The Innocent and the Criminal Justice System by Michael Naughton

Author:Michael Naughton [Naughton, Michael]
Language: eng
Format: epub
Tags: Law, Jurisprudence, Social Science, Criminology, Civil Procedure, Criminal Law, Sentencing, Legal Services, Sociology, General
ISBN: 9781137341150
Google: WEcdBQAAQBAJ
Publisher: Macmillan International Higher Education
Published: 2013-06-11T02:37:45+00:00

Self-defence

There is a lot of confusion in the applications to INUK on the issue of self-defence. Indeed, a distinction needs to be made between lay understandings of self-defence and how the legal system defines self-defence. For instance, an applicant to INUK who exemplifies the problem was convicted of murder and serving a life sentence. The applicant admitted to killing his ex-partner’s ex-partner. However, he claimed that it was not murder but, rather, self-defence and that he was innocent. His initial letter stated:

Their was a knock at the door it turned out to be her ex boyfriend who then kicked in the door and run across the room and punched me in the head. I picked up one of the two knifes that I had took to sell to someone who lived in a flat opposite her, and their was a violent struggle in which he received 13–14 wound’s [and] he later died … I am innocent and [that is] why me and my family can not accept that I am being classed as a murderer.

Criminal law understands that a person may use such force as is reasonable in the circumstances for the purposes of:

•self-defence;

•defence of another;

•defence of property;

•prevention of crime; and/or

•lawful arrest.

The basic principles of the law of self-defence are set out in R v Palmer in the following terms:

It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but only do, what is reasonably necessary.

In simple terms, then, self-defence is a response to a real or potential criminal act of violence where the principal reason for the use of force is protection. In this sense, the applicant to INUK may appear to have acted in self-defence as he claims that he was punched first before he retaliated and killed his attacker. However, s. 3(1) of the Criminal Law Act 1967 requires that those acting in self-defence must use only reasonable force as is deemed necessary in the circumstances:

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.

The Criminal Justice and Immigration Act 2008, s. 76(6) states further that:

The degree of force used by D [the defendant] 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.

In assessing the reasonableness and proportionality of the force used, prosecutors ask two questions, both of which the applicant to INUK cited above would fail:

1. was the use of force justified in the circumstances, that is, was there a need for any force at all?; and,

2. was the force used excessive in the circumstances?

The test of whether the force used in claims of self-defence has both subjective and objective elements. R v Williams indicated that the reasonableness of the force used will be

Download

Copyright Disclaimer:
This site does not store any files on its server. We only index and link to content provided by other sites. Please contact the content providers to delete copyright contents if any and email us, we'll remove relevant links or contents immediately.