Law Self-defence evaluation

  • Created by: keeve
  • Created on: 16-06-22 10:16

Self-Defence paragraph 1

One positive aspect of  self-defence is that the law has stated that there is no need for a person to retreat when they become a victim of a crime 

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Self-Defence paragraph 1

This was shown in the case of Bird (1985), where a girl attacked her ex-boyriend because she felt threatened by his aggressive behaviour 

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Self-Defence paragraph 1

This is good because it considers people's fight or flight instinct when faced with a dangerous situation, meaning that a person who prefers to stand their ground is not legally punished for this stance. 

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Self-Defence paragraph 1

In fact, Parliament decided that this was such an impoortant aspect of the defence, that the right to stand and fight was enshrined in law through s148 LASPO (2012), demonstrating how the law is adapting to meet the needs of the current legal system. 

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Self-Defence paragraph 1

However, this act also states that the jury can infer that the victim wanted to fight when failing to retreat, meaning that the defence can be negated. 

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Self-Defence paragraph 1

This is a problem as it creates inconsistency in an area whre case law generally supports the defence, as seen in Julien (1969),showing that the self-defence may need to be reformed in the future. 

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Self-defence paragraph 2.1

One area of the law that is reasoably sound is that force cant be used once the threat has passed. 

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Self-defence paragaph 2.2

This was evidenced in the case of Martin (2002) where a farmer shot at a burglar who was fleeing from his home, causing death. 

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Self-defence paragraph 2.3

The court followed the  decision in Clegg (1995), holdiung that self-defence would not be applicable in cases where it was no longer necessary to take action as there was no longer necessary to take action as there was no longer a threat to the to the party concerned, his family or his property. 

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Self-Defence paragraph 2.4

This is good because, it provides consistency in the law, limiting the use of the defence to when force is necessary, meaning that court time isnt wasted on spurious claims, showing that the current law meets he needs of the current legal system. 

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Self-Defence paragraph 2.5

However, the fact that this is an objective test means that the thought process of the defendant is not considered when they clearly felt that they, their family or property were being threatened. 

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Self-Defence paragraph 2.6

This contrasts with the legal finding over the need to retreat, Bird, where a subjective test is used, showing a clear problem that needs to be addressed, as inconsistent decisions are being made. 

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Self-Defence paragraph 4.1

The main issue regarding self-defence is balancing the rights of the parties involved, to ensure that people feel they have been fairly treated. 

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Self-Defence paragraph 4.2

It has often been said that 'a man's home is his castle' and so a person should have the right to protect his family and property from outside threats, which is why the criminal courts act 2013 allow householders to use disproportionate force. 

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Self-Defence paragraph 4.3

The problem is that the court will be faced with more and more difficult decisons over what grossly disproportionate force actually is, moving the UK law closer to that of Texas in the US, where a homeowner can protect their property with legal force. 

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Self-Defence paragraph 4.4

This leads to conflicting moral disagreements over whether or not the householder is able to administer immediate punishment on intruders or whether this should be for the courts to decide, demonstrating, once again, that reform in the area of self-defence is needed. 

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Self-Defence Conclusion

This shows that, in conclusion, despite issues around new changes to the defence, the law is in the most part fit for purpose and meet the needs of the current legal system. 

However, it will be interesting to see how the courts, and juries in particular, interpet 'grossly disproportionate' in householder cases over the coming years. 

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