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The householder’s self-defence

Simon Parsons considers the statutory provision dealing with reasonable force for the purposes of self-defence in the case of a householder.

About the author
Simon Parsons is former Associate Professor of Law at Southampton Solent University.

S ection 43 of the Crime and Courts Act (CCA) 2013 came into force on 25 April 2013. The CCA amends Criminal Justice and Immigration Act (CJIA) 2008 s76, adding a new subsection (5A) by which: ‘In a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in those circumstances.’

The editors of Archbold: criminal pleading, evidence and practice 2016 maintain (at paras 19–48 a) that the effect of section 76(5A) is that force used in self-defence in a householder case can only be unreasonable if it was grossly disproportionate. More fully, a householder (or anyone else lawfully present in that household) would be guilty of unlawful violence against a burglar or intruder (or someone they honestly believed to be a burglar or intruder) only if that force was not just excessive or disproportionate, but grossly disproportionate in the circumstances as such appeared to them at the time.

The effect of this interpretation is that there are two forms of private defence: if the force used is within a dwelling against a trespasser CJIA s76(5A) permits it to be ‘anything up to grossly disproportionate’ , whereas force used elsewhere must not be disproportionate or unreasonable. But does this represent an accurate statement of the law? A contrary position is expressed by the editors of Blackstone’s criminal practice 2016 at para A3.63 as follows: ‘The new provision merely affects the interpretation of ‘( un)reasonable in the circumstances’ so that force is not by law automatically unreasonable in householder cases simply because it is disproportionate provided it is not grossly disproportionate.’

This conflict in interpretation was resolved by the divisional court in R (Collins) (A protected party by his father and litigation friend Peter Collins) v Secretary of State for Justice [2016] EWHC 33 (Admin); (2016) June CILExJ p25.

The householder defence applies only where D is defending themself or others, but not their property

Collins: the facts

Collins was an intruder in B’s house. The occupants of the house believed that he could have been a burglar or that he could have been there to commit another crime. Collins’s strange behaviour caused those present a considerable amount of concern, alarm and fear.

B restrained Collins by putting him in a headlock face down on the floor and, according to police records and recorded timings of the 999 calls, the period of restraint was approximately six minutes. The police were called as soon as possible after Collins was confronted and restrained, and it was B who suggested that the police be called. During the struggle on the floor, B threatened to kill Collins and C (B’s wife) told the police that B was trying/ going to kill Collins. At least two people present expressed concern about Collins’s welfare while he was being restrained: the first expression of concern was voiced around two minutes before the police arrived. By restraining Collins in a headlock, B had caused him to lose consciousness and was, therefore, responsible for him being comatose. (Collins is alive, but with brain damage from which he is not expected to recover.)

Initially, Collins (by his father and litigation friend) sought both to challenge the decision of the Director of Public Prosecutions (DPP) not to prosecute B on the basis that the Crown Prosecution Service (CPS) had wrongly directed itself as to the effect of CJIA s76(5A) and that subsection was incompatible with article 2 (the right to life) of the European Convention on Human Rights (‘ the convention’ ). The claim against the DPP was abandoned, but the construction placed on the legislation by the CPS was used to support the allegation of incompatibility. In its final, amended form, the application sought a declaration addressed to the secretary of state for justice that section 76(5A) was incompatible with article 2 of the convention.

The law on self-defence

In both householder and non-householder cases, the defendant may plead the defence of self-defence (also known as private defence). In both cases, when applying section 76(3), section 76(5A), section 76(6) or section 76(7) of the CJIA and the common law, there are two tests.

First, did the defendant honestly believe that the victim was making an actual or imminent unlawful assault (of whatever seriousness, including murder) on themself (or on another), and that force was necessary in the circumstances (the subjective test)? Second, the force was reasonable, in the circumstances and the danger as the defendant believed them to be (the objective test). Thus, the defendant is to be judged on the facts as they honestly believed them to be. The reasonableness of the defendant’s response on those facts is a matter for the jury and not themself.

In relation to the objective test, in both cases section 76(7) puts on a statutory basis the Palmer direction (Palmer v R [1971] AC 814) that the jury can take into account ‘agony of the moment’ factors which mean that, in many confrontations, the defendant will not have an opportunity for hindsight or debate, but rather will have to act in an instant. If the defendant does so but does no more than seems honestly and instinctively to be necessary, that is itself strong evidence (although not conclusive) that it was reasonable. The standard against which the defendant’s force is measured is that which is reasonable, and the test is not whether the force was proportionate, disproportionate or grossly disproportionate.

According to the divisional court in Collins, ‘in almost all cases if the degree of force is proportionate it will also be reasonable but that cannot be to equate the two’ (para 25). It is pity that no example is given regarding when this is so.

The effect of section 76(5A) is to exclude a householder’s grossly disproportionate force from being reasonable. In contrast, section 76(6) excludes a non-householder’s disproportionate force from being reasonable. Thus, section 76(5A) enables a jury to hold that disproportionate force is reasonable; however, there is discretion, meaning that they may (not must) so hold.

This is where the reviewing CPS lawyer erred in deciding that unless the prosecution proved that B’s force was grossly disproportionate, he would be acquitted of any offence of violence because section 76(5A) automatically makes disproportionate force reasonable and, therefore, lawful. This was not the appropriate test to use when applying The Code for Crown Prosecutors. ‘The effect of s76(5A) is not to give householders carte blanche in the degree of force they use against intruders in self-defence’ (para 61). An example of where force might be disproportionate, but reasonable, is where a householder - when faced with an intruder - has the opportunity to retreat but fails do so and instead uses serious force against the intruder. In that example, the force may be disproportionate but reasonable, although in a non-householder case this would be unreasonable as a result of section 76(6). This means that, in the interpretation of section 76(5A), Archbold 2016 is incorrect and Blackstone 2016 is correct.

This also means that section 76(5A), in conjunction with section 76(3) and the common law on self-defence , requires a jury to answer two questions in respect of the objective test in a householder case.

Presuming that the defendant genuinely believed that it was necessary to use force to defend himself, these are:

(i) Was the degree of force the defendant used grossly disproportionate in the circumstances as he believed them to be? If the answer is ‘yes’ , he cannot avail himself of self-defence . If ‘no’, then;

(ii) Was the degree of force the defendant used nevertheless reasonable in the circumstances he believed them to be? If it was reasonable, he has a defence. If it was unreasonable, he does not (Collins, para 20).

The inevitable question that will come back from jurors is: ‘What is grossly disproportionate force?’ The divisional court does give some guidance by stating that grossly disproportionate force is ‘a degree of force that went completely over the top’ (para 33, author’s emphasis added). ‘Over the top’ is not a legal term, and is rather vague and suggests that a jury will have to use its common sense and common experiences to decide what is grossly disproportionate force.

So, section 76(5A) qualifies the objective test in the defence of self-defence by allowing for a jury’s discretionary area of judgment in householder cases, which has a different emphasis than that which is applied in non-householder cases. This interpretation, the court suggests, also supports article 8 of the convention, which specifically provides for the protection of the home. The next question for the court was whether this interpretation of section 76(5A) was compatible with article 2(1) of the convention.

Article 2(1) compatibility

Article 2(1) of the convention guarantees the right to life as follows: ‘1. Everyone’s right to life shall be protected by law.’ This includes life-threatening force which, in the event, does not take a life (l​lhan v Turkey App No 22277/93; (2002) 34 EHRR 36, para 75). Thus, although Collins was not killed, but rather severely injured, article 2(1) was engaged.

Article 2 (1) of the convention requires contracting states to refrain from the intentional and unlawful taking of life (the negative obligation), but also to ensure that the lives of those within its jurisdiction are protected (LCB v UK Case No 14/1997/798/1001; (1998) 27 EHRR 212 (the positive obligation). The European Court of Human Rights (ECtHR) considers a state’s criminal law to be an essential part of the framework to deter offences against the person (Osman v UK Case No 87/1997/871/1083; (2000) 29 EHRR 245).

The first question for the divisional court in Collins, therefore, was: ‘Does the criminal law of England and Wales effectively deter offences against the person in householder cases?’ (para 58). The court concluded that murder, manslaughter and non-fatal offences against the person apply in householder cases and have an effective deterrent effect against unlawful violence by householders (para 59).

The second question for the court was: Whether this deterrent effect is undermined by section 76(5A)? The court, in answering this question, said that the ECtHR had consistently held that the objective test in self-defence (in circumstances as the defendant honestly believed them to be) as applied in state actor cases (ie, which concerned, for example, police officers ) was compatible with the article 2(2) requirement of ‘absolute necessity’ (para 63). (Article 2(2) allows for killing where that is ‘absolutely necessary’ for the exhaustive purposes listed in this article). Thus, ‘[ o]n any view, therefore, the test of reasonableness in the circumstances in private party householder cases, even after the minor qualification of section 76(5A), would not cause a breach of the article 2(1) positive obligation’ (para 63). Thus, section 76(5A) does not weaken the ability of the criminal law to deter offences against the person in householder cases. This may be so, but the ECtHR has, in the same cases, doubted whether the subjective question in self-defence is compatible with ‘absolute necessity’ in article 2(2), suggesting that to justify a killing there must be an honest belief held for good reason.

Conclusion

The divisional court concluded that ‘[ section] 76(5A) of the 2008 Act does not extend the ambit in law of the second limb of self-defence’ (para 70). It is difficult to agree with that conclusion, as surely there is now a heightened defence for householders as disproportionate force may be reasonable in householder cases but never in non-householder cases. The court refused to issue a declaration of incompatibility and dismissed the application for judicial review.