Justice in Paper 1 Crime

09
Self-defence may be used as a defence in criminal law.
Examine the meaning of ‘justice’ and discuss the extent to which the availability of the defence of
self-defence may achieve justice.
[15 marks]

10 marks Examine the meaning of justice

5 marks Discuss justice in self-defence

The markscheme from AQA for this question

AO1
• Identification and brief description of the different possible meanings ‘of justice,’ for example,
justice in terms of basic fairness or equality of treatment.
• Identification and brief explanation of the rules of natural justice
• Identification of different theories of justice, eg distributive justice, utilitarianism and social justice
• Identification and brief explanation of the philosophies behind the theories and the thinkers who
have explained them e.g. Aristotle, Marx, Bentham, Rawls etc.
• Identification and brief explanation of the elements required to successfully prove self-defence.

AO3
• Analysis of the importance of philosophical theories of justice and how they have been embedded
within the legal system.
• Analysis of procedural justice and how legal institutions, such as the courts and the judiciary work
to achieve justice.
• Analysis of how the law has been developed in order to achieve justice, for example, miscarriages
of justice and the development of the Criminal Cases Review Commission.
• Analysis of the scope of self-defence.
• Analysis and evaluation of the necessity for force, pre-emptive strikes.
• Analysis and evaluation of the extent to which justice is promoted: use of the defence as a
complete defence, mistaken use of force, proportionality, application to homeowners against
intruders, use of pre-emptive force in self-defence.
• Use of supporting case authority to evaluate the analysis above. For example, R v Gladstone
Williams, Beckford v The Queen, R v Bird, R v Clegg.
Justice can be defined as allocating each to their own. This means all rights and responsibilities
should be given out in society to those that deserve them. For example, a doctor who works hard
deserves a house and a car, whilst a person who loses their job does not deserve a house to live in.
A different definition of justice says rights and responsibilities should be fairly allocated in society.
This view of justice argues it would be unfair to only give housing and food to those that have good
jobs and deserve reward. It argues to stop injustice, child poverty and homelessness, the wealth in
society should be fairly shared out between all.
Procedural justice is when justice is done through the systems in place that deal with criminal law.
For example, the police powers they have when investigating crime and arresting and interviewing
suspects. The same procedures to deal with crime are in place across the country showing they
should be applied fairly. Every person, rich or poor, should have to same rights and treatment if
suspected of doing a crime. However, poor people are more likely to be convicted of crime, showing
procedural justice does not always lead to the same fair results for everyone.
Substantive justice is justice being done through the laws from Acts of Parliament and common law
that define the rules for what crimes are. For example, the crime of theft is defined through the Theft
Act 1968 and related case law. This should give justice as the same definition of justice is used
throughout the country in every case. Also, the case law helps judges to understand the meaning of
the words in the crime definition (for example, the case of Gomez explaining the meaning of
appropriation) showing the definition should be applied fairly in every case. Statutory interpretation
could be argued doesn’t achieve this justice as judges can change how they interpret a law and
therefore there are differences dependant on the interpretation used. However this is minimised by
judicial precedent as judges usually take the verdict of other cases, promoting fairness and justice.
Aristotle argued justice should be distributive, so only the worthiest should receive a share of the
rights in society. He argued those who deserved more should get more, arguing slavery was justified
as slaves couldn’t enjoy fine wine or art. This cannot be seen to do justice as it favours the rich and
wealthy and would not give justice to the poor. It would increase poverty.
Bentham argued justice was done when an action increased overall happiness. He called this theory
utilitarianism. This theory could also be argued to not do justice as it creates a risk of harming rights
of minorities. Sometimes minority rights might not increase overall happiness but our society would
strongly argue justice is only done if they are protected.
Rawls argued social justice meant each person having an equal share to basic liberties. He argued
basic human rights could never be taken away, for example even in prison the prisoners should have
some basic rights like the right to vote, and they should never be tortured, no matter the reason. His
views would support our NHS as it supports all people equally.

The law of self defence allows a full defence when the defendant only used force when it was
necessary and reasonable.
The force being necessary even allows mistaken force to be lawful, if the defendant can prove they
honestly believed at the time it was necessary. For example, the police tasered a blind man thinking
his walking stick was a sword, and this was held lawful. On the one hand this gives the police more
flexibility to do their job properly as they have to react to perceived threats of violence. On the other
hand it gives the police arguably too much power as they can argue they thought there was a threat
when none really existed. The victim of the taser here did not receive any justice and he had done
nothing wrong.
The reasonable requirement of self defence allows the defendant to use a little more force than they
are threatened with (under the Criminal Justice and Immigration Act 2008). This could be argued
to do justice as it would be unlawful to say, stab someone who spat on you. However, it could give
too much power to defendants to use more force than they were threatened with in the first place.
To conclude, the defence of self-defence does seem to do justice as it can only be used in situations
where it was both necessary and reasonable to use it.