lc290 Partial Defences to Murder report - Law Commission

weaker party uses a degree of force against a stronger opponent which is greater
than would be proportionate as between people of equal strength. We endorse
what was said in response to Consultation Paper No 173 by HHJ Goddard QC
about such a case:
Such a woman may use a weapon against an unarmed but violent
man. I believe that I could properly direct a jury that the use of a
weapon in circumstances does not per se rule out self-defence i.e.
necessarily make the woman’s acts unlawful because the jury have
to consider the nature of the threat against the background.
4.13 However, from consultees’ responses, it appears that not all judges give
directions to juries about the need to carefully consider the disparity of strength
and vulnerability between the defendant and the other party in cases where it is
relevant on the facts.
4.14 It is axiomatic that directions need to be appropriate to the facts of the case. We
suggest, however, that the Judicial Studies Board may wish to consider whether it
would be helpful for it to provide for use in appropriate cases a specimen
direction for trial judges to consider adopting or adapting. That direction would
invite the jury to take account of any disparity between the protagonists which
may affect their perception of reasonableness of the fatal force used by the
defendant. We put forward for consideration:
It is insufficient to weigh the weapons used on each side; sometimes
there is an imbalance in size and strength. You must also consider
the relationship between the defendant and [the other party]. A
defendant who has experienced previous violence in a relationship
may have an elevated view of the danger that they are in. They may
honestly sense they are in greater danger than might appear to
someone who has not lived through their experiences. All these
matters should be taken into account when considering the
reasonableness of the force used. 22
4.15 This is no more than a skeleton which would need to be adapted or expanded
according to the facts. Vera Baird QC MP proposed the following new direction
on self-defence. She states that although this direction is designed primarily for a
female under attack from a man, paragraph 4 may be equally applicable to a man
in the event that the same issues about imbalance of strength arose.
1. Self-defence is not just for two evenly matched people in a street
fight, it can also present in a way which requires more careful
evaluation of its elements. This is such a case. It is insufficient to
weigh what weapons were used on each side. Sometimes there is
an imbalance in size.
2. And gender is an important factor. Of course little girls fight as
well as little boys and it is not unknown for adult women to fight, but
it is rare. It is common sense, but also clear from crime figures, that
it is overwhelmingly males rather than females who fight and there
22 Adapted from a suggested formulation put forward by Justice for Women.
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