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Self-defence and reasonable force
A person may use reasonable force to defend themselves or others, protect property or prevent crime. The test is whether they genuinely believed force was needed, and whether the force used was reasonable in the circumstances as they believed them to be (Criminal Justice and Immigration Act 2008 s.76).
The two-stage test
Self-defence is a complete defence to any offence involving force, including murder. Section 76 of the Criminal Justice and Immigration Act 2008 applies to self-defence, defence of another, defence of property and the prevention of crime:
- Did the defendant genuinely believe it was necessary to use force? The belief is judged on the facts as the defendant honestly believed them to be, even if mistaken, and even if the mistake was unreasonable, although unreasonableness is relevant to whether the belief was genuine (R v Gladstone Williams (1984); s.76(4)). A mistaken belief caused by voluntary intoxication cannot be relied on (s.76(5)).
- Was the force used reasonable in the circumstances as the defendant believed them to be? This is an objective question for the jury. Disproportionate force is not reasonable (s.76(6)). A person defending themselves cannot be expected to weigh precisely the exact measure of force in the heat of the moment, and acting honestly and instinctively is strong evidence of reasonableness (s.76(7)).
If the force was excessive, the defence fails completely; there is no partial defence of excessive self-defence (R v Clegg [1995]).
Householders
In a householder case, force that was grossly disproportionate can never be reasonable (s.76(5A)). Force that was disproportionate but not grossly so may still be reasonable, depending on all the circumstances (R (Collins) v Secretary of State for Justice [2016]; R v Ray [2017]). This applies only where the defendant was inside a dwelling (or forces accommodation), was not a trespasser, and believed the other person was a trespasser. It does not cover confrontations in a garden or the street.
Burden of proof
The defendant does not have to prove self-defence. Once there is evidence raising it, the prosecution must disprove it so the jury is sure.
Retreat and pre-emptive strikes
There is no duty to retreat, though the possibility of retreating is a factor (s.76(6A)). A person does not have to wait to be struck first if they honestly believe an attack is imminent (Beckford v R [1988]).
In practice
What the defendant believed at the time is the heart of the defence. The account given in interview matters: failing to mention self-defence when questioned can lead to an adverse inference later (Criminal Justice and Public Order Act 1994 s.34; see Police interviews under caution and the right to silence).
Authorities: Criminal Justice and Immigration Act 2008 s.76; Criminal Law Act 1967 s.3; R v Gladstone Williams (1984) 78 Cr App R 276; R v Clegg [1995] 1 AC 482; R (Collins) v Secretary of State for Justice [2016] EWHC 33 (Admin); R v Ray [2017] EWCA Crim 1391; Beckford v R [1988] AC 130; Criminal Justice and Public Order Act 1994 s.34; CPS legal guidance, Self-Defence and the Prevention of Crime