The classic test comes from the 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.
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.
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.The Legal Aid, Sentencing and Punishment of Offenders Act 2012 inserted a new section 76(6A) into the Criminal Justice and Immigration Act 2008.
In R v Lindsay,[9] 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.
This amended the law to clarify that homeowners may still rely on self-defence in some cases where the force used is unreasonable, so long as it is not grossly disproportionate.
Lord Griffith said in Beckford v R: A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike.A defendant does not necessarily lose the right to claim self-defence merely because they instigated the confrontation.
In some cases, a person who kills in the course of a quarrel or crime they started might still act in self-defence if the victim disproportionately escalates the violence.
The question is whether the defendant feared that he was in immediate danger from which he had no other means of escape, and if the violence he used was no more than appeared necessary to preserve his own life or protect himself from serious injury, he would be entitled to rely on self-defence.
Lord Reading CJ said at 224: The only element of doubt in the case is whether there was anything which might have caused the applicant, in his drunken condition, to believe that he was going to be struck.This suggests that the question is whether there was any intelligible basis for the defendant’s belief.
The House of Commons Library compiled a list of people who have acted in self-defence as part of its briefing on the Criminal Law (Amendment) (Householder Protection) Bill 2005.
(2) Subsection (1) above shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.The definition of what constitutes a 'crime' was clarified under R v Jones (Margaret), R v Milling et al: HL 29 MAR 2006 which stated it covered any domestic criminal offence under the law of England and Wales.
[20][21] Thus, reasonable force can be used in the prevention of any crime or in making an arrest to: Section 76 of the Criminal Justice and Immigration Act 2008 codifies English case law on self-defence.
Physical characteristics can be relevant to reasonableness,[33] e.g. in a fist fight a man twice the size should take it easy or resist provocation.
The CPS are told not to prosecute if the accused acted reasonably in preventing crime or apprehending offenders, but a factor is whether self defence was more vigilantism and violence than preserving law and order.
In case the CPS are dubious of your claim that force was reasonable, only using your bare hands, protecting the suspect from injury and only intervening in unexpected incidents rather than laying in wait are ways to try to prevent prosecution.
CPS guidance is that violence is to be discouraged but responsible public spirited crime prevention is to be encouraged and they are to carefully balance the two.
[34] (There is a wider duty to preserve the public peace on request by the police,[35] failure without lawful excuse is indictable if able bodied).
That the thief was later proved to be a felon did not prevent a concurrence between actus reus and mens rea at the instant the shot was fired, i.e. no retrospective justification is allowed.
It is noted that the death of Jean Charles de Menezes at the Stockwell tube station, south London, on 22 July 2005 resulted from the use of a then secret shoot-to-kill policy called Operation Kratos.
English law has no general defence of superior orders, and the conduct of every police officer has to be judged on the facts as they believed them to be.
In contrast to this a soldier who is employed in aid of the civil power in Northern Ireland is under a duty, enforceable under military law, to search for criminals if so ordered by his superior officer and to risk his own life should this be necessary in preventing terrorist acts.
For the performance of this duty he is armed with a firearm, a self-loading rifle, from which a bullet, if it hits the human body, is almost certain to cause serious injury if not death.In R v Clegg Lord Lloyd of Berwick said at 497: In the case of a soldier in Northern Ireland, in the circumstances in which Private Clegg found himself, there is no scope for graduated force.
But, in any event, the Lords said that the card had no legal force because English law does not have a general defence of superior orders.
In A v Hayden, Murphy J. stated: In Australia it is no defence to the commission of a criminal act or omission that it was done in obedience to the orders of a superior or the government.
Military and civilians have a duty to obey lawful orders, and a duty to disobey unlawful orders.The Law Commission's report on Partial Defences to Murder[41] rejects the notion of creating a mitigatory defence to cover the use of excessive force in self-defence, but accepts that the "all or nothing" effect can produce unsatisfactory results in murder cases.
For example, a battered woman or abused child using excessive force because they are physically at a disadvantage and not under imminent attack, would be denied a defence.
This reflects the present view of psychiatrists that most people act in violent situations with a combination of fear and anger in their minds, and to separate the two emotions is not legally constructive.