Proposals for Reforming the Law of Self-Defence

Abstract

The English law of self-defence has attracted significant attention following the controversial decision of the Court of Appeal in R v Martin. At the heart of the controversy is the determination of the reasonableness of a defendant's apprehension of the necessity to use a particular amount of force in self-defence. When comparing the defendant's apprehension and actions to those of a reasonable person in the same circumstances, what characteristics of the defendant must be attributable to the reasonable person in order for the test to be appropriate? This article argues that while the Court of Appeal's reluctance to allow a psychologically individualised standard of reasonableness may have been correct, the court should have reformulated the purely objective standard into a contextual objective standard. It is suggested that unless such reform is undertaken, the English law of self-defence will remain unduly constrained. Reform proposals by the Law Commission have made it clear that such reform is not on the horizon. As an alternative, the Law Commission proposed a reformulated defence of provocation. While this alternative is commendable, it does not remove the need to reform the objective standard of reasonableness in the law of self-defence.

Interpreting the Contours of Self-Defence within the Boundaries of the Rule of Law, the Common Law and Human Rights

“…43 The objectivity of the hypothetical reasonable person involves conceptualising a person that possesses universal characteristics, rather than characteristics personal and peculiar to the defendant. 44 It is assumed that people are mentally sound, rational and prudent. In R v Martin 45 the Court of Appeal suggested that, in exceptional circumstances which made the evidence especially probative, a court could take into account the fact that the defendant was suffering from a psychiatric condition.…”