The Blip Blop Blog (Team Entity)

With reference to the decision in R v Bird (1985), it may seem or look like, to most of us anyway, that the court should impose a duty to back away or a duty to retreat prior to granting or allowing the defendant to raise the defense to self-defense however the decision in R v Bird (1985), is not without its merits. One of the reasons that the courts are reluctant to impose a duty to back away or a duty to retreat in situations like that in R v Bird (1985) is because it may place the defendant in greater danger and decisions like the decision in R v Bird (1985) become more relevant in the area of psychological profiling. There is nothing to suggest that the defendant backing away, or retreating, for that matter, will make the attacker relent. If anything, it tends to suggest the opposite, especially in areas of spouse or wife abuse where the wife or spouse’s helplessness or weakness to some extent aggravates the situation as implied by the facts in cases like R v Duffy (194

In order to the rely on the defense of self-defense the defendant does not have to back away from a situation or there is no requirement for the defendant to withdraw prior to using reasonable force or force that is necessary i.e. there is no duty to retreat. While it goes to show or demonstrate that the defendant was acting in good faith there is no requirement that the defendant should retreat prior to the situation getting out of hand or out of control. In R v Bird (1985) the defendant was at a party when her ex-boyfriend turned up with his new girlfriend. He approached the defendant and a heated argument ensued and the defendant asked him to leave. He did so but returned later and the argument flared up again and got more heated. The defendant got so worked up that she poured her drink over her ex-boyfriend and he retaliated by slapping her and pining her to the wall. The defendant responded by punching him in the eye and when she did so, the glass in her hand broke

In R v Scarlett (1994) the defendant was a publican who was trying to evict a customer who was drunk. The defendant asked the customer to leave and he refused to do so and the defendant believed that the man was about to strike him so he pinned the man’s arms to his back and forcefully took him outside and left him by the wall of the lobby. The man fell backwards, down a flight of 5 steps, hit his head and died as a result. The defendant was tried and convicted for manslaughter. The defendant appealed. The appeal was allowed and the conviction was quashed. There was no evidence to indicate that the defendant had used excessive force. “They ought not to convict him unless they are satisfied that the degree of force used was plainly more than was called for by the circumstances as he believed them to be and, provided he believed the circumstances called for the degree of force used, he was not to be convicted even if his belief was unreasonable.” The test to decide whethe

A defendant is not entitled to rely on self-defense when there is a mistake of facts induced by voluntary intoxication. In R v O’Grady (1987) the appellant and the victim were friends and they had spent the day, in the company of another friend, drinking. Between them they had consumed eight flagons of cider after which they retired to the appellant’s home. According to the appellant he was woken up by the victim and the appellant in self-defense picked up some broken glass and started hitting the victim over the head. Once the fight had subsisted, they patched things up and he cooked both his friends a meal and the three of them then went to bed. The defendant and the other friend woke up the next morning to find the victim dead in bed, he had died as a result of blood loss and further investigation revealed that the victim had over 20 injuries on his face in addition to severe bruises on his head, brain, neck, and chest, and a broken rib. The blows were delivered by a shar

In Beckford v R (1988) the police received a phone call from someone claiming to be the victim’s sister stating that the victim was armed with a gun and was holding his mother hostage. The police in response sent an armed unit to investigate and as the police officers entered the house, the defendant saw someone running out the back door. The defendant followed, and the victim turned around holding what appeared to be a gun and pointed it at him. The defendant retaliated by opening fire and the victim was killed. As it turned out the victim was not holding a gun and no gun was ever found. The defendant was charged with murder. At the trial, the judge directed the jury that the defendant in instances of self-defense is only entitled to use reasonable force as opposed to excessive force and if the force that is used is excessive then the defendant can be convicted for murder. The jury found that the force that was used was excessive and accordingly convicted the defendant for

The test to determine whether the force that was used was reasonable or otherwise is subjective, i.e. it depends on the perceptions of the defendant at the time. Perceptions differ from person to person and what may seem as dangerous or imminent to one person may not seem dangerous or imminent to another person. It also depends on a person’s state of mind at the time and a person who has been attacked before or who has been a victim of a previous attack is more likely to perceive a danger as opposed to someone who has not. British law recognizes this fact and in the United Kingdom, there used to be, I’m not certain if they still exist, support groups who help victims readjust after they’d been subjected to a vicious attack. As soon as an attack is reported to the London Met Police, the police get in touch with these support groups who then send out a letter inviting the victims to come forward and attend counselling sessions and these sessions help the victim to readjust aft

Before the defense of self-defense is made available to the defendant it must be established that the threat is imminent for example in instances of a preemptive strike i.e. when the defendant strikes first in fear of being attacked. In Evans v Hughes (1972) a man was charged with carrying an iron bar down a public highway seven day after he was attacked. The question before the court was whether the defendant’s actions were in self-defense (preemptive) given the fact that he was recovering or recuperating from an attack that occurred just seven days prior. It was held that “when you get to seven days you get in my judgement very close to the borderline, but at the borderline it is the good sense of the justices which must ultimately determine whether or not there was reasonable excuse. I am not sure I would have reached the same conclusion” - Lord Widgery CJ. With regards to what is imminent or otherwise - “it remains for a jury to determine how imminent, how soon, how

The right to defend oneself or the right of self defense is also provided in article 2 of the European Convention of human rights. Article 2 of the convention which is also known as the right to life reads as follows:- 1.      Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2.      Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) In defense of any person from unlawful violence; (b) In order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) In action lawfully taken for the purpose of quelling a riot or insurrection With reference to the article 2 of the European Convention of human rights, reasonable force can also be interpreted

Self defense is an entrenched common law defense. A person may use reasonable force to:- 1.      Stop/prevent an attack on himself or herself 2.      Stop/prevent an attack on another person see R v Duffy (1967) 3.      Stop/prevent and attack on his or her property see R v Hussey (1924) The type of force that is to be used or that is allowed is reasonable force and what amounts to reasonable force is a question of fact for the court or the jury to decide after taking into account all the evidence that is available. In Moriarty v Brookes (1834) a publican tried to evict a customer who was causing a disturbance and refused to leave. The publican put his arm around the man’s shoulders and tried to evict the man and in doing so injured him below the eye (there was a cut in the skin which resulted in bleeding). ‘If the violence which occurred took place in an endeavor by the defendant to turn the plaintiff out of the house, the third plea is proved. However, this ple

For the purposes of s47 of the Offences Against the Person Act (1861) actual bodily harm is defined as any act that causes a break in the continuity of the skin see JJC v Eisenhower (1984), any acts that precipitate or induce a psychiatric illness see R v Burstow (1997) and R v Ireland (1998) and it also includes any act that falls within the ordinary meaning of the term “actual bodily harm” which includes causing cuts, bruises, lacerations etc. to another. It also includes acts that may seem trivial to others but impacts the victim’s emotional well-being for example the cutting-off of the victim’s hair without the consent of the victim. In DPP v Smith (2006) the defendant went over to his ex-girlfriend’s house and cut off her pony tail with a pair of kitchen scissors and while there was no physical injury or there was no break in the continuity of the skin, the victim was distressed, and the defendant was charged with occasioning actual bodily harm. At first instance the ma

While the victim can be found guilty of causing or precipitating a psychiatric illness under s47 of the Offences Against Person Act (1861) see R v Burstow (1997) and R v Ireland (1998) he or she cannot be found guilty under s47 of the Offences Against Person Act (1861) for causing nervous shock for example in situations like that of Bourhill v Young (1943). In R v Chan Fook (1994) the defendant had accused the victim of stealing his fiancé’s ring. The defendant after striking the victim several times, locked him in a second-floor room. The victim fearing that the defendant might return and hit him again, tried to escape through a window and as a result sustained injury. The defendant was charged under s47 of the Offences Against Person Act (1861) for causing him fear and panic. According to the direction given by the trail judge (first instance) to the jury, ABH or actual bodily harm includes inducing panic and hysteria. The defendant was convicted and appealed the conviction.

The actus reus (physical element) that needs to be established to obtain a conviction for a s47 offence is usually assault and battery but assault per se would suffice as long as it was done repeatedly and done with the intention to intimidate the victim see R v Burstow (1997) and R v Ireland (1998). Battery is a summary offence i.e. an offence that is tried at a magistrate’s courts. It is an offence that in most instances follows an assault. The defendant first verbally abuses or intimidates the victim and soon after carries out his or her threat by using some form of physical violence. Section 39 of the Criminal Justice Act 1988 gives us an idea of the offence. The section reads as follows: – “Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months, or to both”. However in order for the defendant to be guilty

In R v Spratt (1990) the accused fired his air gun from an open window without thinking that there might be others in the vicinity, the thought never occurred to him. Two of the bullets that were fired from the air gun hit a young girl who was playing in the courtyard and the accused was charged with causing actual bodily harm (ABH) as per s47 of the Offences Against Person Act (1861). The question before the court was whether a) the accused intended to cause actual bodily harm or b) whether his conduct was so reckless that intention could be implied. The accused pleaded guilty and was sentenced. The accused appealed the sentence. On appeal, the prosecution relied on the Caldwell test and sought to obtain a conviction on the grounds that the accused had either not given any thought to the possibility of there being any such risk or had recognized that there was some risk involved but had nonetheless gone on to commit the act. His conviction was quashed, and the judge decided tha

In R v Venna (1975) the defendant and his friends were causing a ruckus, shouting, yelling, and banging trashcan lids together at 3 am in the morning. Their conduct caught the attention of a police officer who ordered them to stop but they refused. The police officer then proceeded to arrest them, but the defendant resisted, and the police officer called for backup. The defendant continued to resist arrest, and it eventually took three police officers to restrain the defendant who was pulling away, lashing out with his hands, and kicking wildly. While arresting the defendant one of the police officers was injured as a result of the defendant’s actions and a bone in his hand was fractured. The defendant was charged and convicted. The defendant appealed on the grounds that recklessness in itself was not sufficient for a conviction and the prosecution must establish intention i.e. a deliberate act that was done to injure the police officer citing R v Lamb (1967), where two boys

The mens rea (mental element) for a s.47 offence is either - 1.      Intention or 2.      Recklessness The test to determine whether the defendant intended to cause the victim some harm or was reckless as to whether some harm was caused or not is objective and the defendant need not foresee the consequences of his actions. It suffices that the injuries that resulted were a natural and probable consequence of the defendant’s actions. In R v Roberts (1971) the defendant and the victim met at a party. Once the party was over the defendant offered to give the victim a lift in his car which the victim accepted and while they were on the road the defendant made sexual advances at the victim which the victim spurned or rejected. When the defendant did not stop the victim jumped out of the moving car and sustained cuts, bruisers, and other minor injuries. The defendant was charged with assault occasioning actual bodily harm and sexual assault. He was convicted for assault oc

s.47 of the Offences Against Persons Act (1861) reads as follows:- “ Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable  . . . (to imprisonment for a term not exceeding 7 years) . . . ; and whosoever shall be convicted upon an indictment for a common assault shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding (two years).” Actual bodily harm per se is defined as minor injuries including cuts, bruises, lacerations, or any other harmful act that causes the victim to suffer from some form of injury and it does not only include physical injury but also includes psychiatric injury see R v Burstow (1997) and R v Ireland (1998) Assault is a prerequisite to obtaining a s.47 conviction. Assault  is defined as  the act of intentionally or recklessly causing the victim to apprehend immediate and unlawful violence i.e. it is an offence that can be committed intentionally or an offence

3. Inflict – the word inflict includes both direct and indirect harm and it could either be intentional or due to the defendant’s recklessness. In R v Martin (1881) the defendant shut the doors at a theater and placed a crossbar across the door. He then switched off the lights on a staircase and yelled “fire”. His actions caused a panic and some of those that were in attendance were injured when they rushed out. It was held that the defendant, regardless of the fact that he was merely playing a prank, must be deemed to have intended the consequences of his actions and he was found guilty accordingly. In R v Wilson (1984) the defendant hit a pedestrian (the victim) with his vehicle and a heated argument subsequently ensued during the course of which the defendant punched the victim. It was held that ‘grievous bodily harm may be inflicted, either where the accused has directly and violently 'inflicted' it by assaulting the victim, or where the accused has 'infl

Grievous Bodily Harm includes psychiatric illnesses. However an action for causing a psychiatric illness is best brought under s20 of the Offences Against Person Act (1861) because a s18 conviction of the same act requires a break in the continuity of the skin see JJC v Eisenhower (1984) In R v Ireland and Burstow (1998) the defendant and the victim were in a brief relationship which the victim unexpectedly ended. Unhappy with the victim’s decision, the defendant harassed the victim for several months making repeated phone calls, sending her threatening letters, turning up unexpectedly and speaking to her neighbors. The defendant’s actions caused the victim to succumb to a psychiatric illness (severe depression). It was decided that: – 1.   Words are sufficient to constitute an assault. In fact, silence alone for example in instances where the caller calls the victim and remains silent can constitute an assault – the proposition … that words cannot suffice is unrealistic

When assessing the nature of the injury (injuries) the jury is to take into account all factors and whether the injury (injuries) amount to GBH or otherwise is to be determined by taking into account ordinary standards of usage and experience and this direction is in line with Section 8 of the Criminal Justice Act (1967). In R v Brown and Stratton (1997) the defendant and his cousin were embarrassed by the defendant’s father who was undergoing a gender reassignment and turned up at the defendant’s workplace wearing a dress. Both the defendant and his cousin after a drinking bout, went over to the where the defendant’s father was staying, and assaulted her inflicting numerous injuries including a broken nose, a concussion and knocked out several teeth. The defendants pleaded guilty to causing actual bodily harm as per S. 47 of the Offences Against Persons Act (1861) and not grievous bodily harm (GBH) as per S. 18 of the Offences Against Person Act (1861). The trial judge dir