The defence of self-defence - Essay Example

?Summary Ross should not be found guilty of the murder of Samantha. The defence of self-defence should have been put to the jury. Self-defence is a part of the doctrine of private defence in the English law. Self-defence is defined as use of reasonable force to protect oneself from an unjust threat. Self-defence is a complete defence unlike loss of control. An individual is allowed in the eyes of the statutory defence to make use of reasonable force in an attempt to avoid committing a crime in such situations in which the individual cannot use the common law to avail himself. It is for the jury to decide as ordinary members of the community what exactly can be qualified as reasonable force in a certain case considering its individualistic facts. Ross is physically a very strong man, and he needed to protect himself not only against the first attempt of Samantha to injure or kill him but also her subsequent attempts. He needed to use at least as much force that would help him achieve that. His use of force did not instantly cause the death of Samantha. Therefore, Ross is innocent in the case of Samantha’s death. The defence of self-defence In the case under consideration, although Ross may be blamed for killing David, yet the blame that has been placed on him for killing Samantha is not right because what he did was an attempt to defend himself from the harm that Samantha was just about to cause him with her golf club. Self-defence makes a very important part of the English law’s doctrine of private defence. Ross should not be found guilty of the murder of Samantha and the defence of self-defence should have been put to the jury. Self-defence is a part of the doctrine of private defence in the English law according to which an individual may act in ways that are deemed illegal otherwise in an attempt to prevent the causation of injury to himself or others. Self-defence may also be done to prevent the crime since one assumes the very right of providing others with protection and safety as one does for oneself. Self-defence originates in the Criminal Law Act of 1967 as well as the common law. English law defines self-defence as use of reasonable force to protect oneself from an unjust threat. Self-defence is used not as an excuse but as a justification since the defence tends to emphasize that the actions could not be classified as crime at all. English law has self-defence as a complete defence of justification in any case that includes any kind of assault. This makes self-defence unlike the loss of control that applies just for the mitigation of what would be classified as murder to manslaughter otherwise. Unlike loss of control, self-defence is a complete defence. Because of this completeness, the interpretation of self-defence is done in a comparatively conservative manner in order to avoid the development of a justification standard that is too generous. Increasingly forgiving defences provide the cynical defendants with greater incentives of the defence’s exploitation in their planning of the use of violence as well as when they have to make an explanation of the matters following the incident. Jury in the cases involving self-defence are entitled to consider the defendant’s physical characteristics, though such evidence does not have much probative value in reaching the decision if excessive force was implied. According to the principle of general common law, “A defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and his property. It must be reasonable” (Beckford v R (1988) 1 AC 130 cited in Smart Self Defence, 2011). In the case under consideration, Ross is a heavy man who is more than six feet in height whereas Samantha is petite with a total height of only five feet and three inches. Ross’ above average physical structure and excessive strength in comparison to Samantha along with Samantha’s below average height may give Ross some advantage in the eyes of law since not only Ross was too powerful, but also Samantha was too petite in front of him to stand his force. Statutory defence allows an individual to make use of reasonable force to avoid committing a crime in such situations in which the individual cannot use the common law to avail himself. For instance, when an individual uses force to stop another individual from supplying a controlled drug, the statutory defence applies because the common law defence cannot be relied upon in such cases. “Renouf [1986] 2 All ER 449” (Baskind, 2013) provides an example of the statutory defence in which, the accused pushed a vehicle off the road and was thus charged with reckless driving. In addition, the accused rammed into the car after being assaulted and getting his car damaged by the occupants of the other car. According to the decision of the Court of Appeal, the actions of the accused were meant to help in the execution of lawful arrest of the other car’s occupants. Nevertheless, whether the amount of force used by the accused was reasonable or not was a problem that the jury was required to resolve. Critics might argue that even if Ross had the authority for self-defence, it should have stopped at the point of defending himself from the attack inflicted upon him by Samantha. All such doubts regarding the authority to use self-defence are addressed by these words, “…where a forcible and violent felony is attempted upon the person of another, the party assaulted, or his servant, or any other person present, is entitled to repel force by force, and, if necessary, to kill the aggressor…” (Parker cited in Baskind, 2013). It is, without doubt, permissible in the eyes of law to use reasonable force not only to save oneself in risky situations but also someone else from the threat of attack. There are several cases in where the use of force has led to death. One such cases is of “Rose (1883) 15 Cox CC 540 [in which] the accused was acquitted of murdering his father, whom he shot dead, whilst the father was launching a murderous attack on the accused's mother” (Baskind, 2013). There is difference of opinions with respect to what exactly a reasonable force it and how can it be gauged. Nevertheless, the defendant in any case does no assume the right of identifying the meaning of reasonable force because all defendants tend to say that their act of protecting themselves or others from the harm was quite reasonable and therefore they should not be held guilty of any serious consequences that happened as a result of the use of force. As the community’s ordinary members, it is the responsibility of the jury to decide how much force should be considered reasonable according to the severity of the individual cases. That should take this fact into consideration that the defendant was under the imminent attack’s pressure and thus might not have enough time to think rationally and make informed decision about how much force could be considered as reasonable in the situation at hand. The test needs to balance a reasonable person’s objective standard by attributing the defendant’s subjective knowledge or at least some part of it even if mistaken including the defendant’s personal thoughts, beliefs, and opinions about the case. Nevertheless, it cannot be denied that even if the mistakes made in the situation of crisis are allowed for, the force that is used must be reasonable as well as appropriate considering the value of interests that are being served and also the injury or harm that is likely to result from the forces use. Palmer v The Queen is an Australian case that provides the basis of the class test that. This case was appealed in the year 1971 to the Privy Council: “The defence of self-defence is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. ...Only common sense is needed for its understanding. 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 may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. ...It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation…” (Molan, 2012). One last point of consideration with respect to the case under consideration is that what would Ross have done had he not attacked Samantha. Ross as a sensible person could not have waited for Samantha to reach him with the golf club and blow away his eyes, head, or cause serious injuries to one or more features of his face or parts of his body. There was no reasonable justification he had to keep waiting for Samantha to approach him with the golf club. In the heat of the circumstances, all he could decide was to do whatever it takes to prevent the injury that he could clearly foresee in Samantha’s attempt to hit him with the golf club. He already knew that David had been killed and knowing that, could easily gauge how seriously agitated Samantha might have been. It was too little a time for Ross to decide how much force could he reasonably use to just protect himself and not cause any harm to Samantha. Besides, if he did manage to cause no harm to Samantha and just save himself from her attempt to injure him, he might as well have been exposed to the risk of another serious hitting attempt from Samantha when the first would have been unsuccessful. Therefore, it was also necessary for Ross to use at least this much force that would prevent Samantha from not only not injuring Ross with the golf club for the first time, as well as subsequently. Considering all these facts as well as the fact that Ross was a heavy man over six feet tall, use of the amount of force that would cause Samantha to flung over to the mahogany table was quite reasonable. “A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike” (Griffith cited in Smart Self Defence, 2011). Concluding, the defence of self-defence should have been put to the jury because what Ross did was in self-defence. Had Ross not caught Samantha and had he not flung her against the mahogany table, Samantha might have killed Ross with the golf club as she was deliberately carrying it to hit Ross with it in order to prevent him from causing any more harm to David. In the fraction of a second, all Ross could decide was to protect himself from the golf club that Samantha was carrying. Therefore, he flung her against the table. The fact that Samantha was knocked unconscious was the result of her collision with the mahogany table. Samantha did not even die instantly rather it took her one day to die from that time into the hospital. In addition to that, the fact that Ross is over six feet tall and is a heavy man needs to be taken into consideration as well. These facts suggest that Ross is innocent at least as far as Samantha’s death is concerned. Self-defence is a complete defence and many lawyers, legal advisors, and judges have approved of the use of reasonable force to prevent oneself as well as others from the risk of any kind of harm. In light of these facts, Ross should be considered innocent in the death of Samantha. References: Baskind, E 2013, Law relating to self defence, [Online] Available at http://www.bsdgb.co.uk/index.php?Information:Law_Relating_to_Self_Defence [accessed: 5 February 2013]. Molan, M 2012, Cases & Materials on Criminal Law: Fourth Edition, Routledge. Smart Self Defence 2011, Self Defence and the Law, [Online] Available at http://www.smartselfdefence.org/self-defence-law.html [accessed: 5 February 2013]. Read More