Crime CXXI – Self Defense XI
By
virtue of S.76 of the Criminal Justice and Immigration Act 2008 the common law
defense of self-defense was given statutory effect (an act of parliament is
higher than common law and in case of conflict between the two, an act of
parliament or statutory law will prevail).
S.76
of the Criminal Justice and Immigration Act 2008 reads as follows: -
Reasonable
force for purposes of self-defence etc.
(1)
This section applies where in proceedings for an offence—
(a)
an issue arises as to whether a person charged with the offence (“D”) is
entitled to rely on a defence within subsection (2), and
(b)the
question arises whether the degree of force used by D against a person (“V”)
was reasonable in the circumstances.
(2)
The defenses are—
(a)
the common law defence of self-defence; and
((aa)
the common law defence of defence of property; and)
(b)
the defences provided by section 3(1) of the Criminal Law Act 1967 (c. 58) or
section 3(1) of the Criminal Law Act (Northern Ireland) 1967 (c. 18 (N.I.))
(use of force in prevention of crime or making arrest).
(3)
The question whether the degree of force used by D was reasonable in the
circumstances is to be decided by reference to the circumstances as D believed
them to be, and subsections (4) to (8) also apply in connection with deciding
that question.
(4)
If D claims to have held a particular belief as regards the existence of any
circumstances—
(a)the
reasonableness or otherwise of that belief is relevant to the question whether
D genuinely held it; but
(b)if
it is determined that D did genuinely hold it, D is entitled to rely on it for
the purposes of subsection (3), whether or not—
(i)it
was mistaken, or
(ii)
(if it was mistaken) the mistake was a reasonable one to have made.
(5)
But subsection (4)(b) does not enable D to rely on any mistaken belief
attributable to intoxication that was voluntarily induced.
((5A)
In a householder case, the degree of force used by D is not to be regarded as
having been reasonable in the circumstances as D believed them to be if it was
grossly disproportionate in those circumstances.)
(6)
(In a case other than a householder case,) the degree of force used by D
is not to be regarded as having been reasonable in the circumstances as D
believed them to be if it was disproportionate in those circumstances.
((6A)
In deciding the question mentioned in subsection (3), a possibility that D
could have retreated is to be considered (so far as relevant) as a factor to be
taken into account, rather than as giving rise to a duty to retreat.)
(7)
In deciding the question mentioned in subsection (3) the following considerations
are to be taken into account (so far as relevant in the circumstances of the
case)—
(a)that
a person acting for a legitimate purpose may not be able to weigh to a nicety
the exact measure of any necessary action; and
(b)that
evidence of a person's having only done what the person honestly and
instinctively thought was necessary for a legitimate purpose constitutes strong
evidence that only reasonable action was taken by that person for that purpose.
(8)
(Subsection (7) is) (Subsections (6A) and (7) are) not to be read as
preventing other matters from being taken into account where they are relevant
to deciding the question mentioned in subsection (3).
((8A)
For the purposes of this section “a householder case” is a case where—
(a)the
defence concerned is the common law defence of self-defence,
(b)the
force concerned is force used by D while in or partly in a building, or part of
a building, that is a dwelling or is forces accommodation (or is both),
(c)D
is not a trespasser at the time the force is used, and
(d)at
that time D believed V to be in, or entering, the building or part as a
trespasser.
(8B)
Where—
(a)a
part of a building is a dwelling where D dwells,
(b)another
part of the building is a place of work for D or another person who dwells in
the first part, and
(c)that
other part is internally accessible from the first part,
that
other part, and any internal means of access between the two parts, are each
treated for the purposes of subsection (8A) as a part of a building that is a
dwelling.
(8C)
Where—
(a)a
part of a building is forces accommodation that is living or sleeping
accommodation for D,
(b)another
part of the building is a place of work for D or another person for whom the
first part is living or sleeping accommodation, and
(c)that
other part is internally accessible from the first part,
that
other part, and any internal means of access between the two parts, are each
treated for the purposes of subsection (8A) as a part of a building that is
forces accommodation.
(8D)
Subsections (4) and (5) apply for the purposes of subsection (8A)(d) as they
apply for the purposes of subsection (3).
(8E)
The fact that a person derives title from a trespasser, or has the permission
of a trespasser, does not prevent the person from being a trespasser for the
purposes of subsection (8A).
(8F)
In subsections (8A) to (8C)—
“building”
includes a vehicle or vessel, and
“forces
accommodation” means service living accommodation for the purposes of Part 3 of
the Armed Forces Act 2006 by virtue of section 96(1)(a) or (b) of that Act.)
(9)
This section(, except so far as making different provision for householder
cases,) is intended to clarify the operation of the existing defences
mentioned in subsection (2).
(10)
In this section—
(a)
“legitimate purpose” means—
(i)the
purpose of self-defence under the common law, (or)
((ia)the
purpose of defence of property under the common law, or)
(ii)the
prevention of crime or effecting or assisting in the lawful arrest of persons
mentioned in the provisions referred to in subsection (2)(b);
(b)references
to self-defence include acting in defence of another person; and
(c)references
to the degree of force used are to the type and amount of force used.
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