Friday, 22 January 2016

Force by householders against intruders

R v Saw [2009] EWCA Crim 1  was concerned with sentencing for burglary of homes.  The Lord Chief Justice (then Lord Judge) said - " ..... burglary of a home is a serious criminal offence,  The principle which must be grasped is that when we speak of dwelling house burglary, we are considering not only an offence against property, which it is, but also, and often more alarmingly and distressingly, an offence against the person".    

It is hardly surprising that, in some instances, householders have used force to deal with intrusion into their homes but this may result in prosecution of the householder.   In such prosecutions the householder is likely to invoke - (a) self defence at common law; or (b) Criminal Law Act 1967 section 3(1) - "Use of force in prevention of crime or making arrest."  The Criminal Law Act 1967 states that - "A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large."

Since 2008, the law has been amended by (1) the Criminal Justice and Immigration Act 2008 s.76 ; (2) the Legal Aid, Sentencing and Punishment of Offenders Act 2012 section 148 and (3) the Crime and Courts Act 2013 section 43.  In particular, the 2013 Act inserted section 76(5A) into the 2008 Act.  Section 76(5A) states:

"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 law has been examined by the High Court in the very recent case of R (Denby Collins) v Secretary of State for Justice [2016] EWHC 33 (Admin) - Sir Brian Leveson P and Cranston J.  Denby Collins was in the home of B and B restrained Collins using a headlock causing Collins serious personal injury.  The Crown Prosecution Service (CPS) decided not to prosecute B.

In the High Court, the decision by the CPS not to prosecute was not challenged but Denby Collins argued that the "householder defence" introduced by the 2013 Act was incompatible with Article 2 (Right to Life) of the European Convention on Human Rights.  The High Court held that there was NO incompatibility (paras 36-69).  At para 64 Sir Brian stated: "All of this adds up to there being reasonable safeguards against the commission of offences against the person in householder cases. In the circumstances, I conclude that the criminal law of England and Wales on self-defence in householder cases, taken as a whole, fulfils the framework obligation under Article 2(1)."

The domestic law:

The High Court's judgment considers the facts of the case in paragraphs 4 to 12 and explains the basis on which the CPS decided that B could have successfully used the "householder defence" in section 76(5A).

The court's examination of the domestic law is at paragraphs 13 to 35 and this post concentrates on that part of the judgment.  Sir Brian Leveson said that the central question was whether the degree of force used was reasonable in the circumstances as the defendant believed them to be [para 18].  section 76(5A) ruled out the householder defence if the degree of force was "grossly disproportionate" but it was not necessarily ruled out otherwise.  Sir Brian's summary of the law is at para. 33:-

To summarise, on a proper construction of s. 76(5A), its true meaning and effect is:

i) Whether the degree of force used in any case is reasonable is to be considered by reference to the circumstances as the defendant believed them to be (the common law and s. 76(3));

ii) A householder is not regarded as having acted reasonably in the circumstances if the degree of force used was grossly disproportionate (s. 76(5A));

iii) A degree of force that went completely over the top prima facie would be grossly disproportionate

iv) However, a householder may or may not be regarded as having acted reasonably in the circumstances if the degree of force used was disproportionate.

Sir Brian approved a statement by the editors of Blackstone (Criminal Practice, 2016) that:

"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."

At para. 20 Sir Brian stated:

"s. 76(5A), read together with s. 76(3) and the common law on self-defence, requires two separate questions to be put to the jury 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."


There is perhaps a natural tendency to equate reasonableness with proportionality and, as Sir Brian pointed out (para 25) "in almost all cases if the degree of force is proportionate it will also be reasonable but that cannot be to equate the two."  Section 76(5A) permits a defence where the force used was disproportionate but reasonable.  Also, section 76(6)  permits a finding that force which is proportionate is not reasonable.

It would be going much too far to say that this judgment opens the way to householders using excessive force but they certainly have some leeway.  At para 61 Sir Brian said: "The effect of s. 76(5A) is not to give householders carte blanche in the degree of force they use against intruders in self-defence. A jury must ultimately determine whether the householder's action was reasonable in the circumstances as he believed them to be."

A further difficult question can arise in these cases where the defendant had been drinking.  A genuinely held belief may be a mistaken one.  Such a mistaken belief cannot be relied upon where it is attributable to intoxication that was voluntarily induced.  This aspect of the law is not considered further here but the issue could clearly arise in some householder cases where the householder had been drinking (perhaps heavily) at home prior to encountering an intruder.  At para 30 the court said:

"It is also worth noting that the common law (preserved by s. 76 of the 2008 Act) requires an approach which it is at least arguable is unduly restrictive for householders. There is much to be said for the proposition that those who go about in public (or anywhere outside their own homes) must take responsibility for their level of intoxication: thus by s. 76(5) of the 2008 Act, a defendant cannot rely on any mistaken belief attributable to intoxication that was voluntarily induced. Why that should be so in the defendant's own home in circumstances where he is not anticipating any interaction with a trespasser is, perhaps, a more open question but that remains part of the test even in a householder case."

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