Self defence is a complete defence of justification in cases involving all levels of assault. At common law the defence off self-defence operates in three spheres. It allows a person to use reasonable force to:
(a) Defend himself from an attack
(b) Prevent an attack on another person,
(c) Defend his property
(a) Defend himself from an attack
(b) Prevent an attack on another person,
(c) Defend his property
Right to defend yourself
Section 23 of The Firearms Act clearly permits the holder of a licensed
firearm to discharge said firearm within or about a public place, not only in
the lawful protection of his own person or property, but also in the lawful
protection of the person or property of others.
It
is instructive to note, however, that the protection of life or property has to
be lawful. The case law appreciates that the licensed firearm holder who
discharges his firearm to protect life or property may not have had time to make entirely rational decisions, given all
the circumstances of the particular case; however, even allowing for mistakes
made in a crisis, the amount of force must be proportionate and reasonable.
The
general principle is that the law allows only reasonable force to be used in
the circumstances and, what is reasonable is to be judged in the light of the
circumstances as the accused believed them to be (whether reasonable or not).
It is important to note:
a) A person who is being attacked should not be expected to
"weigh to a nicety the exact measure of his necessary
defensive action".
a) A person who is being attacked should not be expected to
"weigh to a nicety the exact measure of his necessary
defensive action".
b) If the jury thought that in the heat of the moment the defendant did what he honestly and instinctively thought was necessary then that would be strong evidence that only reasonable defensive action had been taken.
c)A jury will be told that the defence of self-defence will only fail if the prosecution show beyond reasonable doubt that what the accused did was not by way of self-defence.
Excessive force
The
issue of a mistake as to the amount of force necessary was considered by the courts and the law is: "They ought not to convict him
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, he was
not to be convicted even if his belief
was unreasonable."
No duty to retreat
There
is no rule of law that a person attacked is bound to run away if he can. A
demonstration by the defendant that at the time he did not want to fight is no
doubt, the best evidence that he was acting reasonably and in good faith in
self-defence; but it is no more than that. A person may in some circumstances
act without temporising, disengaging or withdrawing; and he should have a good
defence
It
is therefore, a matter for the jury to decide as to whether the defendant acted
reasonably in standing his ground to defend himself, or whether the reasonable
man would have taken the opportunity to run away.
It
is not absolutely necessary that the defendant be attacked first. As Lord
Griffith said in Beckford v R [1988] AC 130: "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."
Mistake as to Self- Defence
It
is possible that a defendant might mistakenly believe himself to be threatened
or might mistakenly believe that an offence is being committed by another
person,
it would appear that such a defendant would be entitled to be judged on the
facts as he honestly believed them to be, and hence would be permitted to use a
degree of force that was reasonable in the context of what he perceived to be
happening.
In
a case of self-defence, where self-defence or the prevention of crime is
concerned, if the jury came to the conclusion that the defendant believed, or
may have believed, that he was being attacked or that a crime was being
committed, and that force was necessary to protect himself or to prevent the
crime, then the prosecution have not proved their case.
If
however the defendant's alleged belief was mistaken and if the mistake was an
unreasonable one, that may be a powerful reason for coming to the conclusion
that the belief was not honestly held and should be rejected.
Even
if the jury came to the conclusion that the mistake was an unreasonable one, if
the defendant may genuinely have been labouring under it, he is entitled to
rely upon it.
The reality of self -defence in a murder charge
1) It is very difficult for juries to accept this defence in cases where the person who is harmed/killed does not have a weapon or is not armed.
2) The option of manslaughter is often left to the jury which states that the accused did not have the intent to take a life or cause greivous bodily harm (no malice aforethought) but the killing was unlawful.
2) Licensed firearm holders are not automatically protected from murder or manslaughter charges as using a weapon may appear as using excessive force and will be interpreted as being unlawful by the jury.
3) Licensed firearm holders have a great responsibility, and should think twice about discharging their weapon, if under threat, even though the law makes provision for their subjective mind or what they perceive.
June 3, 2016
Great article Kim.
ReplyDeleteWhat do you think about those who propose gun control or confiscation laws as the solution to the mounting attacks on persons worldwide?
I personally think that responsible defense is a better answer. Evil people will always find a way to do evil and good persons need to be able to defend themselves and others when needed.
In the Jamaican context, I believe we have relatively good, gun control legislation. The issue is with the prevalence of illegal firearms and easy access to them. Law abiding citizens need access to firearms to protect themselves in a context where the police simply cannot do enough. Govt needs to tackle this issue.
DeleteIn the US context their Constitutional right to bear arms was drafted in a context of war & conquests, and not 4 easy access to perpetuate crime against law-abiding citizens. With the easy access to firearms- certain safeguards need to be put in place- more backgrounds, restrictions on access to high powered weapons and restrictions on access to more deadly rounds metal jacket vs hollow point- in Jamaica you need a special permit for certain weapons, for ex.
Scenario: A license firearm holder realizes that someone grabs his bag and is getting away with millions of dollars. Why can't he shoot that man who is running away with his property.
ReplyDeleteChapter 3 of the Firearm Training manual is instructive. It speaks to 'Security Issues and Mindset', it states "No matter how confident you are in your skill with a firearm, it is always better - legally, emotionally and practically - to deter or evade attack rather than to have to use legal force." It further states that "You have no obligation to get into a confrontation with another person. In fact, you should do everything in your power to avoid confrontations, and just because you are armed doesn't mean you must confront anyone at gunpoint."
DeleteRobbery is an offence and citizens do have the power to try to apprehend a fleeing felon. To be safe, lower weapon to legs and try to maim. A man shot in the back fleeing from a licensed fireamrm holder may not get the mercy of the DPP who may choose to prosecute depending on the circumstances surrounding each case.
If prosecuted, the jury will have to contemplate if the holder had the honest belief that the property was in jeapordy and that he was in fear. He is entitled to protect it, and the court will consider all the circumstances.
Now a jury may come to the conclusion that the felon was fleeing and the force used was excessive as the person was no longer in imminent danger- so again don't shoot to kill
Scenario: A license firearm holder realizes that someone grabs his bag and is getting away with millions of dollars. Why can't he shoot that man who is running away with his property.
ReplyDelete