Breaking Down Self-Defence
In recent times, there has been increased interest in the concept of self-defence and how it operates in the legal framework of Trinidad and Tobago. Questions have been asked as to what is acceptable as self-defence? When does it arise? How is it viewed in the courts? To properly answer those questions, we need to break down the law.
What does self-defence mean in law?
Self-defence is a common law defence (not in legislation) which can be explained in the following principles:
- A person who is attacked is entitled to defend himself.
- In defending himself he is entitled to do what is reasonably necessary.
- The defensive action must not be out of proportion to the attack.
- In a moment of crisis a person may not be able to determine the exact measure of his necessary defensive action.
- In a moment of anguish a person may do what he honestly and instinctively thought was necessary.
- If there has been no attack then the issue of self-defence does not arise.
When can Self-Defence be used?
A person may use such force as is reasonable in the circumstances as he believes them to be for the purposes of:
- Defending himself or
- Defence of another or
- Defence of property or
- Prevention of crime or
- Lawful arrest.
How does Self-Defence operate in Court?
The Accused is required to raise the issue of self-defence through evidence, but the burden/sole responsibility rests on the Prosecution to make the factfinder (which is often the jury but can be the Judge alone) feel sure that the Accused did not act in self-defence when he/she committed the offence. The factfinder alone decides whether the Accused was or was not acting in self-defence.
Self-Defence is viewed from whose perspective?
The question is whether the degree of force used by an Accused was reasonable in the circumstances as he/she believed them to be. The state of mind of the Accused person is important to determine whether he was acting in self-defence.
To determine reasonableness, the factfinder also has to consider if the Accused claims to have held a particular belief relative to the existence of any circumstances. More particularly, whether that belief was reasonable and relevant to the question of self-defence. This applies even if the belief was mistaken, once the mistake was a reasonable one to have made.
What is reasonable force and when can it be used?
The factfinder will consider if there was an attack or anticipated attack upon the Accused and as a result, the Accused must have believed on reasonable grounds that he/she was in imminent danger of death or serious bodily harm.
The force used by the Accused must have been used to protect himself either from death or serious bodily injury. Therefore, the question to be answered, is whether the Accused reasonably believed that he/she was in imminent danger of death or serious bodily harm, that is danger that is impending or looming.
The Accused must further believe that the use of this force was necessary to prevent or resist the attack. The force used must also be in keeping with the degree of danger in the circumstances of the case. The use of force has to happen within the moment that the situation is unfolding and cannot be under circumstances of revenge.
The factfinder will be reminded in situations of a confrontation, there is no opportunity for hindsight or debate and the Accused often has to act instantly in the circumstances. If he/she does so, and does no more than what seems honestly and instinctively to be necessary, that is itself strong evidence that it was reasonable.
What happens where the Accused was mistaken as to the circumstances unfolding?
If the Accused mistakenly believes that he/she (or another) is under actual or anticipated attack, and he makes use of force or violence to repel that attack, the question to consider is whether the degree of force used was commensurate to the degree of risk of harm which he believed to be created by the attack, that he believed to be underway. If he might have been mistaken as to the events taking place, he must be judged according to that mistaken view.
Is there a duty to retreat?
There is no general duty to retreat in all cases where self-defence is raised. The question whether the Accused ought to have retreated is an element which the factfinder may consider in deciding whether the force was reasonably necessary having regard to all the circumstances at the time.
What about Defence of Property?
While the right to protect property falls within the law, there must be absolute necessity, and the property owner must do no more than a reasonable man would do in the circumstances and he/she must be satisfied that there is no other way in which he can satisfactorily and successfully defend his property.
Can an Accused be charged for murder where Self-Defence arises on the circumstances of the case?
Even where Self-Defence arises on the circumstances of the case, an Accused can be charged for murder and the decision as to whether self-defence was reasonable would be left to the factfinder.
Submitted by:
Hasine Shaikh
Chief Public Defender of the Public Defenders’ Department
Legal Aid and Advisory Authority.
23 Stanmore Avenue, Port-of-Spain
Contact: 638-5222 Email: [email protected]
Published in The Trinidad Express News Paper on Wednesday 29th August, 2023