women carrying a knife with intent to maim

June 5, 2013 Self Defence Must Be Proportionate

In all instances of self defence, you may only use reasonable and not excessive force in self defence.
When using defensive force it must be proportionate levels of force to match the threat.

Self defence can be used when under duress for the majority crimes, except murder, attempted murder, being an accessory to murder and treason involving the death of the Sovereign. In order to prove duress, you must prove you were induced by threats of death or serious physical injury to either yourself or your family and that you reasonably believed would be carried out and that also that “a sober person of reasonable firmness, sharing the characteristics of the accused” and would have responded in the same way Examples of someone’s characteristics that might be relevant are age, gender, pregnancy, physical disability, mental illness, and sexuality.

Using duress as self defence is limited. You must not have foregone some safe avenue of escape any duress must have been an order to do something specific, so that you cannot be threatened with harm to repay money and then choose to rob a bank to repay it, because that choice implies free will.

Where duress is used as a self defence it must relate to the situation where a person commits an offence to avoid death or serious injury to himself or another when threatened by a third party, the necessity of self defence in the circumstances must be related to the situation where a person commits an offence to avoid harm which would arise from circumstances in which you or another are placed. Duress operates as an excuse but necessity operates as a justification, rendering the defendant’s conduct lawful. The common elements are (1) an act is done to prevent a greater evil (2) the evil must be directed to the defendant or someone for who he is responsible (3) the act must have been a proportionate response to the threat. But only necessity is a potential defence for murder.

The BBC recently highlighted a case of necessity where The Mignotte, sailing from Southampton to Sydney, sank. Three crew members and a cabin boy were stranded on a raft. They were starving and the cabin boy close to death. Driven to extreme hunger, the crew killed and ate the cabin boy. They survived and were rescued by the Montezuma, aptly named after the cannibal king of the Aztec’s, but were put on trial for murder. They argued it was necessary to kill the cabin boy to preserve their own lives. Lord Coleridge, expressing immense disapproval, ruled, “to preserve one’s life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it.” The men were sentenced to hang, but public opinion, especially among seafarers, was outraged and overwhelmingly supportive of the crew’s right to preserve their own lives. In the end, the Crown commuted their sentences to six months.

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