Self-defence

6 Key excerpts on "Self-defence"

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  eBook - ePub

  Criminal Responsibility and Partial Excuses

  • George Mousourakis(Author)
  • 2018(Publication Date)
  • Routledge

    (Publisher)

  5 An offence cannot be committed unless all the explicit and implicit conditions are met. The licence approach, on the other hand, treats a justification such as Self-defence as providing a licence or liberty to commit a criminal offence. From this point of view, the person who kills another in Self-defence commits an offence, but the commission of that offence is considered, in the circumstances, permissible.

  A justification-based defence may arise where the accused have acted in order to prevent the commission of an offence, to ward off an unlawful attack against himself or another, to effect a lawful arrest or to protect his or another’s property. In English law, the Criminal Law Act 1967 regulates these defences, previously governed by common law rules.6 Section 3 of the Act provides

  (1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.

  (2) Subsection (1) above shall replace the rules of common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.

  It is recognised that, as regards Self-defence, defence of others and defence of property, the common law defence survives but only to the extent that it is not incompatible with the statutory defence7 Under both the common law and s. 3, for such a defence to succeed it is required that the force used was reasonable in the circumstances as they existed or as the accused believed them to be. It is accepted that a person will be entitled to the defence where he honestly believed that he was under attack, irrespective of whether such a belief was reasonable or not.8 If the accused honestly believed that he was being attacked, or about to be attacked, even though that was not in fact the case, the jury will be invited to consider whether his use of force was proportionate to the threat which the accused believed to be created by the attack under which he believed himself to be.9 If, taking into account all the circumstances of the case, the jury concludes that the accused used too much force, his plea of Self-defence will fail. The same will be the case if the accused did not know or believe that circumstances existed which would justify his use of force, irrespective of whether those circumstances actually existed or not.10 When a justification-based defence is raised the burden is on the prosecution to disprove that defence beyond reasonable doubt.11

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  eBook - ePub

  Beginning Criminal Law

  • Claudia Carr, Maureen Johnson(Authors)
  • 2013(Publication Date)
  • Routledge

    (Publisher)

  mens rea , but maintains that anybody would have acted as he did in those particular circumstances, and therefore he should be excused any punishment for his offence. These defences admit that a crime has been committed, and therefore anyone who has acted with the accused but does not have a defence can still be found guilty. These defences are ususally subject to the ‘reasonable man’ test, to ensure that other people would have acted in the same way in the same circumstances. Duress is an excusatory defence.

  Self Defence

  Self defence is a general defence, which means it can be used as a defence for any offence against property, or the person, from murder to common assault. It can be pleaded if a person has used reasonable force to protect himself, or another person from attack, or property from damage or distruction. Self defence is a common law defence, but there has been an attempt to clarify it under s 76 of the Criminal Justice and Immigration Act 2008.

  Defence of the person

  Common law cases have established several rules that are true for someone who seeks to use self defence. The case of Bird [1985] 1 WLR 816 states that there is no ‘duty to retreat’ when under attack by another. Historically, the defendant in a case would have to show they tried not to fight by trying to get away from the assault before being forced to react with violence. The case of Beckford [1988] AC 130 establishes that the use of a ‘ pre- emptive strike’ is still conducive to the defence of self defence. This means that if A fears attack by another, it is not fatal to his defence if he lands the first blow.

  Self defence proceeds on the basis of what was the honest belief of the defendant.

  The modern test for self defence is found in the case of Oatridge

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  Jus ad Bellum

  The Law on Inter-State Use of Force

  • Stuart Casey-Maslen(Author)
  • 2020(Publication Date)
  • Hart Publishing

    (Publisher)

  3 Use of Force in Self-defence

  I.Introduction

  This chapter describes the right of every state under customary international law and Article 51 of the 1945 Charter of the United Nations1 (UN Charter) to defend itself and others ‘if an armed attack occurs’. It considers what constitutes an armed attack that justifies the use of force and how, in particular, the principles of necessity and proportionality affect the exercise of the right. The right to Self-defence is ‘clearly relevant to the question of the responsibility of a State for the use of force since the use of force in Self-defence would not be a breach of the jus cogens norm’.2

  Discussion is informed by international jurisprudence, in particular the Corfu Channel, Nicaragua, and Oil Platforms cases before the International Court of Justice (ICJ), as well as the Nuclear Weapons and Wall Advisory Opinions. The range of views of leading publicists is also assessed in establishing the normative content of the right.

  II.The Right of the State to Use Force in Self-defence The right of the state to use force in Self-defence is codified in Article 51 of the UN Charter. This article provides in full that:

  Nothing in the present Charter shall impair the inherent right of individual or collective Self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of Self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

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  Justice, Liability, And Blame

  Community Views And The Criminal Law

  • Paul H. Robinson(Author)
  • 2019(Publication Date)
  • Routledge

    (Publisher)

  On the other hand, a second element in the patterning of our subjects’ responses is evident-a tendency to assign lesser punishments than the Code. Our subjects and the Code disagree on the extent ofliability that should be imposed in those cases in which the person either acts in self-defense but knows that deadly force is unnecessary (cases 3 and 4) or in which he provokes the attack (case 8). The subjects’ disagreement with the Code is particularly striking in the case in which it would be possible for the person to retreat from the threat. While the Code denies a defense in this instance, leaving the person liable for murder, our subjects impose liability akin to manslaughter (5.8 years in jail) or, in the case of failure to retreat, something less (9.76 months). Apparently the subjects see a clear and significant distinction between an unjustified killing in self-defense and an intentional killing where no threat of attack exists. A self-defense provision that mirrors the subjects’ views would mitigate liability for even unjustified killings in a self-defense setting.

  The significant agreement that does exist between our subjects and the Code may be the result of community views manifesting themselves in the centuries of common-law development, upon which most of these rules are based. It may not be that the detailed rules are intuitive but rather that both the subjects’ views and the Code’s rules result from application of a few basic principles, such as the requirements that the defensive response be necessary and proportional.2 It also is possible that the rules of the legal code, which once may have been alien to the moral codes of the governed, over time became accepted moral principles. Morality can shape the law, but the law also can shape morality (Green, 1985).

  Study 6: Use of Force in Defense of Property

  The criminal law typically allows a person to use force in the protection of property. As with self-defense, the force used must be necessary to protect the property, both in the amount of force used and in its timing; that is, no lesser force and no delay in the use of force would have provided adequate protection. The force used also must be generally proportionate to the threat. Thus, the use of deadly

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  Self-Defense, Necessity, and Punishment

  A Philosophical Analysis

  • Uwe Steinhoff(Author)
  • 2019(Publication Date)
  • Routledge

    (Publisher)

  aggressor (or to setting back interests which would normally be protected by the aggressor’s rights).

  The necessity or lesser evil justification, in contrast, can justify a huge variety of things that would normally be prohibited: from infringing traffic laws to infringing the rights of entirely innocent and non-threatening people (including putative attackers – but to justify inflicting harm on them, the stakes, as we will see below, must be much higher than in the case of actual self-defense – which is of course one of the reasons why these two justifications must not be run together). Why such a wide-ranging possibility of justification? Because, as a German legal commentary aptly puts it, “neither the legal norms nor the legal interests protected by them can be enforced or safeguarded at all costs since there are exceptional situations in which infringing a prohibition is the only possibility of averting impending damages or harms whose acceptance would be far more difficult to bear for the legal order in the individual case than an infringement of the norms in that case.”7 A rejection of the possibility of such exceptions would, the same commentary maintains, look to the citizen like “arbitrary harping on about principles” (willkürliche Prinzipienreiterei ) and like an attempt to enforce “cadaver obedience” (Kadavergehorsam : the blind obedience attributed to the soldiers of the Prussian army).8 German law, of course, is not alone in this assessment: that there can be necessity or lesser evil justifications for infringing norms is also accepted in other Western jurisdictions and is certainly a common-sense assumption.9

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  eBook - ePub

  Martial Arts For Dummies

  • Jennifer Lawler(Author)
  • 2011(Publication Date)
  • For Dummies

    (Publisher)

  Chapter 9

  Protecting Yourself: Self-Defense Details

  In This Chapter

  Defending yourself only when you have to

  Shouting to thwart an attacker

  Preparing for the worst-case scenario

  Discovering the three levels of self-defense

  Defending yourself from the most common attacks

  O kay, so you signed up for lessons at the nearby Shotokan Karate school with visions of tying an attacker into knots without breaking a sweat. It can happen, right?

  Simple self-defense is a primary reason for why people train in martial arts. A person can learn self-defense without training in the martial arts, and to some extent, a person can train in martial arts without learning self-defense (sad to say). Martial arts taught as sports generally lack a critical foundation in what works on the street; instead, they concentrate on what works in the ring, with its strict rules and time limits.

  If learning self-defense skills is crucial to you, then make certain your instructor is qualified and is willing to teach these skills to you.

  While each martial art (and each instructor) emphasizes different techniques and drills, almost all martial artists share a basic self-defense philosophy. This chapter describes that philosophy and offers some basic self-defense moves that almost anyone can use to fight off some common attacks.

  The Philosophy of Self-Defense

  The most important concept in self-defense is defense. All reputable martial arts instructors agree that what they teach should be used only to defend, never to attack. Someone else must make the first move. The first move doesn’t have to be hitting you between the eyes with a beer bottle, but the attack must be something that justifiably threatens you or someone under your protection. It can be a statement: “I’m a-gonna shoot you with this here gun.” Or it can be the windup to a punch.

  Just walking away

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