OCR A-Level Law 2024

A second point is that the ‘pre-emptive strike’ rule is too wide. Whilst the law on self-defence clearly states that a person can act first to prevent an imminent attack – a sensible rule as someone should not have to wait to be stabbed for example before they attack - it has been interpreted too widely, producing unfair decisions. In Beckford a policeman who shot dead an unarmed man who he thought was a threat, was acquitted of murder due to self-defence, which seems very unfair on the victim and morally wrong. The law is surely not there to protect reckless policemen. There may be argument that the defence is “two-tier”, and the general public are treated differently to those with a public duty. Linked to this, it may also be difficult for the jury to decide whether force was necessary – producing inconsistent decisions.
A third point is that the ‘genuine mistake’ rule is too wide. A defence can be successful where a defendant honestly but mistakenly believes that force is necessary, as in Williams. However, this has been interpreted too widely, producing unfair decisions. The abovementioned case of Beckford is one example. Another example is in the case of Harry Stanley, where the victim was shot when the police believed him to be an armed, dangerous, Irish terrorist, when in fact he was Scottish and simply left a pub carrying a table leg in a plastic bag which had earlier been repaired by his brother. No-one has ever been prosecuted in this case.
A fourth point is that the law now is too generous to homeowners. In burglary cases, the Crime and Courts Act 2013 states that the degree of force will be reasonable unless it is ‘grossly disproportionate’ to the threat, which means that excessive force may be used, which is unfair to burglars and in breach of their human rights. This has produced controversial decisions, such as in Collins where the defendant was not prosecuted having put an intruder in a headlock until he turned purple causing him brain damage. This shows that the law supports the view that a homeowner has the moral right to defend themselves on their property using force.
Another issue posed by this defence is the inconsistency that could be produced under the “burglary” cases exception. A shop owner who is confronted by an intruder in the shop area may use disproportionate force to defend himself and potentially his family who may be living upstairs, but this does not apply to a customer in the shop who uses force against the intruder. It may be argued that it is unjust to allow anyone to use disproportionate force, but this could be counter-argued by suggesting people should be able to go to any lengths to protect themselves and family.
One final problem is that often the defendants’ characteristics are not taken into account, when deciding whether it was necessary to use force, or whether the force used was reasonable. This is a problem in cases such as Martin and Cairns, where both defendants suffered from medical conditions, which meant they perceived the world around them differently to others. It seems unfair to sentence people who are mentally ill to life sentences because of a comparison to the average person. However, the defence of diminished responsibly somewhat rectifies this problem.