The court considered the effect upon the common law concept of self-defence of the statutory intervention made by section 76 of the Criminal Justice and Immigration Act 2008.
Held: It was not the purpose of the section to change the common law but to specify in statutory form some of the requirements upon a tribunal considering self-defence.
Hughes LJ made it clear that although the court intended to make some general observations it could not provide a comprehensive survey of the whole of the law of self-defence so as to deal with the exigencies of all cases. He described ‘the basic building blocks’ of the large proportion of cases in which self-defence is raised. The first stage of the jury’s consideration is to decide what happened to cause the defendant to use the violence he did. The facts must be established by application of the criminal burden and standard of proof. Second, if the defendant claims that something happened which caused him to act as he did, but the jury find it did not, the jury must resolve the question whether the defendant genuinely believed in the circumstances he asserted. If he did then the jury must judge his conduct against the circumstances as he honestly believed them to be, unless his erroneous belief was the result of voluntarily taken drink or drugs. The third stage of the analysis is: ‘ Once it has thus been decided on what factual basis the defendant’s actions are to be judged, either because they are the things that actually happened and he knew them or because he genuinely believed in them even if they did not occur, then the remaining and critical question for the jury is: was his response reasonable, or proportionate (which means the same thing)? Was it reasonable (or proportionate) in all the circumstances? Unlike the earlier stages which may involve the belief of the defendant being the governing factor, the reasonableness of his response on the assumed basis of fact is a test solely for the jury and not for him. In resolving it the jury must usually take into consideration what are often referred to as the ‘agony of the moment’ factors. That means that the jury must be reminded when it rises, as it very often does, that there is in a confrontation no opportunity for the kind of hindsight or debate which can take place months afterwards in court. The defendant must act on the instant, at any rate in a large number of cases. If he does so, and does no more than seems honestly and instinctively to be necessary, that is itself strong evidence that it was reasonable. It is strong evidence, not conclusive evidence. Whilst the jury’s attention must be directed to these factors if they arise, the jury must also be made to understand that the decision of what is a reasonable response is not made by the defendant, it is made by the jury. We should perhaps add that ‘in all the circumstances’ means what it says. There can be no exhaustive catalogue of the events, human reactions and other circumstances which may affect the reasonableness or proportionality of what the defendant did. That is explicitly recognised by section 76 (8).’
Judges:
Hughes LJ, VP, Owen and Roderick Evans JJ
Citations:
[2010] EWCA Crim 2514, [2011] Crim LR 393
Links:
Statutes:
Criminal Justice and Immigration Act 2008 76
Jurisdiction:
England and Wales
Cited by:
Cited – Press and Another v Regina CACD 24-Oct-2013
Three defendants appealed against their convictions of assault. One defendant argued that the court did not direct the jury as to the effect of intoxication and/or post-traumatic stress disorder upon the issue of intent, and as to whether and to . .
Lists of cited by and citing cases may be incomplete.
Crime
Updated: 27 August 2022; Ref: scu.426486