Criminal Justice and Immigration Act 2008 self-defence provisions come into force

On July 14, 2008, Section 76 of the Criminal Justice and Immigration Act 2008 came into force. This section aims to clarify the operation of the:

• Common law defence of self-defence.
• Defences provided by Section 3(1) of the Criminal Law Act 1967 or Section 3(1) of the Criminal Law Act (Northern Ireland) 1967 (use of force in prevention of crime or making of arrest).

The Section applies where, in proceedings for an offence, an issue arises as to whether the person charged with the offence (D) is entitled to rely on one of the above defences and the question arises whether the degree of force used by them against a person was reasonable in the circumstances. The ‘degree of force’ means the type and amount of force used. For the purposes of Section 76 self-defence also includes acting in defence of another person.

Section 76(3) states that the question whether the degree of force used was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be.

If D claims to have held a particular belief as to the existence of any circumstances, the reasonableness of this belief is relevant in deciding whether or not D actually held the belief. If it is established that D did hold this belief, D can rely on the belief for the purposes of Section 76(3). This applies whether or not the belief was mistaken or, if it was mistaken, whether the mistake was a reasonable one to make. However if a mistaken belief is attributable to voluntary intoxication on the part of D, D may not so rely on the belief as to the circumstances.

Section 76(6) adds that if the degree of force used in the circumstances was disproportionate then it is not to be regarded as having been reasonable in the circumstances.

In determining whether or not the degree of force used by D was reasonable in the circumstances, Section 76(7) requires certain considerations to be taken into account. These are:

• That a person acting for a legitimate purpose (the purposes of the defences to which Section 76 applies) may not be able to weigh the exact measure of any necessary action.
• That evidence of a person’s having done only what they honestly and instinctively thought to be necessary constitutes strong evidence that only reasonable action was taken in the circumstances.

These considerations do not prevent other matters from being taken into account in determining whether the degree of force used by D was reasonable in the circumstances.

Section 76 is brought into force by Statutory Instrument number 1586 of 2008. This SI brings into force a number of other provisions of the Criminal Justice and Immigration Act 2008.