R V. BIRD (1985) 1 WLR 816 (CA) 

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FACTS OF THE CASE  

• The facts of the case are , on 10 March 1984 the Appellant was celebrating her  seventeenth birthday. There was a party at a house in Harlow where the victim (Darren  Marder ) was also present with his new girlfriend. Before Appellant and Darren had  been friendly and had been going out together between January and the middle of 1983.  But that close friendship has came to an end. 

• Suddenly in the party an argument broke out between the appellant and the Darren after  a great deal of body language and shouting, the Appellant told Marder to leave. A little  later he came back and a second argument broke out between the two of them. The  Appellant poured a glassful of Pernod over Marder, and he retaliated back by slapping 

her around the face. Further Marder held him against the wall at a point she lunged at  Mader with Pernod glass which hit him in the face and as a result his eyes was lost.  

• On 24 January 1985, in the Crown Court at Chelmsford, before his Honour Judge the  Appellant was convicted of unlawful wounding contrary to Section 20 of the offence  against the Person Act 1861, and sentenced her to 9 months youth custody. 

• She appealed against conviction on the ground that the Trial Judge made a mistake in law  in directing the jury that before she could rely on a plea of self-defence it was necessary  that she demonstrated by her action that she did not want to fight. She also appealed  against the sentences.  

ISSUE RAISED  

• Whether the judge was in error in directing the jury that before the appellant could rely  on a plea of self-defence, it was necessary that she should have demonstrated by her  action that she didn’t want to fight? 

• Whether it was in the circumstances of this case a material misdirection? 

ARGUMENTS  

The point taken by the counsel for the appellant is that the learned Deputy Chairman was wrong  in directing the jury that before the appellant could use force in self-defence he was required  to retreat. The submission made here was that the obligation to retreat before using force in  self-defence is an obligation which only arises in homicide cases. It is further submitted that if  the injury results in death then the accused can not set up the self-defence except on the basis  that he had retreated before he resorted to violence. 

JUDGEMENT  

The judgement of this Court was delivered by Lord Justice Edmund Davies, “the first criticism  of the judge’s treatment of self-defence is that he misdirected the jury in relation to the question  of whether an attacked person must do all he reasonably can to retreat before he turns upon his  attacker”. In our law if two men fight and one of them after a while endeavours to avoid any  further struggle and retreat as far as she can, and then when he can go no further turns and kills  the assailant to avowing being killed himself, that homicide is excusable but there is need to  show that homicide arising from a fight was committed in self-defence. The obligation to  retreat before using force in self-defence is an obligation that only arises in homicide case, not  in cases where the injury does not result in death. The court rejected the submission that an  attacked person must demonstrate by their actions that they do not want to fight. In this case,  the jury had to determine whether the appellant realized she had a glass in her hand when she  struck the blow. If the jury believed that she did not realize this, the misdirection by the judge 

regarding the necessity to demonstrate non-violent intentions may have influenced their  decision. Therefore, the misdirection was material and the conviction was quashed. 

REFERENCES 

http://www.lexisnexis.co 

http://www.casemine.com 

https://www.manupatrafast.com/

This article is written by Lakshmi Kumari of Alliance University (school of law) Bangalore,  Intern at Legal Vidhiya.

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