Self-defence – A guide

What is Self-Defence?

Self-defence allows reasonable force to be used in order to defend either yourself or another person, or to defend your property. A person may also use reasonable force in the circumstances, for the prevention of crime, or in the lawful arrest of an offender.

Is self-defence a defence to a criminal allegation?

If successful, self-defence is a complete defence to all criminal allegations, other than sexual offences. It can apply to all other offences in which force has been used. If a defendant is found to have acted in self-defence, they would be completely acquitted.

Burden of proof

The burden of proof lies with the prosecution, who must prove, beyond reasonable doubt, that the defendant’s use of force was not a lawful act of self-defence. It is not for the defendant to prove their actions were in self-defence. All the defence need to do is to raise the issue of self-defence by some evidence.

Defence

The force used must be reasonable. This should be assessed by asking two questions.

• Firstly, was the use of force necessary in the circumstances?
• Secondly, was the force used reasonable in the circumstances?

Both of these questions are to be answered on the basis of the facts as the defendant honestly believed them to be.

A defendant cannot rely on self-defence where there was a mistake of fact, which was due to the defendant being intoxicated.

Pre-emptive strikes may be permitted. This means a person does not have to wait to be struck first before they can defend themselves.

Failure to retreat when attacked, when it is possible and safe to do so, is not conclusive evidence that a person was not acting in self-defence. It is however a factor that will be taken into account.

What is reasonable force?

The question of whether the degree of force used by the defendant was reasonable in the circumstances is to be decided by considering the circumstances as the defendant believed them to be.

If it is established that the defendant held a genuine belief about the circumstances, they may rely on that belief to establish if the force used was reasonable, whether or not it was a mistaken belief. Therefore, the focus is on whether the belief was an honest one, not whether it was reasonable. However, the more unreasonable the belief, the less likely it is that the court would accept it was honestly held by the defendant.

Self-Defence in householder cases

There has been concern from the public about the stance of the law in relation to whether householders can defend themselves when confronted by an intruder in their own home.

If householders have done what they honestly and instinctively thought necessary at the time, this is strong evidence for the argument that they acted lawfully and in self-defence. This is still the case if a householder were to use something to hand as a weapon.

The more extreme the circumstances and the more fear felt, the more force one should be able to use lawfully in self-defence.

A householder does not have to wait to be attacked. They are able to use defensive force, if they are in their own home and in fear for themselves or others. However, the force used cannot be grossly disproportionate. This means an action that was ‘over the top’ or perhaps done purely for revenge. The force used must be reasonable in the circumstances as the householder believes them to be. It is worth noting that the force used may subsequently be considered disproportionate. However, if the householder’s actions were done in the heat of the moment and they seemed reasonable at the time, the law is designed to give that householder the benefit of the doubt.

How can Olliers help?

Should you find yourself in a position whereby you have acted under the threat of another person and have been charged with a criminal offence, Olliers may be able to assist in exploring any potential defences available, including that of self-defence.

If you require a specialist criminal defence lawyer please contact us by telephone on 0161 8341515 (Manchester) or 020 38836790 (London), by email to info@olliers.com or complete the form below to send us a message.