Court of Appeal
| DOI | 10.1177/002201838504900402 |
| Date | 01 November 1985 |
| Published date | 01 November 1985 |
| Subject Matter | Article |
COURT
OF
APPEAL
SELF-DEFENCE-NEED
TO DEMONSTRATE UNWILLINGNESS TO
FIGHT
R. v. Bird
For
a
plea
of self-defence to succeed, is it necessary
that
the
defendant
retreated
or
otherwise
manifested
an unwillingness to
engage
in physical violence? Clarification on this
question
has now
been
provided
by
the
Court
of
Appeal
in R. v. Bird [1985] 1
W.L.R.
816.
The
case involved a
charge
of unlawful wounding
contrary
to
section 20
of
the
Offences
Against
the
Person
Act
1861.
Although
the
facts
were
not
entirely
undisputed,
essentially
the
charge
arose
out
of
an incident at the
appellant's
seventeenth
birthday
party
when
she
and
her
former
boyfriend
argued
and
physical force
ensued
between
them.
The
appellant
alleged
that
this
culminated
in
her
being
held
up against a wall and
that
she
responded
by lunging
out
with
her
hand.
This action gave rise to drastic
consequences
since
the
appellant
was at
the
time holding in
her
hand
a glass which
shattered
in
the
face of
her
former
boyfriend causing him to lose his
eye.
The
appellant's
contention
was
that
she
did not at
the
time
realise
she
was holding
the
glass
and
was acting in self-defence.
The
appellant
appealed
against
her
conviction for unlawful
wounding
on
the
ground
that
the
judge
had
erred
in directing
the
jury
on self-defence. Relying no
doubt
on a passage from
the
judgment
in R. v. Julien [1969] 1
W.L.R.
839,
the
judge
had
directed
that
before
self-defence
could
be relied
upon
it was
necessary for it to be established
that
the
defendant,
by
her
actions,
demonstrated
an unwillingness to fight. This
approach,
the
instant
court
felt, was
inappropriate
in cases such as
the
present
since it
placed
too
great
an obligation on
the
defendant.
Rather,
their
Lordships
accepted
as an accurate
and
helpful
statement
of
the
law
apassage in Smith
and
Hogan,
Criminal
Law
(5th
ed.,
1983), p. 327
which submits
that
although
to
demonstrate
an unwillingness to
fight is
good
evidence of acting reasonably
and
in
good
faith in
self-defence,
there
is no necessity to do so.
It
was
accepted
by
the
327
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