Lack of proportionality: the possibility of claiming self-defence for someone who intervened in support of the initial attacker

Abstract

The authors approach a case from both procedural and substantive angles, analyzing whether self-defence can be recognized for interveners supporting the initial attacker. In the initial section, they address the burden of proof and standard of proof relevant when the accused raises self-defence. While the court correctly assigned the burden of proof to the party invoking self-defence, the authors argue that the appropriate standard should be the preponderance of evidence, rather than the sufficiency standard referenced in the court’s decision. Subsequently, it is emphasized that a third party cannot invoke self-defence against a legitimate defence but can benefit from this justifying cause if the victims’ defence exceeds the bounds of proportionality, becoming an unjust attack. The court’s solution, though substantively correct – by recognizing self-defence in the context of an objective unjust attack – presents debatable reasoning with respect to error. In the final part, the discussion centers on the extent to which the disturbance of public order and peace committed through an act covered by self-defence can, in turn, be covered by self-defence.