Self‐Defence and Mistake: A Way Forward
| Published date | 01 March 1990 |
| Date | 01 March 1990 |
| Author | Marianne Giles |
| DOI | http://doi.org/10.1111/j.1468-2230.1990.tb01803.x |
Self-Defence and Mistake:
A
Way
Forward
Marianne Giles”
Two friends go out together for a drinking session. They return to one
of
their flats, very
drunk, to sleep it off. During the night one of the men wakes up, and still under the effect
of
the alcohol, mistakenly believes his friend is attacking him. He responds with what
he thinks are a few slight blows to fend him off, and goes back to sleep. When he wakes
up in the morning he finds his friend dead, the victim of a violent assault only he could
have inflicted. He thought he had acted reasonably in defending himself, but he cannot
remember much about it.’ Is he guilty of murder, or manslaughter, or nothing at all?
Sometimes the most straightforward fact situations
can
present disproportionate difficulties
for the criminal courts. The general questions of the right to self-defence, the amount
of force which can be used in self-defence, and the effect of mistakes by
the
actor about
either of those factors, are questions still not satisfactorily solved by the courts.
Cases in recent years2 have attempted to solve these problems, and have clarified the
law to a certain extent, but this clarification has highlighted two particular areas of criminal
legal theory where discussion and disagreement seem constant, and which would perhaps
benefit from further analysis. The first is the ‘objective-subjective debate.’ Should the
defendant’s liability
be
judged objectively, thus expecting him to reach the objective standard
of the reasonable man, or should it be judged subjectively, requiring that he personally
should have intended or forseen a possible consequence or circumstance before he
is
held
liable?
If
it
is
a question rather of the validity of a defence then the question would be
whether the defendant should be expected to behave as a reasonable man would have,
or is he to be judged subjectively?
The second problem is the distinction between circumstances which are part of the
definition of the offence; elements of the
uctus
reus
for which
mens
reu
is required, and
circumstances which are seen to constitute a valid defence. This will be referred to
as
the ‘definition-defence debate.’ These two problems overlap in the kind of fact situation
illustrated above. Is the unlawfulness of the defendant’s action a circumstance of the events
which is part of
the
definition of the offence
-
unlawful killing
-
or
is
lawfulness a defence?
If the former, is the mental element to be judged objectively, on the basis of how the
reasonable man would have read the situation, or subjectively, on the basis of how the
defendant in fact read the situation? If the latter, the same question arises; do we judge
the defence of lawfulness on an objective basis or on the basis of what the defendant himself
perceived and believed? The final relevant question is of course, does it make any difference
in practice?
The First Problem: The ‘Objective/Subjective Debate’
The leading case in this area is
R
v
CuldwelP.
The defendant had set fire to some hotel
premises, endangering life, although no one was actually hurt. He was charged
inter ulia,
~~ ~ ~~ ~~
*University of Kent at Canterbury.
I
am
indebted
to
both Professor Leigh of the London School of Economics,
and Professor Jackson of the University of Liverpool, for their most helpful comments on an earlier draft
of this article.
1
A simplified fact situation based
on
R
v
O’Grady
[I9871 3 All
ER
420.
2
DPP
v
Morgan
[I9751
1
All ER
8,
Gladstone Williams
(1984) 78 Cr. App. Rep. 276,
Kimber
[1983]
3
All ER 316,
Beckford
[I9871 3 All
ER
425.
3
[
19821 AC 341.
The Modem
Law
Review
53:2 March 1990 0026-7961
187
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