Legitimate Defence Consultation Paper - Law Reform Commission

Ross v Curtis, there is no support in this case for the use of lethal force in
defending property. 108
Before the jury had returned the verdict, the judge directed that he would
accept either a verdict of murder or manslaughter, and would not acquit the
accused. This was done on the basis that the force used by the defendant
was so excessive as to destroy the notion that it was reasonable and in those
circumstances a jury could only convict of manslaughter or murder.
Accordingly the trial judge removed the option of a full self-defence verdict
from the jury leaving them the option of the partial defence or a murder
conviction. At this point the judge also acceded to a request by Counsel for
the defence that provocation should also be put to the jury. The defendant’s
conviction for manslaughter was appealed to the Court of Criminal Appeal,
which gave judgment in the matter on Oct 12 th 2006, quashing the conviction
and granting a retrial on the grounds that the trial judge had misdirected the
jury by allowing them to consider only the partial defence..
2.74 The question of whether lethal defensive force may be used in
defence of one’s dwelling has recently attracted considerable public and
academic attention 109 in the United Kingdom as a result of the wellpublicised
trial and appeal in the case of R v Martin. 110 The appellant in that
case was a farmer who lived in an isolated country home. Confronted with
burglars at night, he shot and killed one and injured another. The appellant’s
plea of self-defence was unsuccessful at trial on the grounds, it seems, that
the jury either rejected his claim that he was acting in self-defence (as
opposed to revenge) or held that his use of lethal force was unreasonable
(that is, excessive). Whilst the appeal did not deal directly with the issue of
defence of the home, 111 it has been argued that the law in this area remains
unclear. 112
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Before the jury had returned the verdict, the judge directed that he would accept either
a verdict of murder or manslaughter, and would not acquit the accused. An appeal is
currently before the courts as to whether the judge should have allowed the jury to
consider a defence of self-defence.
For example, see Yeo “Killing in defence of property” [2000] New Law Journal 730;
Murdie “The ins and outs of defending your home” (2002) 99 The Law Society
Gazette 39; Wedd “Jumping the Gun” (2000) 97 Law Society Gazette 19; Comment
“Injustice observed” (2000) 150 New Law Journal 601.
[2002] 1 Cr App Rep 27 at 326
The appeal turned largely on the question of incompetent counsel (which the Court of
Appeal rejected) and new evidence relating to the partial defence of diminished
responsibility, which was accepted and the appellant’s conviction was reduced from
murder to manslaughter.
Murdie “The ins and outs of defending your home” (2002) 99 The Law Society
Gazette 39. The author expressed regret that the issue was neither addressed by the
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