Law
Self-defence
Self-defense refers to the legal right to protect oneself from harm or danger using reasonable force. It is a fundamental principle in law that allows individuals to defend themselves against an imminent threat without being held criminally liable. The use of force must be proportionate to the threat faced and must be necessary to protect oneself from harm.
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9 Key excerpts on "Self-defence"
eBook - PDFRethinking Self-Defence
The 'Ancient Right's' Rationale Disentangled
- T Markus Funk(Author)
- 2021(Publication Date)
- Hart Publishing(Publisher)
Note that defence of property is covered in the Criminal Damage Act of 1971 and arrest and the prevention of crime is discussed in § 3 of the Criminal Law Act of 1967, to be read in light of § 76. While similar – and apt to be overlapping, depending on the facts of the case – these are technically different defences. See generally R v Hitchens [2011] EWCA Crim 1626 (ruling that Self-defence and the defence of using reasonable force in the prevention of crime under the Criminal Law Act 1967, § 3 were capable of extending to the use of force against an innocent third party 7 Examining the English Law’s Treatment of Self-defence from a Value-Centric Perspective I. Putting England’s Law of Self-defence in Context Often referred to as ‘private defence’ or ‘necessary defence,’ the right to Self-defence in England is the right to defend oneself against an unjustifiable attack. The law of Self-defence, moreover, is one of the general defences that can be raised by ‘a person charged with [an] offence.’ 1 Turning to the burden of proof and persuasion, unlike in the US, a defendant in England need not explicitly rely on Self-defence during his trial for the question to go to the jury, so long as sufficient evidence was adduced to raise a prima facie case of Self-defence. 2 Once the defendant has adduced such sufficient evidence, the prosecution has the burden of disproving Self-defence beyond a reasonable doubt. 3 The law of Self-defence in England is now clarified in section 76 of the Criminal Justice and Immigration Act of 2008 (‘2008 Act’). 4 Specifically, the Putting England’s Law of Self-defence in Context 189 to prevent a crime being committed by someone else); R v Hayes [2011] EWCA Crim 2680 (describing this area as ‘notoriously difficult’). 5 See Criminal Justice and Immigration Act 2008, § 76(8).
eBook - PDF- Paul Gilbert(Author)
- 2003(Publication Date)
- Edinburgh University Press(Publisher)
Self-defence as a possible recourse in the maintenance of security is, then, I am suggesting, the indi-rect defence of lives, liberty and livelihoods of citizens through the defence of the conditions which protect them. In what one might call the primitive case, however, direct and indirect defence merge into one, when a body of citizens confronts a rapacious attacker whose motives are to kill or enslave them and to despoil their lands. That this case underlies international thinking about the right of Self-defence is evident from the fact that the state is allowed to possess the right to protect its own citizens and not just its terri-tory. How far this right extends to armed intervention abroad is a matter of legal debate, 4 but the existence of the right as what grounds the defensive use of force is undenied. In terrorist at-tacks, whether domestic or international, it is ordinary citizens who are put at risk and who require direct protection. Whether this is to be accomplished by the operation of the legal system or by military means is a question to which we shall return, but if it is by the latter then this is because, in the defensive version of just war theory, those attacks are regarded as acts against which the state needs to defend itself, just as if it were under attack, internally or internationally, by more conventional forces. Proper authority The account of Self-defence that I have suggested indicates why it is that sub-state bodies, as well as states themselves, can validly claim to be acting in Self-defence by taking up arms against the state they are in. There are again two sorts of circumstance in which they are justified in doing so. One is when the state itself is engaged in attacks against its own citizens which threaten their lives, liberty or livelihoods and these must be directly defended. The second is when the conditions for the protection of some or all citizens are threatened by the actions of the state. There are
eBook - PDF- W. Chan(Author)
- 2001(Publication Date)
- Palgrave Macmillan(Publisher)
The increased attention given to the tragic consequences of abusive relationships indicates that many women are required to find their own strategies for coping. Homicide resulting from abuse may be an indicator of women's increasing engagement with the legal system in `defending themselves', adding to the growing debate about the demand for inclusion of their experiences in definitions of law. In this section, I examine the law of Self-defence in relation to battered women's circumstances and offer a detailed discussion of the one suc- cessful case of Self-defence found in this case study. The principle of Self-defence in England and Wales is premised on the belief of a common-law right to defend oneself against invasion of person and property, and the public right to use reasonable force in the prevention of crime: (1) A person may use such force as is reasonable in the circum- stances 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 the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose. 43 If successful, Self-defence results in an acquittal of the charge of murder. Historically, the doctrine of Self-defence evolved from the thirteenth- century plea of se-defendendo. 44 As Chapter 1 demonstrated, the killing of a wife by the husband had not been considered, in the past, as serious an offence as the killing of the husband by the wife (Blackstone 1770). While the husband was charged with murder, the wife's crime of killing the husband warranted a charge of petty treason: [I]f the feme [wife] kills her baron [husband], it is regarded by the laws as a much more atrocious crime; as she not only breaks through the restrains of humanity and conjugal affections, but throws off all subjection to the authority of her husband.
eBook - ePubSelf-Defence in International and Criminal Law
The Doctrine of Imminence
- Onder Bakircioglu(Author)
- 2011(Publication Date)
- Taylor & Francis(Publisher)
Furthermore, a purportedly defensive action engaged in the absence of an imminent threat may not only unduly risk the life of an individual, but, if tolerated as an act of Self-defence, might wrongly be deemed acceptable in the eyes of society. As I pointed out earlier, Self-defence is a justificatory defence which grants the defendant such a strong moral and legal stance as to assert that what he did was legitimate and that he would act in a similar fashion had analogous conditions threatened one of his vital interests. 195 However, in cases of mistake of fact, the defendant intentionally employs lethal force against the putative aggressor in the wrong belief that he was under an actual, and imminent, threat of harm. In such cases, society often does not hold those who make honest mistakes to account (particularly when such mistakes are reasonable). 196 This expresses the common wisdom entrenched in the criminal law, namely that individuals should be excused from liability, or at least punished less severely, when they are unaware of the facts which rendered their act unlawful, or did not have the chance to act otherwise. Should the law be more lenient towards the vulnerable? What if the law does not pay due attention to those who require special protection (such as children, battered women or certain minority groups) and are thus particularly vulnerable to crime due to factors beyond their control (such as the ineffectiveness or indifference of law enforcement bodies)? 197 Should the law be more tolerant towards such vulnerable groups? For instance, in the case of individuals who are subjected to constant domestic violence, one could maintain that, on account of prolonged abuse and domination, such individuals deserve more lenience when they kill their abusive captors while the latter are passive
eBook - PDF- William Wilson(Author)
- 2002(Publication Date)
- Hart Publishing(Publisher)
4 With Self-defence, by contrast, the defend-ant does not seek to excuse his conduct but insists that he is permitted to meet unjustified force with (reasonable) resistance. Human beings cannot be expected always to retreat in the face of threats to their auton-omy. 5 A comparison of two cases may be instructive. In Field the defendant was warned that some men were on their way to attack him. Rather than retreat he stood his ground until they arrived. The promised attack duly transpired, during the course of which the defend-294 Central Issues in Criminal Theory 2 Until fairly recently a person threatened with an unlawful attack would not act law-fully in resisting it by force unless he had availed himself of any opportunity he may have had to retreat. The existence of such a duty of retreat reflected the idea that the use of force was presumptively wrong and therefore to be avoided at all costs. See G Fletcher, Rethinking Criminal Law (Little Brown and Company, Boston, Toronto, 1978), 864–8. 3 See Bird [1985] 2 All ER 513; Draft Criminal Law Bill 1993, cl 28(8). 4 See generally J Horder, ‘Occupying the Moral High Ground/ The Law Commission on Duress’ [1994] Crim LR 334, at 337–8. 5 Fletcher concludes that this sentiment weighs particularly heavy with the American public. ant stabbed one of the attackers fatally. The court concluded that the defendant had no duty to quit premises he was lawfully inhabiting sim-ply to avoid attack. It followed that he was entitled to defend himself using reasonable force when the attack occurred. By contrast, in Gill , on a charge of theft of his employer’s lorry, the defendant was unable to avail himself of the defence of duress where he had been left alone after the threats had been issued and prior to the theft and thus been afforded a good opportunity to raise the alarm and escape the threat.
- Mary Ellen O'Connell(Author)
- 2019(Publication Date)
- Cambridge University Press(Publisher)
It requires a report to the Security Council. The design is of a narrow, temporary right made narrower by the general principles that condition it: necessity, proportionality, and the law of responsibility. This under- standing of Self-defence has been challenged since 1945, persis- tently in the three categories discussed in Part III. III A Case for Strict Limits As mentioned in previous chapters, Cold War challenges to the law of Self-defence tended to revolve around characterization of facts. While some states also challenged the law, the greater number of direct challenges to the law have occurred since the end of the Cold 144 J. Brunée and S. J. Toope, ‘Self-defence Against Non-State Actors: Are Powerful States Willing but Unable to Change International Law?’, International and Comparative Law Quarterly, 67 (2018), 263–86. 145 See note 143. 146 Some have claimed that the opinion and practice of specially affected states has greater weight in the formation of customary international law rules than others. Whether this is true for any rule of customary international law, it is not true of rules related to the use of force as all states are affected. The Limited Exception for Self-defence 185 War. This part looks at legal arguments around ending weapons programmes and shipments, 147 rescuing nationals, 148 and counter- ing terrorism. 149 Successful arms control has always involved trea- ties, not the use of force. Low-level force can be justified in the rescue of nationals but is regulated under the law of countermea- sures, not Self-defence. Successful terrorism suppression has involved both law enforcement and treaties. The examples in this part demonstrate that political leaders in several states with major militaries persist in using force and claiming a right to Self-defence to do so in all three categories, despite poor results. A Arms Control versus Self-defence The drafters of the UN Charter saw weapons as directly linked to the causes of armed conflict.
eBook - PDFCrime, Reason and History
A Critical Introduction to Criminal Law
- Alan Norrie(Author)
- 2014(Publication Date)
- Cambridge University Press(Publisher)
Such an analysis is illuminating but turns out to be problematic. It reveals the degree of fluidity and conflict that underlies, and eventually undermines, the legal position. (a) Self-defence as justification or excuse Let us consider further the argument that Self-defence be analysed as justifica- tory in its standard form and excusatory in so far as it involves a mistake. Is this necessarily so? In its justificatory form, the claim is that D did the right thing, or had the right to act, or was at least permitted to act as she did on the balance of evils. In only the first of these three forms is it clearly the case that what was done was fully justified. The two lesser forms, having the right and being permitted to act, are compatible with a sense that what was done was still at some level wrong, right only on the balance of considerations, or to be permit- ted but regretted. Nonetheless, in all these cases, there is a broad sense that what was done was justified in D’s case. None of this, however, is morally conclusive. Self-defence may be regarded, even in its ‘perfect’ form, through a different lens as excusatory. For example, where an individual acts to defend another, an act that should more properly be done by the state or its officials, this could be viewed as a wrong act that should be excused, rather than as a right act per se (Nourse, 2001, 1275–6). It depends in large part on how one views rights and wrongs in a liberal polity: what is the role of the state, and how much should be expected or permitted of a citizen? There is scope here for great fluidity in judgment. Kent Greenawalt (1984) depicts the various possibilities for ethically grading acts of Self-defence as 291 Mistaken Self-defence: offence, defence and mens rea justification or excuse in the following example involving retreat in one’s own dwelling from an intruder.
- Martin Jarrett(Author)
- 2019(Publication Date)
- Cambridge University Press(Publisher)
16 1 6 2 A Definition of Defence 1 Defining Defence On account of the juristic compulsion to define words and the fundamental importance of the concept, it is surprising 1 that a commonly accepted defin- ition cannot be ascribed to ‘defence’. Worse, it is habitually used in a ‘slap- dash’ 2 and ‘sloppy’ 3 way. 4 Robinson 5 and Goudkamp 6 identify, in the context of Anglo-American criminal and tort law, respectively, five different uses for defence. The jurisprudence from international law is equally unhelpful. 7 The lack of a commonly accepted definition of defence gives rise to the need to create one. 8 In law, the task of definition is aided by rules of interpret- ation. 9 This aid, however, is not applicable for present purposes because the task is to define a transjurisdictional concept, 10 as opposed to a legal element 1 Although it is generally acknowledged that the more fundamental a concept, the more diffi- cult it is to find a commonly accepted definition; see Hart, ‘Definition and Theory’, 23. 2 Goudkamp, Tort Law Defences, 64. 3 Campbell, ‘Offence and Defence’, 75. 4 For a list of the various synonyms of defence in international law, see Szurek, ‘Notion of Circumstances Precluding Wrongfulness’, 427 and 432–433. 5 Robinson, ‘Criminal Law Defenses’, 204–232. 6 Goudkamp, Tort Law Defences, 1–5. 7 Crawford, State Responsibility, 275; Szurek, ‘Notion of Circumstances Precluding Wrongfulness’, 427. 8 In the words of John Locke: ‘it is not enough that men have ideas, for which they make these signs stand; but they must also take care to apply their words as near as may be to such ideas as common use has annexed them to’; see Locke, Essay Concerning Human Understanding, Book III, chap. 11, § 11.
eBook - PDF- Boaz Sangero(Author)
- 2006(Publication Date)
- Hart Publishing(Publisher)
1029 Private defence also serves the social-legal order, while tak-ing the law into one’s own hands often actually harms it. Indeed, there are cases in which the distinction between the two phenomena is difficult to draw. When the aggressor, for example, grabs a wallet from the attacked person and the attacked person immediately uses force to get his wallet back, it is not difficult to see his action as justified private defence. Thus too, when he immediately begins to run in pursuit of the thief and, when he catches him, exercises the defensive force. But what if the attacked person waited for a few seconds before he acted? And if he waited for a full minute? Or for an hour? Repossession of Property 1028 See the explanatory wording of the MPC (Tentative Draft No 8 (Philadelphia, 1958)) at 42–47. 1029 D Bein, ‘The Attitude of the Criminal Law towards Self-Help’ (1968) 24 Hapraklit 322 (Hebrew) at 324–25. 261 Yet the difficulty in making the distinction does not negate its substantive justification, just as the state of twilight does not negate the distinction that exists between day and night. In fact, this difficulty is similar to the regular difficulty in the determination of compliance with the conditions of immediacy—from both extremes (on the time axis) of the attack—ie, not too early but also not too late. Englard noted a similar problem regarding the distinction between private defence and taking the law into one’s own hands that arises within the framework of the law of torts, and suggested the following test: has the factual situation already been permanently altered? 1030 Although such a test would not dictate clear solutions for all situations, it could also be of assistance in the criminal area.
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