lc290 Partial Defences to Murder report - Law Commission

PART 4
EXCESSIVE FORCE IN SELF-DEFENCE
INTRODUCTION
4.1 In Consultation Paper No 173 1 we presented the arguments for and against the
development of a new partial defence of excessive force in self-defence. We
asked consultees to consider two distinct options. One (option A) involved the
extension of the common law defence of self-defence so as to provide a partial
defence in circumstances where some force by the defendant, based on the
defendant’s subjective belief, was lawful but the amount of force used exceeded
that which was reasonable. That option was limited to the defence of the person
or another. The second (option C) involved the pre-emptive use of force in selfdefence
of the person or another in a situation where any use of force is
presently unlawful because it would be in response to a threat of violence
insufficiently imminent to give rise to the defence of self-defence. We consulted
about two other options, B and D, which involved extending A and C respectively
to include defence of property.
4.2 Only 12 consultees stated a preference for any form of partial defence of
excessive force in self-defence being applicable to the defence of property. Of
those, only two favoured option D.
4.3 The creation of a partial defence to murder based on excessive use of force in
self-defence has been the subject of previous recommendations by the Criminal
Law Revision Committee, 2 a House of Lords Select Committee 3 and the Law
Commission. Clause 59 of the Law Commission’s draft Criminal Code 4 would
provide a partial defence to murder reflecting option B. 5 It claimed support, as a
1 See Part IX and paras 12.84 – 12.94.
2 Fourteenth Report: Offences Against the Person (1980) Cmnd 7844, para 288.
3 Report of the Select Committee on Murder and Life Imprisonment, (1988-89) HL 78-I, para
89.
4 Law Com No 177.
5 Clause 59 provides:
A person who but for this section would be guilty of murder is not guilty of
murder if, at the time of his act, he believes the use of force which causes
death to be necessary and reasonable to effect a purpose referred to in section
44 (use of force referred to in public or private defence) but the force exceeds
that which is necessary and reasonable in the circumstances which exist or
(where there is a difference) in those which he believes to exist.
Clause 44(1) provides:
A person does not commit an offence by using such force as, in the
circumstances which exist or which he believes to exist, is immediately
necessary and reasonable –
(a) to prevent or terminate crime, or to effect or assist in the lawful arrest of
an offender or suspected offender or of a person unlawfully at large;
(b) to prevent or terminate a breach of the peace;
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