Proposals for Reforming the Law of Self-Defence

Journal of Criminal Law, Vol. 72, No. 5, 2008

32 Pages Posted: 29 Dec 2008 Last revised: 18 Oct 2009

See all articles by Amir Pichhadze

Amir Pichhadze

Deakin University, Geelong, Australia - Deakin Law School

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.

Keywords: criminal law, self-defence, objective standard of reasonableness, provocation, canada, us, uk

Suggested Citation

Pichhadze, Amir, Proposals for Reforming the Law of Self-Defence. Journal of Criminal Law, Vol. 72, No. 5, 2008. Available at SSRN: https://ssrn.com/abstract=1320864

Amir Pichhadze (Contact Author)

Deakin University, Geelong, Australia - Deakin Law School ( email )

221 Burwood Highway
Burwood
Burwood, Victoria 3125, Victoria 3125
Australia

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