Introduction
Whether the accused has a duty to retreat before using force in self-defense is an arguable topic in the criminal law. In some jurisdictions, such a duty exists and the burden of proof is on the defense to show his or her conduct was reasonable or necessary. However, in other jurisdictions, the courts are more reluctant to have or even deny having such a requirement. This essay will first examine the retreat doctrine in Hong Kong and then compare it with other jurisdictions which are the U.S. and Scotland. Finally, it will be argued that Scotland system is better from the policy standpoint because the right to life is a fundamental right possessed by all human beings and should be given priority to wherever there is a reasonable possibility.
English law and Hong Kong law
In R v Julien , the Court of Appeal held that the self-defense would fail only if the defendant failed to take a reasonable opportunity to escape from the situation of danger. As for whether the defendant should first demonstrate an unwillingness to fight, Widgery LJ asserted, ‘what is necessary is that he should demonstrate by his actions that he does not want to fight.’ However, the ruling in Julien case has been modified ever since. In R v McInnes, it was held that failure to retreat is merely one element for the court to consider in terms of the reasonableness of the defendant’s conduct. Then in the leading case, R v Bird, the English Court of Appeal has implicitly disapproved the rule in Julien case, holding that it was unnecessary to show an unwillingness to fight. The court observed: ‘If [D] is proved to have been attacking, retaliating or revenging himself, then he was not truly acting in self-defence. Evidence that the defend...
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...1958] 100 CLR 448, 463.
[2007] EWHC 3169 (Admin).
[1992] 1 HKCLR 255. ibid 258,259.
The Model Penal Code 1981.
Fiona Leverick, Killing in Self-Defence, (1st edn, OUP 2006) 75. ibid 72.
1999 SLT 1333. ibid 1336. ibid 1337. ibid. A.J. Ashworth, ‘Self-defence and the right to life’ (1975) 34 CLJ 290.
P. Luevonda Ross, ‘The Transmogrification of Self-Defense By National Rifle Association-Inspired Statutes: From The Doctrine of Retreat to The Right to Stand Your Ground’ (2007) 35 S.U.L. Rev.1, 46.
John Lott, More Guns, Less Crime” (3rd edn, University of Chicago Press 2010).
Chandler B. McClellan and Erdal Tekin, ‘Stand Your Ground Laws, Homicides, and Injuries’ (2012) NBER Working Paper 18187.
Ian Ayres and John J. Donohue III, ‘Shooting Down the “More Guns, Less Crime” Hypothesis’ (2003) Stanford Law Review 1193.
Leverick (n13) 82-84.
...le grounds that she cannot otherwise protect herself from injury apart from using force. The prerequisite of reasonableness is an imperative characteristic of Canadian self-defence law. Courts have customarily used a criterion of reasonableness replicated on the traditional barroom brawl situation, concerning antagonists of identical dimension, force, and ability. In such a situation, the reasonable man rises and faces his opponent, meeting fists with fists. He is not scared or aggravated to violent behaviour by meagre threats; he does not utilize a weapon except if one is being employed against him; he does not indulge himself in weak conduct for examples surprising an enemy and catching him unprepared.
States that have stand-your ground laws remove a common law requirement to retreat if a person is able to do so before using reasonable force outside of one’s home (Randall and DeBoer). This allows individuals in states with these laws to use force in self-defense when there is a reasonable belief of a threat (Randall and DeBoer). Under certain circumstances, such as a threat of imminent serious bodily harm or death, deadly force is considered reasonable under stand your ground laws (Randall and DeBoer). In Florida the stand-your ground law states “a person has the right to stand his or her ground if he or she (1) reasonably believes it is necessary to d...
Moorhouse, John C., and Brent Wanner. "Does Gun Control Reduce Crime or Does Crime Increase Gun Control?" CATO Journal 26.1 (2006): 103-24. Academic Search Premier. EBSCO. Web. 15 June 2015.
Moorhouse, John C., and Brent Wanner. "Does Gun Control Reduce Crime Or Does Crime Increase Gun Control?." CATO Journal 26.1 (2006): 103-124. Academic Search Premier. Web. 5 Apr. 2014.
"Laws that forbid the carrying of arms disarm only those who are neither inclined nor determined to commit crimes. Such laws make things worse for the assaulted and better for the assailants, they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man."
The four criminal law elements of self-defense are nonaggressor, necessity, proportionality, and reasonable belief. Nonaggressor is when the defender did not in any way provoke or stray an attack. When it comes to self-defense it is only available when it comes to unprovoked attacks. If one provokes someone they cannot use self-defense to defend themselves from the attack because they provoked it. However there is one exception and that is the withdrawal exception. The withdrawal exception is when the initial aggressor withdrawals completely from the attack they provoked they can defend themselves against their initial victims. An example of nonaggressor self-defense is Melody hanging out at the bar by herself and Samantha comes up to her trying
Tushnet, Mark. "Interpreting the Right to Bear Arms---Gun Regulation and Constitutional Law." The New England Journal of Medicine. 3 Apr. 2008. Web. 15 Oct. 2011.
For example, in Jacksonville, Florida, Jordan Davis, another unarmed teenager was killed by Michael Dunn. Davis and other teenagers were riding in a SUV with music blasting from the vehicle, when Dunn pulled up alongside of them and asked them to turn the music down . Words was exchanging between the two parties, and Dunn fired 8 to 9 shots into the SUV where he fatally shot Davis. Dunn was arrested and charged with first degree murder. Dunn claimed he fired in self-defense and invoked the “Stand Your Ground law” as his defense. ...
Guns, Crime, and Freedom states that, no gun law which restricts the right of law-abiding citizens to own guns has been proven to reduce crime or homicides, not even the Brady Law and the “Clinton Crime Bill.” These two laws st...
[2] Dowlut, Robert. The Right to Keep and Bear Arms in State Bills of Rights and Judicial
John Luik author of the article “The Increased Availability of Guns Reduces Crime” and Sabina Thaler the author of the article “The Claim of Increased Gun Availability Reduces Crime is Unfounded” are two examples of people having different opinions on such a debatable topic. Both authors talk about guns taking people’s lives, Thalers article focuses on guns taking innocent people’s lives, and Luiks article focuses on guns being innocent people’s protection. Many gun supporters will say that more guns will bring down the crime rate. These same believers will give facts stating that the more guns in a state, the less likely gun owners will use them. “The chances of innocent people being the victims of violent crime, including murder, decrease—not increase—when access to guns is made easier” (Luik).
Stand-your-ground Law - "Stand-your-ground Law." Wikipedia. The World of the. Wikimedia Foundation, 28 Mar.
Lott, Jr. John R. More Gun Less Crime: Understanding Crime and Gun Control Laws. Chicago: University of Chicago Press, 2000. Print.
Professional champions of civil rights and civil liberties have been unwilling to defend the underlying principle of the right to arms. Even the conservative defense has been timid and often inept, tied less, one suspects, to abiding principle and more to the dynamics of contemporary Republican politics. Thus a right older than the Republic, one that the drafters of two constitutional amendments the Second and the Fourteenth intended to protect, and a right whose critical importance has been painfully revealed by twentieth-century history, is left undefended by the lawyers, writers, and scholars we routinely expect to defend other constitutional rights. Instead, the Second Amendment’s intellectual as well as political defense has been left in the unlikely hands of the National Rifle Association (NRA). And although the NRA deserves considerably better than the demonized reputation it has acquired, it should not be the sole or even principal voice in defense of a major constitutional provision.
Vedantum, E, & Schultz, D. (2013) ‘Stand Your Ground' Linked To Increase In Homicides Retrieved September 21, 2016, from http://www.npr.org/2013/01/02/167984117/-stand-your-ground-linked-to-increase-in-homicide