welcome to data laws. Self defense updates What we're going to look out over the next 20 minutes or so. It's statute and some case law on a couple of other sources that might help you if you're looking for inspiration, either in an opening speech or a closing speech, depending on who you're appearing for, don't worry. If you're not appearing in court, it's going to be useful if you're a police station rep or you're just seeing clients in the office for appointments. So let's start with the statues with this weapon are. There's also a copy of Section 76 of the Criminal Justice and Immigration 8 2000 and eight. So what you might want to do is to print that off or have it hand as we go through this Webinar. What's of importance here is it covers when self defense may be used, and essentially it co defied the old common law self defense that most of us have grown up with law school. It defines reasonable force on it indicates when force will not be reasonable. It considers mistake and reasonableness of belief at the time of person uses self defense, and it looks at what's called the household, the defense and grossly disproportionate force. It also critically limits the availability of self defense, where a defendant is acting under a mistaken belief that could be attributed to intoxication. We're going to look at cases dealing with all of these assets. Another thing you might want to do is to go to the link off a specimen directions. And if you open that up, you're going to find that it contains the roots to verdict and specimen directions, which Crown court judges and recorders use to direct the jury on self defense. There's some Lauren that than the some ordinary English. That's the stuff that used to explain the law to the jury. Is there any good to me and the Magistrates Court or the police station? You might be thinking, Well, yes, because we all have times when sometimes we just forget something or it doesn't seem to make sense, even if it's a concept we know well on the special direction. SEC things out with clarity the great sometimes for explaining to clients. They're great to put in a letter explaining to clients here are more likely to sit a read your letter how the court approaches self defense, and if you're opening a case or your closing his pace during a trial, they make really good skeleton foundations for your closing speech. So, yes, you can use them in the Magistrates court. And if you've got five minutes at the end of this webinar, if you have a look at the bench book in its entirety, you'll find special directions for all sorts of things that you can incorporate into daily working life and make things easier for yourself. So before we go into the cases, let's just remind ourselves but the burden of proof in self defense. The defendant is going to have to reduce some evidence to support self defense. Now that might mean that he's gonna have to go in the witness box, and the examine and cross examines say that he confound the factual basis of the defense. But occasionally it may be that a defense advocate can cross examine on exact enough concessions from witnesses to raise self defense. Once it's raised, the prosecution have to satisfy the court, so they're sure that the defendant didn't act himself defense so either that there were no circumstances calling for self defense, disproving the factual basis he's put forward, showing that, for example, he's lying and that what he did was really revenge. Something like that, all they might be out to prove that the force used was unreasonable. So let's start with Collins now. This is a civil case in front of the Queen's bench division, but it's very useful because it's the first time one of the senior courts really looked at what's called the Householder defense under Section 76. Here we have an adult who broke into a house at three in the morning. Unfortunately for him, the family were in the house, and although most of them were asleep, they were soon roused because it appears that Dad, a 15.5 stone builder who'd had a few drinks, was woken up by Mr Collins. He realized he was being burgled. Hay and other members of the household found that Mr Collins is behavior to be bizarre. The bill to put Mr Collins in a headlock, and he held in there for approximately six minutes on that stopped Mr Collins breathing. He was resuscitated when the paramedics turned up, but he was left in a coma with serious brain damage, and at the time that high court heard the case, it was thought it was unlikely he would ever recover. So his father bought a civil claim because the CPS it declined to prosecute because they thought that the builder had the household. A defense. Mr Collins is father. I wanted to challenge Section 76. He felt that it breached his now comatose son's right to life under Article two, and he wanted to argue that Section 76 in so far as it raises the householder defense was incompatible with his son's human rights under Article two. And he was seeking what's called a declaration of incompatibility, which is something the high court can make under Section four of the Human Rights Act. The net effect, in theory, is that difficult ever makes the declaration of incompatibility. The expectation is that Parliament will amend the legislation to make it more convention friendly. But that's by the by. Let's have a look at what they thought. Well, they established that Section 76 allows a householder to use self defense, providing his actions are not grossly disproportionate to the threat that he perceives and Lord Levenson set out in his judgment four considerations for a jury trying a householder who raises this defense. And we can use those four steps if you're prosecuting, or your defending or advising at the police station. So first thing Court has to consider is whether the degree of force used in any case is reasonable. And that's considered by reference to the circumstances, as the defendant believed them to be, which was the old common law on the effect of Section 76 3 Householder won't be regarded as having acting reasonably in the circumstances if the degree of force used was grossly disproportionate. So your normal self defense a fight in the pub, for example, where one party seeks to protect himself. The legitimacy of the actions are judged by whether the force was reasonable and proportionate in the circumstances, as the defendant believed them to bay. So if the defendant hits someone over the head with a dumbo when a what's happened is that a fist has been waved in his face that might be thought to be over the top and unreasonable force. But if someone's coming at him with a large knife and he's got, say, for example, of beer bottle in one hand and he smashes the bottle over the person's head. Then that might before to be reasonable because after all, he was being threatened with a knife. The degree of force, if it's gone completely over the top, would normally be viewed in the householder case was grossly disproportionate. But note that Lord Levenson isn't saying that going over the top will always be grossly, grossly disproportionate. He's saying that it's a makes a prime of Facey case for grossly disproportionate. However, Householder may or may not be regarded as having acted reasonably in the circumstances. If the degree of force used was disproportionate, it means, in essence, firstly, prosecution need to be able to show that the defendant's belief was not such as to justify self defense, so that we're looking at the circumstances on whether or no those called for self defense and testing his belief. If the force used, was grossly disproportionate, then he loses the householders defense. But if you can show the force was not grossly disproportionate, even though what he did not be regarded as unreasonable because it's not grossly disproportionate he's entitled to be acquitted. So it's radically different to mainstream self defense, and you can see a paragraph 61 60 72 of the judgment set out on your slides. What the high Court had to say on what, in essence, it means is a householder has far greater latitude than anybody else. When it comes to self defense, we'll have a look at what out what might include a householder. When we come to look at the case of Cheesman, let's turn now to the case of Ray from last year here, the lady had a new partner in the night her ex partner turned up after he'd sent some abuse of texts he banged and hammered on the door when she hoped he watch this way in. He'd been violent to her in the past, and he was now pretty angry. This alerted her new partner. There was a fight, and during that fight the Newport was stopped. The X It doesn't look as if that much force was used, but the consequences were fatal. Mr. Ray challenged his conviction. He had attempted to run the household defense, but Sheffield Crown cool and the court of appeal, said the stages of considering self defense in householder cases of these ascertained firstly, what are the facts as the defendant believed them to bay? Well, the defendant only has to reduce evidence here. He doesn't have to prove, for example, on the balance of probabilities what the fact is he believed them to bay, and then, having decided what it the defendant believed the facts to bay in those circumstances was the force that he used. Reasonable. If it was, that's the end of the argument. If it's not a householder case and the force use was reasonable, he's entitled to be acquitted. If it's a householder case, the jury must ask themselves, I'll be sure that the force used was grossly disproportionate if they don't think it was grossly disproportionate than ask themselves whether the force was reasonable in the circumstances, as the defendant believed them to be, so that might mean that the force was unreasonable. But in the circumstances in which the defendant believed himself to be in, in fact, the forces reasonable. Viewed against that background, the Court of Appeal look back at Collins and confirmed the approach that that quarter taken. That's helpful because the Queen's bench division decided Collins and now raise being looked at in the Court of Appeal on what my size, if the degree of force was not grossly disproportionate than the effects of Section 76 5 A. Is that the jury must consider whether that degree of force was reasonable, taking into account all of the circumstances of the case as the defendant believe them to be the use of disproportionate force, which is short of grossly disproportionate. It's no on the wording of that section of itself, necessarily the use of reasonable force. The jury are in such a case where the defendant is a householder entitled to form the view, taking into account all the other circumstances is the defendant believed him to pay that the degree of force used was either reasonable or not reasonable. The terms of the 2013 act, which is the act which amends section 76 to give it its appearance today, have therefore, in a household case slightly refined. The common law in a degree of force use that is disproportionate, may know nevertheless be reasonable, so we need to straighten out the terms. Is it grossly disproportionate. If it is, then the defendant can't avail himself of the defense. Is it disproportionate then, if it was considered reasonable in the circumstances, the defendant is entitled to an acquittal? What's the force? Simply reasonable again is entitled to an acquittal, Mr Ray, Unfortunately, despite trying to administer CPR and caused an call an ambulance, when he realized what he done was unsuccessful in running the householder defense, he was convicted on 11 to 1 majority Sheffield Crown Court. His appeal was also unsuccessful because the judge directed the jury properly. He received a life sentence with a tariff of 12 years. Let's now look, attach. We're going to look here at Section 76 3 on the effects of intoxication and self defense. The facts of touch a court bizarre. He was wandering around alongside set the River Thames in central London. A motorist had broken down. There had been smoke coming out of his car, but Mr Tight went to approach him on. That mattress becomes our victim. He was convinced that the hapless motorist was really a terrorist and he was going to detonate a bomb the victim was spoken to by Mr Attach who searched him and looked in the vehicle. The victim clearly believed that Mr Touch was some sort of security agent or security man. The police were called, and after they were satisfied, there was nothing amiss. Mr. Touch went on his way, but he came back still persisting in the belief that the victim was a terrorist going to detonate a bomb on battered him around the head with a tire on, leading to a charge. Later, conviction for attempt, murder. The trial judge had withdrawn the defense of self defense from the jury, and this is one of the case centers where somebody's belief is attributable to intoxication. And it's a mistaken belief, as was Mr Touches in the need or entitlement to resort to self defense. Then, in fact, there is no self defense to raise on. What had happened here is when the judge heard the agreed evidence, then he would, through the defense, and they agreed evidence here it was that the defendant had been suffering from a drunk induced psychosis. He also had a drug and alcohol induced paranoia. He wasn't drunk at the time of the attack, but he was suffering from paranoia which led to a mistaken belief as a result of that psychosis on the intoxication that created it. This is the unusual bit because he wasn't drunk or drugged at the time. His actions were attributable to the consequences of intoxication, namely, the psychosis on the paranoid belief on the Court of Appeal went on to say that the result nous or unreasonableness of the defendant's belief is material to the question of whether the belief was held by the defendants. It all. So if the belief Waas held, in other words, the jury for in that he did have that belief, it's unreasonable. Nous so far is guilt or innocence is concerned, is near the here, nor there. So that's a good point to make if you're doing a closing speech or a prepared statement in the police station, doesn't matter how much the police officer struggles to understand where your client was coming from. The reason oneness or unreasonableness of his belief is neither here nor there. Providing. It was honestly held, Levinson goes on to say. And don't forget he was the judging Collins, Leaving aside all cases of self induced intoxication, it had long been established that the first limb of self defense involved in assessment of the subjective state mind, I believe of the defendant objective considerations of what Waas or was not reasonable, are only relevant to the extent they may cast light on what the state of mind of the defendant, in truth, really waas. It thus follows that if the defendant's belief is based upon a mistake or delusion provided it was genuinely held, it can operate to satisfy the first limb of the defense. So if the defendant holds an unreasonable belief, then it may be that the evidence he gives us such that the jury simply don't believe that was his true state of belief or knowledge at the time. But if they think, yeah, it was a bit bizarre, then if they think it's an honestly held belief, then the defense is available to him at this stage in so faras, proving the need to resort to self defense is concerned on, Levinson went on to say it paragraphs 38 to 39 where there are no reasonable grounds to hold a belief it will surely only be in exceptional circumstances that a jury will conclude that such a belief Waas all might have been held. So, for example, in this detaches case, he could have had no reasonable belief that the hapless motorist was in fact, a terrorist, particularly not when the police came checked. Everything was well told, Mr Touch. Everything was well and left. There's no way that his belief after that point could have been considered reasonable. And so the jury might think in those circumstances. Well, when he tells us he honestly believed he needed to resort to self defense, they might not believe him. And they don't think that he's making that up now to suit his case. Looking at the issue of intoxication, which is the the central point about this judgement, Levinson makes the point plane a paragraph 60 in our view, and he's looking at Section 76 5 The words attributable to intoxication are broad enough to encompass both the mistake and state of mind as a result of being drunk or intoxicated at the time. And remember Mr Tudjman was not drunk or drugged at the time. Onda, a mistaken state of mind, immediately approximately consequence on earlier drink or drug taking, so that even though the person concerned is not drunk or intoxicated at the time, the short term effects could be shown to have triggered subsequent episodes. DJ of Paranoia I'm sorry, Mr Touches case the drug induced psychosis. The alcohol induced psychosis on the paranoid state of mind. That presumably is what made him behave like this towards the hapless motorist was enough to deprive him of the defense even though he was neither drug nor drunk at the time. Does that mean that somebody with a long term mental health condition is deprived of the defense? Will we be reassured if you defend to find out? No, because go the court go on to say is that we repeat this conclusion does not extend to long term mental illness precipitated by alcohol or drug misuse. In the circumstances, we agree with the trial judge that the phrase attributable to intoxication is not confined to cases in which alcohol or drugs are still present in a defendant system. It is unnecessary for us to consider whether this analysis affects the decision. In another case, Harris. It's sufficient to underline that the potential significance of voluntary intoxication in the two cases differs well. Unfortunately for Mr Charges conviction was upheld. He received a 19 year extended sentence for attempted murder. But drug induced psychosis ease and the consequences of drug or alcohol addiction frequently manifest themselves in both the Magistrates own crown call in the Magistrates Court. It maybe there's a diversion and liaison report on these often flag up, drug induced psychosis. So if you're defending, you need to look at any mental health report that you've got at the time. Because if it's raising drug induced psychosis and the car that wants to run self defence, you're going to have to think carefully following tach, whether or not he can raise that or whether or not you're going to have to plead in the hope that the court might see the culpability is reduced. They may not do, however, and that's the difficulty with these types of cases. If you're prosecuting, then you're gonna want to use the mental health report and converted to some admissible form, perhaps getting the defense to agree it's Section 10 so that you can rebut the defense at trial. Two more cases back to the household, a Concept 2019 case of Cheesman, and now we're in a barracks in Cyprus, and we've got a fight between two squad days. This was a court martial. The defendant said that he was using self defense because his colleague was in his room, smashing the room up. And he believed him to be a trespass, so bizarre set of facts, but probably readily explainable by the fact that both spent time during the day drinking in the defendant's room. That was by concerns. The defendant left at some point when he came back the victim. For some reason, it locked himself in the defendant's room. So we're not looking at house, but we're looking at the equivalent, if you think of it as a dwelling. As the defendant returned, he heard noises coming from his room. He couldn't get in, but he thought that the victim was smashing up possessions, and when he finally forced his way into the room, he found that the room and the contents have been badly damaged. He picked up a knife, and he didn't stop the victim repeatedly on a trial, he argued self defense. He argued his reactions were reasonable because he was a householder and so he was entitled to use force short a grossly disproportionate. He believed his actions were reasonable because his former friends was not only a very large man, but of course, being a soldier was trained to kill. And so the court had to look at the householder defense on whether or not the defendant's belief that the victim was a trespasser would assist on what the court goes on to say. A paragraph 21 of the judgment is that in most cases where the householder defenses engaged, the question of whether the defendant believed the person concerned to be in the building as a trespass Oh, what cause no difficulty. That's simply because the defense for most frequently arise in the context of an intruder. Well, there is a reason cases of a burglar comes in then he's obviously a trespasser. But in other cases, the court says, which this is an example, it would be unnecessary for a jury to Gresser with questions of property law on the niceties of whether someone who started as an invitee became a trespasser. The defense is not directly concerned with whether someone was or was not a trespasser, but rather the defendant's belief, no doubt the clearer that it is that someone was a trespasser, the more readily a jury will not be troubled by the issue of whether or not the defendant did or did not hold the belief. So the jury here from the householder that he was awoken at three in the morning by a complete stranger in his bedroom. It's not going to be difficult to accept that the defendant believed that the intruder was a trespasser. But in Chase Mons case, his colleague had been invited in. They sat chatting and drinking most of the morning. He hasn't asked his friend to leave when he had left the room temporarily that it doesn't appear that he asked him to leave it all when he finally forced his way into the room. That's when he deployed self defense but went over the top. I'm so they go on to say that it's a judgment from the Lord Chief Justice showing how important this case wars. We accept the evidence of the opponents belief that Lance Corporal Lindley was in his room as a trespass. It was relatively thin, so they No, I don't think that he really believed that his former friend was a trespasser? No, the less we conclude that the judge had interpreted the statutory provisions in accordance with its meaning. The householder defense should have been left to the board. In other words, the equipment of a jury and courts martial terms. However, the conviction in this case wasn't unsafe because the defendant had gone well over the top. So those are the immediate self defense cases. But one final case before we finish and this is looking. But the defense under Section three of the Criminal Law Act 1967 on the right to use reasonable force to prevent crime. And it's the 2018 case of Wilkinson is the Wilkinson was a taxi driver, and he was convicted off false imprisonment and dangerous driving. He picked up a Channel four journalist. It was a cold day, and she asked him to put the heating on, but he couldn't because he said it was broken and he had to get it fixed. She has to be put out of the cow he wanted paying. She declined to pay because he hadn't take her to where she wanted to go, and she wanted to get out now he knocked terrain, and then he drove dangerously and took her back to the point right. He picked her up from He wouldn't let around to the car being locked her in. Hence the false imprisonment. He argued that he had a defense under Section three of the Criminal Law Act because she was committing a crime, namely Section three of the theft of bilking or, in common parlance, doing a runner without paying the Court of Appeal. Start with the point that a mistake of law cannot found a defense under Section 31 of the Criminal Law Act 1967 the drivers operated under the erroneous believe he was entitled to use force to stop her leaving without paying. But that, in fact, was not the law because she was not obliged to pay unless he took her to the destination, or he dropped her at some other point when affair would become agreed. But he didn't do either of those things and he wouldn't let her out of the cab. His belief that he had entitlement to use reasonable force to prevent her leaving without paying was founded on a misunderstanding of the law, so where a defendant has a belief. Looking at these cases together, you need to tease out, Is it a belief in a mistaken belief in law? Is a mistaken belief attributable to intoxication? Because neither of those will found self defense? Or is it simply a belief that was reasonable in all the circumstances and was honestly held? Even if it is a bit off the wall? So just a couple of other points to round off? Be aware of the burden of proof in self defense cases, the defendant is going to need to reduce some evidence the prosecution will want to discredit the defendants. Also, the force was excessive. All show that any belief is attributable to intoxication on the touchlines. All show that the force was grossly disproportionate on Cheeseman or Collins lines. If the defendant has no commented in interview, then there's the risk of the adverse inference on the horizon on that damage that it could do to his credibility by failing to mention at the time of questioning what his defense Waas may well do for him In some cases, let's imagine your client isn't going to be a dreadful witness. It may be that you confound your defense by cross examination and exacting concessions from prosecution witnesses. If you're defending as well, be careful not to make an issue of your character unless you can afford to. Prosecutors will want to be vigilant for the defendant, triggering Gateway F False Impression or Gateway G. But talking the character of a prosecution witness Gateway are false impression, Bite said, any time from caution prior to interview. So if the defendant makes out, for example, I'm not a violent man or I'm a reasonable man on his anti. She didn't show, but he definitely isn't. Then the prosecution can correct the false impression by pointing to the those anti C Eden's a defendant. Can Rees I'll from a false impression, have a look at Section 105 subsection three. But the Criminal Justice Act 2000 and three Gateway G also bites at any time from caution prior to interview. Be careful how you raise matters in a defense statement. If you're going to suggest that the victim was the attacker, the aggressor, they started it or anything else that is capable of imputing character, then the risk is that by putting it in something like a defense statement. You might be thought to trigger Gateway J or if you simply put it to a witness in cross exam, and you're likely to be triggering Gateway J. If your client is a good character or his form is ancient or it's for something completely different, like drink driving, all benefit fraud, then you may not be so bothered about the court knowing. But plainly he's got convictions for violence or other convictions, suggesting a short fuse section for the Public Order Act, for example, you probably don't want his form to go in. In the case off the Crown versus Lamma Letty Royce 2008 the Court of Appeal took the view that putting it to a witness or suggesting that the witness was the aggressor is enough to engage Gateway G. So what to do next? There's a problem. Question if you want to do that, and what I suggest you do is to collect these cases, open a folder on your laptop. All right, heart, label it Self defense 2019 and put all of the materials that come with this webinar into it and then download the case law. If you confined that, pop that in and you're always going to have an emergency self defense, where to find the law kit?
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