Understanding Self Defence from a Legal Standpoint

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

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".

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

JLP vs PNP- This “little” issue of a referendum

A referendum was held in Jamaica  on 19 September 1961. Voters were asked "Should Jamaica remain in the Federation of the West Indies?" The result was 54.1% voting "no", resulting in the country leaving the federation and its dissolution in 1962. Voter turnout was 61.5%.

Let us place this discussion in context. Back in 1961, Bustamante opposed Federation as it appeared that T&T had too much leverage and Jamaica would be better off becoming Independent. Well we all know the result, that is why we became independent in 1962, even though Jamaica's first elections was held on December 12, 1944.  Federation failed then as the Caribbean nations were not on the same page, however Regional Integration is not to be dismissed because of the state of affairs then, which does not necessarily exist now. Fast-forward 54 years and our Opposition Leader is boasting that he is  “a Nationalist….who does not come from the school of those who chase after a fleeting and elusive dream called Integration.”

How bad really is integration, whether it be purely economic? The European Union, The North American Free Trade Agreement, Association of SouthEast Asian Nations, The North American Free Trade Agreement, Union of South American Nations are some examples currently in place.

We are too small to survive on our own and collaboration with like-minded states in the same geographical vicinity has the potential to strengthen our economic voice and position in the free world. Opportunities exist not only in the English-Speaking Caribbean but in our neighbouring Spanish, French and Dutch counterparts, whose market we are unable to penetrate thus contributing to the limiting of our growth and reach.

But I digress, so focusing  on the bone of contention currently is the Caribbean Court of Justice vs Privy Council as our final Court of Appeal, there is a lot of hulla-balloo whether a Referendum should be put to the pople. Reference is made to a covert agenda, and I am curious to know what then is the opposition’s agenda, as I am of the view that both sides need to come together and not push a partisan agenda just because one’s predeccesors promulgated a particular viewpoint. Times have changed, our ecomonic standing has changed, Jamaica needs a savior. That savior is not IMF, the people who are in positions of power need to think and act rationally and put the people first.

Should a referendum be put to the people? The PNP is not for it, and I wouldn’t expect them to be, in light of the last referendum where our past Premier Norman Manley stepped down after losing the not-so- long-after called elections. I believe they are wary of this precedent especially since we are so far into the election term and everyone on both sides of the fence are on their “P’s and Q’s” trying to solidify party votes.

The JLP on the other hand through a statement of their leader has trivialized the issue and has said that if it is to be considered, it should be put to the people. I wholeheartedly agree with putting it to the people but not the trivialization of the issue. A public-education campaign is not bad , educating the populace on the issues so that they can make an informed decision. But announcing a Grand Referendum is ludicrous if that step is not taken. The voters will simply vote along party lines, and we all know that the voter turnout which will not be representative of the true population, nor will it reflect the true wishes of the people.

To “referend” or not to “referend” is the question

Are you guilty of Rape?

In Jamaica, Rape is when a male has sexual intercourse with a female without her consent with the intention to have sex with her without her consent or with indifference or recklessness, meaning, not caring whether or not she consents …” There are thus three essential elements under Section 3 (1) of the Sexual Offences Act  (SOA) for a person to be convicted of rape

1) Sexual intercourse must take place (This definition of rape does not include anal or oral penetration or penetration with an object other than a penis)

2) No consent- The female does not agree to engage in that activity

3) The Man is indifferent or does not care to ensure that the female consents ( A man cannot be “raped’ either by a man or woman under Jamaican Law)

Rape is a crime of basic intent, and based on the elements of the offence, one has to look at the accused man’s subjective intention, to see whether at the time of the incident, he HONESTLY and GENUINELY believed that the woman was consenting to the act. This is a very important point, because even though a woman may say she did not give her consent the court will look at the circumstances which led up to the act.

Coitus would also be classified as rape, where a woman believed that she was having sex with a particular person but through  pretense, or fraudulent concealment of identity, another man is the one who benefits from this mistaken consent.

It would be clear then that if held up at gun point, or if a female was threatened that there would be no consent. Obvious resistance and objections by the female are indicators as well, which can be used to show that a reasonable man could not have believed that  the female wanted coitus to occur.

The line becomes blurry when  persons are in a relationship compared with a stranger-encounter type situation, where the “He-said vs She-Said” scenario arises with little or no evidence to prove that a rape did or did not occur. There is an offence of Marital Rape detailed in Section 5 of the SOA, however it is best for males to take extreme care when engaging in sexual activity, even with their wives.

The Penalty if found guilty, is a maximum sentence of life imprisonment with a minimum term of 15 years.  There are however mitigating factors which may reduce the years of a conviction. Some considerations are the age of the offender, his general circumstances, his previous good character, his mental state at the time of the offence, the actual circumstances of the offence and a plea of guilty.

Being charged with rape can have debilitating impact on a person’s life as even if found innocent, there is often a stigma attached. Word to the wise: Think and ensure that there is consent before engaging in sexual activity or else you may be guilty of rape.

Kymberli Whittaker | BA, LLB (Hons)

Attorney-at-Law

Kingston | Jamaica

( Tel: +1(876)378-6774

* Email: kwhittaker@whitewhittaker.com

8 Website: www.whitewhittaker.com