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Published: Fri, 02 Feb 2018
To what extent does the current law allow a householder to use fatal force against an intruder and is the current approach satisfactory?
The doctrine of self-defence is a general defence which is considered to have been ‘an appropriate course of action in the circumstances in which he found himself' carried out in the aim of reducing the risk of the individual becoming a victim of violence. In situations such as this, fatal force is accountable in order to avoid further damage on the defendant’s part. There are three situations in which force can be used; prevention of crime, defence of property, and of course self-defence which is found in common law. However, it is important to primarily understand whether or not the force exerted was acted upon good reason. Therefore, it may reduce the criminal liability from murder to manslaughter when it is felt that full punishment is not deserved due to the special nature of circumstances. Self defence takes both the subjective and objective approach. There are many elements within self-defence that need to be analysed and any flaws detected to be reformed. This essay will largely examine this doctrine in order to establish whether or not the ‘current approach is satisfactory’.
Necessity in terms of force may be seen as a positive element to the defendant because the necessity of the force is considered through the circumstances as they appeared to the defendant at the time. However, this may wider the availability of the defence too much. The danger that the defendant apprehends must be sufficiently specific or imminent to justify their actions, and of a nature which could not reasonably be met by more soothing means. It is not necessary for there to be a developing attack, the defendant can apprehend an attack. However, in some cases it is ‘possible that the force used might, with the benefit of hindsight, be considered disproportionate to the threat'. Lord Griffiths stated “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”. A concern that may be raised here is how far the principle of pre-emptive strikes can actually go.
The second limb includes the reasonableness of the force used. This may seem objective, but it is critical for the jury to put themselves in the circumstances which the defendant supposed (whether reasonably or not) to exist. This adds a subjective element. These ideas of objectivity and subjectivity are demonstrated in Palmer v R  and Whyte . In Palmer, Lord Morris said that “if a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken place”. This allows those to rely on the defence when they acted in the spare of the moment, and that at the time they generally believed it to be necessary. Lord Lane CJ in Whyte  said that “the jury should be reminded that the defendants state of mind and his view of the danger threatening him at the time of the incident, is to be taken into account. The test of reasonableness is not a purely objective test”. This, therefore, ensures that the defendant’s characteristics are considered. However mental or psychiatric problems cannot be. This is an advantage to the defendant as it is less limited. Then in R v Scarlett (1993) Beldam LJ inadvertently created the impression that the reasonable test was purely subjective. The defendant had used excessive force to evict a drunk from his pub, who fell down five steps, fatally striking his head and died. He was convicted of constructive manslaughter but this was quashed because of misdirection. Lord Beldham held that a jury ought not to convict “unless they are satisfied that the degree of force used was plainly more than was called for by the circumstances as he believed them to be” and “provided he believed the circumstances called for the degree of force used… even if his belief was unreasonable”.
However, excessive force in some circumstances, as found in R v Martin-a farmer convicted of murder for shooting a burglar caused a change within the way the law views self defence. The defendant lived alone on a farm and shot two men who had broken in after he had been plagued by burglars for years. He was convicted of murdering and wounding but appealed on a number of grounds, one of which was that psychiatric evidence had emerged after the trial to the effect that he suffered from a paranoid personality disorder with recurrent bouts of depression. This meant that he may have genuinely thought he was in an extremely dangerous situation, but his appeal was rejected on the basis of self-defence. This may be fair because he had actually killed one of the victims, so being mistaken is not justified. It has been made clear that psychiatric problems are not to be considered for self-defence, but instead was given diminished responsibility. However, Martin had claimed that he had experienced burglary for years and had lost faith in the police, who may have been ineffective. This, perhaps, should have been considered as received no protection after a long period of time after repeatedly being burgled. A point that may be arisen here is that he should have been given the self-defence as he may have felt that it was the last resort. Defending your property using reasonable force is permissible by law according to common law, and backed up by case law with the addition of “reasonable force”. The reasons for Tony Martin’s imprisonment were given as the actions taken were unreasonable. This is due to the shooting of the victim after the threat of life endangerment to the defendant had passed. The deceased was shot fleeing the premises. Shooting them in the back as opposed to shooting them on the way onto his property makes a huge difference. As we know, it is unacceptable to use fatal force once the danger is overcome. The main requirements are that the force must be necessary and the degree of the force used must be ‘proportionate to the threat encountered' which obviously is not what is found in this case. As we can see in this case, the ‘immediate threat to the person had passed' showing that although the law allows fatal force to be used in situations where immediate response is needed, some people take advantage of its legality and takes it one step further where it is not required. This can portray that the current approach is to a certain extent unsatisfactory as people undermine its actual intent. The one circumstance that needs examined in the Martin case is the courts unwillingness to take mental state into account. Under different circumstances a mental abnormality should be taken into account in the courts decision.
If in situations where the intruder is murdered such as this, the defence of provocation could be used in order to justify the cause of the action. Aristotle argues that “anger is a socially respectable emotion which may be a proper response to certain behaviour by others”. However T. Macklem argues that it is morally inappropriate to lose control and kill the person provoking. Furthermore, the defendant is not acting prospectively to avert threat, but is retaliating retrospectively. These two arguments demonstrate why the defence of provocation is only a partial defence. It is thought unfair to punish someone who could not control himself, and thus does not deserve full punishment when there was no sheer malice in the killing. However the Law Commission believes that the offender who intentionally kills realising his action involved a serious risk should be appropriately convicted of murder, and labelled ‘murderer'. The present law convicts of manslaughter instead of murder if the defence of provocation passes. Likewise, self defence could also be explained in this way. Although provocation is only available in murder cases, we could also relate this to the case of an intruder. A householder could kill in order to defend one self but at the same time kill due to the fact that provocation on behalf of the intruder was apparent. The subjective approach in provocation aims to find evidence that the defendant actually suffered loss of self-control. It does not have to be complete loss of self-control; just so long as the defendant was not able to control himself thus whether the anger was ‘uncontrollable’ rather than ‘uncontrolled'. This would indicate that provocation is an area where choice and control are significantly reduced, thus regarded as ‘moral involuntariness'.
The requirement of provocation is that the defendant suffers a “sudden and temporary loss of self-control”. It is thought that this defence is ‘user-friendly’ to men pleading provocation, because they are provoked quicker and react more violently than women, privileging men’s typical reactions. As in the case of Ahluwalia the defendant was repeatedly beaten and thus cumulatively provoked, but killed the deceased after a few hours of the last provocation. The defence argued that the reaction was ‘slow-burned’ but the law states that the defendant must act according to a “sudden and temporary loss of self-control” at the time of provocation. The interval of time between the (past) provocation and killing meant she had time to mediate the killing and thus the courts found it to be revengeful. Although in a different context, we could relate this case to the case of Martin due to the fact that he also acted out of anger and revenge; he was provoked by the burglars breaking in, Ahluwalia was provoked by constant beatings. And in the end, both found a way to take revenge. A recent case on provocation and self defence was Munir Hussain. This time however, the burglars ‘were threatening to kill his family’, and once they managed to flee, Hussain and his brother ran after them to take revenge. In the context of provocation, we could see that each case did not require fatal force to be used as the danger at that point had passed, illustrating the fact that the current approach is unsatisfactory as the main idea of fatal force is not taken into account. It is also said that ‘reasonable force in self-defence does not entitle citizens to exact private revenge on wrongdoers'
Although self defence itself carries criticisms, such as the fact that there is a fine line with what appears to be reasonable force in the circumstances; either side of the line has vastly different consequences. For example, if you’re charged with murder and plead self-defence then you either get acquitted or a life sentence. It’s all or nothing and this rests upon a very fine line. It is very hard to identify whether or not the intruder had the intention of attacking; if you reasonably believe an intruder is going to kill you, you can kill them first. Self defence allows for “the first blow”
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