As I said before, and as Mr. Preston also said, in the law and particularly, I think, in the law of defences, we're never going to get away from the concepts of reasonableness and proportionality.
We're never going to have a completely precise standard for deciding these things. The reason I'm suggesting that it would be better to highlight the three elements I began with, and then treat the other factors as potentially relevant to them, rather than putting them all into one set of factors, is that I do think it would confine the discretion of the judge a little bit more. There's always going to be some discretion here, but I think it would confine it a little bit more.
I should say, this is not just the discretion of judges; it's the discretion of juries in murder cases. These will be where self-defence is raised. These will typically be tried by a jury. Under the bill as it stands, the jury would have to be instructed in accordance with this section: “Members of the jury, you need to decide whether the crown has proved beyond a reasonable doubt that this act was not reasonable in the circumstances, and in deciding that you should consider these factors.” Then when the jury comes back with its verdict, the crown, the accused, and the public are not really going to know exactly what it was that moved the jury one way or another.
If we put the jury instruction in terms of the elements being the wrongful threat, the necessity of the response, and the proportionality of the response, I think we'll have a better idea of what it is juries are deciding when they're deciding these questions.
I hope that answers your question.