Sample Undergraduate 2:1 Law PowerPoint

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Published: 05 Sep 2018

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Sample Undergraduate 2:1 Law Powerpoint

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Slide Notes

Reforming the law of private defence

Historically, private defences to crime had authority from the common law, permitting the use of reasonable force in self-defence and in the prevention of crime
The 2008 Criminal Justice and Immigration Act only sought to acknowledge these defences in the statutory sphere, as emphasized by s.76(9)
In determining whether a person’s use of force was reasonable, the Court considers whether the person’s actions were objectively reasonable in the circumstances as they subjectively believed them to be.
Then, the 2013 Crime and Courts Act, s.43 inserted s.76(5a) regarding householder cases.
Per s.76(5a), the defence was extended to cover circumstances in which a person’s use of force was objectively disproportionate, in the circumstances as they subjectively appreciated them
Despite that the House of Lords previously declined the opportunity to extend the defence to cover ‘excessive force’ in R v Clegg (1995), where a soldier shot at a retreating vehicle he believed was in use by terrorists, in fact killing a joyrider.
What was the impetus for this reform? As will be seen, this law strongly evidences the view that criminalization is frequently a strongly political action, and the response to a ‘moral panic’.

Slide Notes

Examining the defence

The new householder defence is not limitless though; householders are still not permitted to use objectively grossly disproportionate force in managing intruders.

Yet little guidance has emerged as to distinguishing disproportionate and grossly disproportionate.
To paraphrase Wolkind QC: I kick a criminal once: reasonable, twice: understandable, three times, forgivable, four times, debateable, five times, disproportionate…, eight times and it’s grossly disproportionate. “I don’t understand why sentencing should take place in the home”.
Does this give too much discretion to the Courts, at the high cost of legal certainty?

However, victims should not have to fear criminal sanction if they panic and overact when responding to an intruder

Green 1999: home cases are special due to the historical, cultural significance of the home as a place of safety,
Cf. Dennis 2000 asks though, can you then reasonably kill a 10 year old boy stealing apples from your kitchen?

Thus it seems the test for householders is much closer to a purely subjective test

Similar to the USA, where reasonable belief in danger is the only requirement for force
Can be highly controversial – e.g. ‘stand your ground’ in State of Florida v Zimmerman (2012)

Slide Notes

Response to a moral panic.

Cohen (1972) posits that criminalisation often occurs because of moral panics: widespread fears of something evil fundamentally detrimental to societal values.
Dobinson & Elliott 2014. The reform was “the product of significant policy-driven lobbying and several high-profile cases”.
R v Hussain (2010) – two men prosecuted for chasing and severely beating a violent burglar in revenge. Public outcry, many called for merciful sentences.
R v Martin (2002) – a farmer shot indiscriminately at burglars

highly-publicised

Yet, per the CPS, only 11 cases between 1990 and 2005 where householders were prosecuted for disproportionate force, including a case where a man waited for a burglar, beat him, tied him up, threw him in a pit and set him on fire.

Thus was the prior law really failing?

The Daily Telegraph campaigned to strong popular support – 79% favoured reform
Miller 2013: “the media [paints].. all invaders of homes as being violent psychopaths”. Yet really, s.76(5a) constitutes a legal licence to kill.

Leverick 2008: most want to escape without any contact from the homeowner

Fundamentally, s.76(5a) appears to be done for symbolic importance

Introducing new criminal law is an easy way for politicians to show they are ‘doing something’

Slide Notes

Extra-judicial punishment?

Some commentators contend s.76(5a) amounts to permitting extra-judicial punishment

For instance, in R v Hussain (2010), ought it not best for the legal system to determine the appropriate punishment for the burglar, rather than his victims inflicting brain injuries?
The media painted the legal system as more favourable to the burglar who had intruded Hussain’s home and threatened his family, rather than the Hussain brothers, seemingly causing a moral panic

Wolkind QC contends: encourages vigilantism and ‘state-sponsored revenge’
We ought trust police and prosecutorial discretion

Not all home defenders are even prosecuted, e.g. Peter Flanagan

Mendelle QC 2010 : s.76(5a) effectively ‘sanctioned extrajudicial execution… for an offence, burglary, that carries a maximum of 14 years”.

Further: “the law should always encourage people to be reasonable… to be proportionate”.
Also, may encourage burglars to carry weapons/use pre-emptive force

Leverick 2002 questions where one may find justice for an innocent person mistaken as a home invader under such laws

High-profile South African case of Oscar Pistorious

Miller 2013 compellingly argues the UK is becoming more extreme and more similar to South African law on self-defence which allows killing in self-defence for protection of property

Slide Notes

The fundamental right to human life

Under the European Convention of Human Rights and the 1998 Human Rights Act, every person has an inalienable right to life.
Per Art.2(2) – no more force than is absolutely necessary may be used which results in the deprivation of life

Leverick 2002: killing due to mistaken belief without reasonable foundation is not ‘absolutely necessary’
Stewart v UK (1984) – Commission determined Art.2(2) did apply to self-defence

Subsequently, it can be compellingly argued that s.76(5a) exists in significant juxtaposition to Art.2
Andronicou (1998) – Cypriot MMAD officers acted, taking measures “which they honestly and reasonably believed were necessary”, per European Court.

Leverick 2002 points out that the Court and Commission have ‘consistently held’ that self-defence with mistaken belief must be ‘for good reasons’, per judgments in McCann, Andronicou, Gül, inter alia.
Academic heavy-weight Ashworth also points to this as proof of English law contravening the ECHR.
Nonetheless, both academics consider it seems unlikely that the ECHR will assert this view.

Particularly unlikely in light of ‘Brexit’

Human Rights organisation, ‘Liberty’ described s.76(5a) as ‘grim, head-line chasing at its very worst’ in 2013 report for the House of Commons.

Slide Notes

Concluding Remarks

Dobinson & Elliott 2014 seem correct in their assertion that s.76(5a) is “fundamentally flawed”
The poorly considered consequence of a media-fuelled moral panic intended to fill a lacuna that did not really exist

Ashworth makes the measured observation that ‘pressure on politicians’ means that delays for the sake of ‘great and considered responses… may invite criticisms of indecision and procrastination’.

It remains to be seen where the Courts will draw the line

On one hand, an area sorely in need of clarification and guidance as to where the line is drawn between disproportionate and grossly disproportionate
Yet, cases remain very rare, so it may be a long wait and legal certainty suffers in the interim

Thus the law in this regard has a very uneasy position in relation to human rights
David Cameron, notoriously commented when ‘a burglar steps over your threshold… they leave their human rights outside’.

Popular support for the notion that the intruder is committing a criminal act and thus is undeserving of protection
But this is not how the legal system works; even criminals have rights, especially fundamental ones

S.76(5a) profoundly undermines the purpose of the Criminal Justice System

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