Self Defence But Charged With Gbh

[Ako72]

My friend was attacked with a glass bottle on a night out and retaliated by punching the guy to the ground and he did kick him. he's now been charged with GBH and been held in custody as he is on licence what is classed as self defence and how can this be he is charged when he was defending himself?

[Peter Pedant]

It's under Oatridge in case anyone is looking for it
Citation 94 Cr App R 367 is good

very fulfilling cases - thx NJ and BC ( experts both )

[Peter Pedant]

R v Seun ( oye) and Press seem to be relevant

and no one has mentioned provocation

[Buenchico]

>>>and no one has mentioned provocation

Possibly because (unless there's a test case I don't know about) 'provocation' can only be used in mitigation when sentencing is being considered, rather than as defence to a charge.

[Jackdaw33]

Chico, back to your law books. s.2 Homicide Act 1957 provides for provocation to be used as a defence to reduce a charge of murder to manslaughter.

(Jackdaw, LL.B.)

[Peter Pedant]

It is this sentence from Palmer v R 1971 which the experts were good enough to direct me to

"On a charge of murder, the circumstances may be such that, where the issue of self-defence has been eliminated, a further issue will arise, namely, whether a verdict of Guilty of manslaughter on the ground of provocation may be open to the jury."

OK it is in the case analysis... but anyway you did ask

[Buenchico]

Fair enough, Jackdaw33, but assault charges are based solely upon the level of injury sustained. (e.g. 'provocation' can't get 'GBH' reduced to 'ABH').

Even your own example shows that 'provocation' isn't an 'absolute' defence. (i.e. it can't actually get someone acquitted).

[Jackdaw33]

Provocation has always existed as a partial defence to murder. Its scope was expanded by s. 2 Homicide Act 1957, which also introduced the partial defence of diminished responsibility. The scope of provocation has been considerably expanded by subsequent case law.

[Jackdaw33]

I should have mentioned at the outset the provocation is a partial and not absolute defence. It reduces the seriousness of the charge. At the time the Act was passed capital punishment was still in force, so to reduce a charge of murder to manslaughter was literally a life saver.

[Buenchico]

While it's an interesting (and valid) legal argument, Jackdaw33, I suggest that it's not actually relevant to the question posted by Ako72.

'Provocation' can see 'murder' reduced to 'manslaughter' but, as I've stated above, it can't see 'GBH' reduced to 'ABH' (or to anything else), so it won't help Ako72's friend.

[Jackdaw33]

I agree in this case, but you did state earlier that provocation could not be used as a defence in any case, hence my replies.

[Peter Pedant]

Yeah I had noticed all the cases cited - Pallmer, Williams and Oatridge were capital cases....