his flesh for four days; that at the time of the act there was no sail in sight nor
any reasonable prospect of relief; that under these circumstances there appeared to the prisoners
every probability that unless they then or very soon fed upon the boy, or one of themselves, they
would die of starvation:
Held, that upon these facts, there was no proof of any such necessity as could justify the prisoners in
killing the boy, and that they were guilty of murder.

Case concerns necessity

Case demonstrates that back then necessity was not recognised as a defence
Requirements for necessity:
o Extraneous cause
necessary to avoid an irreparable evil
no more should be done than is reasonably necessary for the purpose to be achieved
evil inflicted must not be disproportionate

Do we need specific rules on intoxication?

If a person deliberately drinks himself into an intoxicated state then there is no defence
Case: AG for Northern Ireland v Gallagher
Voluntary v Involuntary intoxication
Cases: Allen 1998 D did not know concentration of wine, did not matter
Hardie: Valium
Kingston: drugs and sleeping boy
Lipman: LCD snake, actually strangling girlfriend

Specific and basic intent

Case: Majewski only crimes of specific intent can intoxication be a defence
Case: R v Caldwell hotel, fire
Case: Heard drinking heavily and could not remember sexual assault on police
Its a partial defence and can work to REDUCE the sentence
Drunken mistake
Case: OGrady
2 drunks- one woke up to find drunk friend hitting him, retaliated by a few blows, then went back to
sleep, woke up and found friend dead; could not rely on drunkenness
Dutch courage