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.
In Canadian law it is identified in the background of other defenses, conveying BWS into the courts engages the exploit of well-prepared evidence. It has become apparent formerly that women have been treated in a stereotypical manner by the Canadian courts. Their incidents and requirements were not completely considered. Prior to the 1990 law modifications, there was a gendered structure of the self-defense doctrine that assessed females alongside a male standard of reasonableness. This setback was projected to be put to the end with the Supreme Court verdict in R.V Lavallee . With all these changes, particularly Lavallee, the justice system was effective in becoming additionally understanding to t...
Safranski, and Muen Bae. "The Effectiveness of Gun Control Laws:." American Journal of Economics and Sociology 56.1 (2010): 41-50. Web.
The “Stand Your Ground” law was first adopted in the state of florida in 2005. This law did not gain national attention until the shooting death of unarmed teenager, Trayvon Martin, in Sanford, florida, where the shooter, George Zimmerman used the “Stand Your Ground” law as his basis for defending himself against Trayvon Martin to the Sanford Police Department. However, George Zimmerman’s legal defense team did not utilize the law to argue his innocence during his trial. But the damage had been done because soon after other cases in florida began to sprout up with “Stand Your Ground” as the driving force.
...ent Wanner. "Gun Control Laws Do Not Reduce Violent Crime." Violence. Ed. Louise Gerdes. Detroit: Greenhaven Press, 2008. Opposing Viewpoints. Rpt. from "Does Gun Control Reduce Crime or Does Crime Increase Gun Control?" Cato Journal 26 (Winter 2006): 103-122. Opposing Viewpoints in Context. Web. 28 Apr. 2014.
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.
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).
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.
[2] Dowlut, Robert. The Right to Keep and Bear Arms in State Bills of Rights and Judicial
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.
Lott, Jr. John R. More Gun Less Crime: Understanding Crime and Gun Control Laws. Chicago: University of Chicago Press, 2000. Print.
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
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...
Stand-your-ground Law - "Stand-your-ground Law." Wikipedia. The World of the. Wikimedia Foundation, 28 Mar.
"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."
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