Courts of Appeal
| DOI | 10.1177/002201838204600103 |
| Published date | 01 February 1982 |
| Date | 01 February 1982 |
| Subject Matter | Article |
Courts
of
Appeal
Comments
on
Cases
SUBJECTIVE ELEMENT IN SELF-DEFENCE
R. v. Shannon
In Palmer v. R. [1971] A. C. 814, 35 J. C. L. 189 Lord Morris set
out
the distinction between acts which are defensive and acts which are
essentially offensive, punitory or retaliatory in character.The distinction
is vital when considering self-defence as a defence to a charge
of
murder.
Thus, as Ormrod L. J. pointed out in R. v. Shannon 71 Cr. App. R. 192,
"attack
may be the best form for defence,
but
not necessarily in law.
Counter-attack within limits ispermissible;
but
going overto the offensive
when the real danger is overis another thing". In that case, the appellant
was assaulted by a man who was much more powerful than he was.
There had been bad blood between them and the appellant feared the
worst, in the light
of
earlier threats. In the end, he had resisted the
attack
so successfully
that
his assailant was dead, stabbed three times
with a large pair
of
scissors. His defence to a charge
of
murder was a
lack
of
intent to do serious bodily harm and
that
defence succeeded. He
appealed on the ground
that
the judge's direction to the jury on the
question
of
the necessary mental element was confined to his statement
relating to the intent to do really serious harm, if a verdict
of
murder
was to be returned. This meant
that,
when the judge came to deal with
self-defence, he told the
jury
that
the matter to be decided was whether
the accused had used more force than was necessary in the circumstances.
It
was submitted on appeal that this meant that the judge had failed to
put
to the jury the possibility mentioned by Lord Morris in Palmer's
case that if in a moment
of
unexpected anguish, a person attacked had
only done what he honestly and instinctively thought was necessary,
that would be most potent evidence
that
only reasonable defensive
7
Journal
of
Criminal
Law
action had been taken. This subjective element in the defence
of
self-defence was, it was claimed, unwittingly ignored by the judge in his
direction
that
the only question was whether the appellant had used
more force than was reasonably necessary.
The Court
of
Appeal agreed
that
the summing-up, even though it
was in the terms suggested elsewhere in his speech by Lord Morris,
was inadequate if it did not contain his proviso
that,
if the accused,
without having to weigh things to a nicety, honestly thought that what
he did was necessary to defend himself,
that
is "most
potent
evidence"
that
he acted reasonably in self-defence. Thus, even if an appellant's
act could not be thought to be reasonably necessary, judged by a purely
objective standard,
it
could be that the defendant's stabbing his assailant
was none the less to be regarded as an act
of
self-defence, if the jury
believed
that
he honestly believed
that
act to be necessary to save
himself. As, on the issue of self-defence, the judge had effectively
excluded the
jury's
consideration
of
the appellant's state
of
mind, the
Court
of
Appeal,
"not
without considerable hesitation and
anxiety",
quashed the conviction
of
manslaughter as unsafe and unsatisfactory.
ALIBI NOTICE AS PART OF PROSECUTION'S CASE
R. v. Watts
Upon charges
of
robbery, burglary, wounding and various drugs offences,
the appellant in R. v. Watts 71 Cr. App. R. 136
put
in an alibi notice
pursuant to Section 11 (1)
of
the Criminal Justice Act 1967, which
provides
that
adefendant shall not without leave of the court adduce
evidence
of
an alibi unless within the prescribed period he gave notice
of
the particulars
of
the alibi. On an appeal from a conviction of robbery,
the question arose
of
the position
of
counsel for the prosecution when
such a notice is served. In Watts's case, prosecuting counsel told the
Court
of
Appeal
that
he made the notice an exhibit in the case and,
although there was nothing on the transcript to show
that
this was so,
the court assumed
that that
was what had been done. Counsel had
stated
that,
although he could not specifically remember doing this,
it was his invariable practice to do so, as
it
was commonly done by
Treasury counsel at the Central Criminal Court, on the authority of
R. v. Brigden [1973] Crim. L. R. 579. That case was a non-counsel
application for leave to appeal in which there had been an alibi notice.
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