Ray, R v

The issue in this appeal which is brought with the leave of the Full Court is whether s.76(5A) of the Criminal Justice and Immigration Act 2008, which provides the defence of self defence for the so-called “householder case”, was correctly interpreted by the Divisional Court in R (Denby Collins) v The Secretary of State for Justice [2016] EWHC 33 (Admin), [2016] QB 862. That decision, given by a court presided over by the President of the Queen’s Bench Division sitting with Cranston J, is not binding on this court.

The deceased, Rory Hemmings, had for some years lived at an address in Sheffield with Kirsty Allen and their two children. It was her evidence that the relationship with the deceased had been a violent one, particularly if he had been drinking. On one occasion in 2008 he had held a knife to her throat. She had often had to call the police when she got to the end of her tether. Eventually she had ended the relationship, although the deceased remained under the same roof for a while until he got a flat of his own.

She then began a relationship with the appellant. She told the deceased about it. Her evidence was that he hated the relationship and threatened to smash both their faces in. Her evidence was that the appellant was never violent towards her or her children and had not “bad mouthed” the deceased in front of the children. In November 2015 there were various incidents, including one on 6 November when there had been an altercation between the deceased and the appellant. Despite this incident, which occurred when the deceased had come to collect or return the children, there had been other occasions between then and 14 November when he had come to the house but there had been no problems.

On 14 November the appellant and Kirsty Allen were at home. Some abusive texts were sent by the deceased that evening. That evening the deceased was at a party when he was told by a friend that he had slept with Kirsty Allen; it appears that made him very angry.

On the morning of Sunday 15 November Kirsty Allen was awoken by banging on the door. When she opened it the deceased burst in shouting and swearing. She described him as being very angry, particularly as the appellant was in the house. There was evidence that the appellant tried to calm the situation and to get the deceased to leave the premises. The two men started fighting and the children started screaming. Kirsty Allen said she was very frightened.

In the course of that altercation, the appellant stabbed the deceased.

An ambulance was immediately summoned. Whilst they waited for the ambulance the appellant performed CPR on the deceased. The medical evidence was that the cause of death was a single stab wound, 6 to 10 cm in depth, from the knife which had measured 11 cm. The degree of force required could not be established with certainty but it was possible that only mild force was used because the knife had not come into contact with resistance from bone or cartilage.

The appellant’s evidence was that during the fight in the kitchen he thought that the deceased had a weapon. He had made movements towards his pocket, but had not produced anything. The deceased was holding on to the kitchen units so that he could not be pulled away. His hand was on the drainer next to a knife. The appellant feared the deceased would reach for it and use it so in one quick motion the appellant himself grabbed the knife and stabbed the deceased. He did not mean to stab him but did so because he was scared for himself.

The appellant was charged with murder and tried at the Crown Court at Sheffield before Males J and a jury in May 2016. The appellant admitted stabbing the deceased but contended he had acted in self defence. The judge summed the case up in accordance with the decision in Denby Collins. Intent was also a live issue at trial.

On 11 May 2016 he was convicted by a majority of 11 to 1 of murder. He was sentenced to life imprisonment with a minimum period of 12 years, less time on remand.

The defence of self defence was developed at common law. Although it might have been suggested by some authors at various times that any force used in defence of self or property was lawful, the common law developed so that there was a requirement that the force used be reasonable: see the note Using Force on Burglars by Professor John Spencer: [2016] 6 Archbold Review.

In the leading judgments, the law was made clear. For example, in Palmer v R [1971] AC 814 Lord Morris of Borth y Gest, in giving the judgment of the Privy Council, made the point that:

“In their Lordships' view the defence of self-defence is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. It requires no set words by way of explanation. No formula need be employed in reference to it. Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. Of these a jury can decide. It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have to avert the danger by some instant reaction.”

This view was recently echoed by the Vice-President of this Court, Hughes LJ as he then was, in R v Keane, R v McGrath [2010] EWCA Crim 2514, [2010] Crim LR 393, when he commented that the law as developed was not complicated: it represented “a universally recognised common sense concept”. At paragraph [5] he stated:

“It is however very long established law that there are usually two and sometimes three stages into any enquiry into self-defence. There may be more, but these are the basic building blocks of a large proportion of the cases in which it is raised:

1.

If there is a dispute about what happened to cause the defendant to use the violence that he did, and there usually is such a dispute, then the jury must decide it, attending of course to the onus and standard of proof.

2.

If the defendant claims that he thought that something was happening which the jury may find was not happening, then the second question which arises is what did the defendant genuinely believe was happening to cause him to use the violence that he did? That question does not arise in every case. If it does arise then whether his belief was reasonable or not, providing it is genuinely held, he is to be judged on the facts as he believed them to be unless his erroneous belief is the result of voluntarily taken drink or drugs, in which event it is to be disregarded.

3.

Once it has thus been decided on what factual basis the defendant's actions are to be judged, either because they are the things that actually happened and he knew them or because he genuinely believed in them even if they did not occur, then the remaining and critical question for the jury is: was his response reasonable, or proportionate (which means the same thing)? Was it reasonable (or proportionate) in all the circumstances? Unlike the earlier stages which may involve the belief of the defendant being the governing factor, the reasonableness of his response on the assumed basis of fact is a test solely for the jury and not for him. In resolving it the jury must usually take into consideration what are often referred to as the “agony of the moment” factors.”

From about 2004, after a number of cases involving householders including R v Martin [2001] EWCA Crim 2245, [2003] QB 1, private members’ bills were brought forward designed to provide for an absolute defence where force was used in the home in defence of another person or property, unless the force used was grossly disproportionate. These did not pass. However, the then Government pledged in 2007 to review the law of self defence.

The result was s.76 of the Criminal Justice and Immigration Act 2008 (the 2008 Act) which after reaffirming the common law defence of self defence set out some of the applicable principles. Its effect, as originally enacted, was summarised in R v Keane at paragraph 6:

“For the avoidance of doubt, it is perhaps helpful to say of s. 76 three things: (a) it does not alter the law as it has been for many years; (b) it does not exhaustively state the law of self-defence but it does state the basic principles; (c) it does not require any summing-up to rehearse the whole of its contents just because they are now contained in statute.”

In 2010, the Coalition Agreement setting out the programme for the newly elected Government contained an express commitment to ensure that people “have the protection they need when they defend themselves against intruders.”

S. 43 of the Crime and Courts Act 2013 (the 2013 Act) was the result of this commitment. It provided for a redefined application of the law of self defence, as set out in the 2008 Act (as amended by s.148(1)-(5) of the Legal Aid Sentencing and Punishment of Offenders Act 2012), to those who defended themselves, described as householders, against intruders.

Although the issue in this appeal turns principally on subsection (5A) of the 2008 Act as amended, it is necessary to set out much of s.76 as amended; the amendments made in 2013 are in italics:

“(1)

This section applies where in proceedings for an offence—

(a)

an issue arises as to whether a person charged with the offence ("D") is entitled to rely on a defence within subsection (2), and

(b)

the question arises whether the degree of force used by D against a person ("V") was reasonable in the circumstances.

(2)

The defences are—

(a)

the common law defence of self-defence;

…

(3)

The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be, and subsections (4) to (8) also apply in connection with deciding that question.

(4)

If D claims to have held a particular belief as regards the existence of any circumstances—

(a)

the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but

(b)

if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not—

(i)

it was mistaken, or

(ii)

(if it was mistaken) the mistake was a reasonable one to have made.

(5)

But subsection (4)(b) does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced.

(5A) 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.

(6)

In a case other than 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 disproportionate in those circumstances.

(6A) In deciding the question mentioned in subsection (3), a possibility that D could have retreated is to be considered (so far as relevant) as a factor to be taken into account, rather than as giving rise to a duty to retreat.

(7)

In deciding the question mentioned in subsection (3) the following considerations are to be taken into account (so far as relevant in the circumstances of the case)—

(a)

that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and

(b)

that evidence of a person having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.

(8)

Subsections (6A) and (7) are not to be read as preventing other matters from being taken into account where they are relevant to deciding the question mentioned in subsection (3).

(8A) For the purposes of this section "a householder case" is a case where—

(a)

the defence concerned is the common law defence of self-defence,

(b)

the force concerned is force used by D while in or partly in a building, or part of a building, that is a dwelling or is forces accommodation (or is both),

(c)

D is not a trespasser at the time the force is used, and

(d)

at that time D believed V to be in, or entering, the building or part as a trespasser.

(8B) – (8E)…..

(9)

This section, except so far as making different provision for householder cases, is intended to clarify the operation of the existing defences mentioned in subsection (2).

(10)

In this section—

(a)

"legitimate purpose" means—

(i)

the purpose of self-defence under the common law, …

(b)

references to self-defence include acting in defence of another person; and

(c)

references to the degree of force used are to the type and amount of force used.”

In Denby Collins the President of the Queen’s Bench Division concisely summarised the effect of the amendment at paragraphs 20-22 and 33-34:

“20.

Thus, 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.

21.

[Counsel for the Crown] submitted that where a defendant has gone completely over the top, such actions would be grossly disproportionate, unless there was some material or reason that pointed against that conclusion. For my part, I consider that such an approach could well be useful for a jury tasked with the responsibility of understanding what is meant by the concept of gross disproportionality.

22 On the plain words of s. 76, a jury should consider these two questions disjunctively….

….

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.

34.

This represents no more than a refinement to the common law on self-defence. …. The position is better expressed by the editors of Blackstone's Criminal Practice, 2016 edition, para A3.63 which makes it clear:

“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.””

We would add that the view expressed in Blackstone is the same as that set out in Smith and Hogan, 14^th edition, at pages 434-7.

It was contended by Mr Shaun Smith QC on behalf of the appellant that the President’s interpretation of s.76 in Denby Collins had in effect put the position of the householder in the same position as a non-householder; the interpretation thus, he said, had not provided the protection that Parliament had clearly intended. Parliament had intended that if the jury were satisfied that the use of force was not, or may not have been, grossly disproportionate, then the degree of force used must in law be regarded as reasonable and the defence of self defence will have been made out.

Mr McGuinness QC for the prosecution submitted that the decision in Denby Collins was correct for the reasons set out in the judgment of the President.

In our view the interpretation placed in Denby Collins on the householder’s defence under s.76 of the 2008 Act as amended by the 2013 Act was correct.

Once the jury have determined the circumstances as the defendant believed them to be, the issue, under s.76(3), for the jury is (as it always has been at common law) whether, in those circumstances, the degree of force used was reasonable.

In determining the question of whether the degree of force used is reasonable, in a householder case, the effect of s. 76 (5A) is that the jury must first determine whether it was grossly disproportionate. If it was, the degree of force was not reasonable and the defence of self defence is not made out.

If the degree of force was not grossly disproportionate, then the effect of s.76(5A) is that the jury must consider whether that degree of force was reasonable taking into account all the circumstances of the case as the defendant believed them to be. The use of disproportionate force which is short of grossly disproportionate is not, on the wording of the section, of itself necessarily the use of reasonable force. The jury are in such a case, where the defendant is a householder, entitled to form the view, taking into account all the other circumstances (as the defendant believed them to be), that the degree of force used was either reasonable or not reasonable.

The terms of the 2013 Act have therefore, in a householder case, slightly refined the common law in that a degree of force used that is disproportionate may nevertheless be reasonable.

As subsection (6) makes clear, in a non-householder case the position is different; in such a case the degree of force used is not to be regarded as reasonable if it was disproportionate

Thus in our judgment the amendments to s.76 put the householder relying on self defence in a position different from all others relying on the defence. This is clear on the language of the Act. But it is narrow and not of the wide-ranging effect for which the appellant contended. We accordingly reject the contention that provided the degree of force used by a householder is not grossly disproportionate then it is necessarily reasonable.

We were asked by the appellant to consider (and did so de bene esse) the debates that had taken place in Parliament on the 2013 Act. Although we could see no basis on which the statements made by the then Home Secretary or the then Minister of State were admissible under the principle in Pepper v Hart [1993] AC 593, we have set the statements out as they are in line with our interpretation and that reached in Denby Collins which we have affirmed:

Finally, we were referred to the Explanatory Note to the 2013 Act and to a Ministry of Justice Circular No. 2013/02 dated 26 April 2013, shortly before the provision came into force in May 2013.

These are again entirely consistent with the statements of the then Home Secretary and the then Minister of State.

Whilst, by the terms of s.76(5A) and (6), Parliament has drawn a distinction in a householder case between a degree of force used which is disproportionate and a degree of force used which is not reasonable, the wording of the section does not elucidate what that distinction is. That presumably is to be ascertained by each case being considered by reference to the particular circumstances in which the individual householder finds himself. At all events it certainly is not likely to assist juries, or to be comprehended by juries, if they are presented with esoteric and conceptual distinctions between what is “disproportionate” on the one hand and what is “unreasonable” on the other hand. The kinds of debate on these concepts in which lawyers, academics and judges have engaged in administrative law cases cannot sensibly be translated in practical terms to jury trials.

As is evident from the judgment in Keane, the words “disproportionate” and “unreasonable” can in some contexts be regarded as synonymous, albeit, as we have explained, in s.76(5A) and (6) they are not. It will nevertheless very rarely be helpful for judges to attempt explicitly in a summing up to distinguish between what is “disproportionate” and what is “unreasonable”. The focus of the jury in the context of a householder case ultimately should be on what is reasonable or unreasonable in the particular circumstances. In the overwhelming majority of cases it therefore should neither be necessary nor helpful in a summing up to use language referring expressly to the contrast between disproportionate and unreasonable force; because once the jury have concluded that the degree of force used was not grossly disproportionate the sole issue is whether the degree of force used was unreasonable in the circumstances. That should be the focus for the jury. That was the approach taken in the judgment of the President in Denby Collins at paragraph 20, which we endorse.

It nevertheless may not always be easy for a jury readily to appreciate the task that faces them in a householder case. It is therefore important that when summing up in cases where the householder’s defence is raised the judge gives some colour to the issue of self defence which arises. It may be helpful to explain to the jury in general terms that Parliament has conferred a greater latitude in cases of a householder in his own home, for reasons they will doubtless readily understand. It can be pointed out that what might be an unreasonable degree of force used when confronting an aggressive individual in a club might not be so when used by a householder confronting an intruder in his own home. That is why it is particularly important that the jury assess the defendant's actions by reference to the circumstances in which he found himself and as he believed them to be – a point that can then be illustrated and expanded in the summing up with the detail appropriate to the case. However, it must of course be made clear to the jury that the use of force that is grossly disproportionate (completely over the top, in ordinary language) can never be reasonable.

It would, in our view, generally be helpful also to explain to the jury in such a case in everyday language the dilemma that would confront any householder when an intruder enters his or her house. The householder is entitled to some latitude as to the degree of force used; if the jury do not regard the degree of force as being completely over the top they need carefully to examine all the circumstances in determining whether the prosecution have proved that the degree of force used was unreasonable. It is this context that differentiates the householder case.

It would often be helpful, for that purpose, to spell out the kind of circumstances which the jury should consider in determining whether the degree of force used by a householder was reasonable. These might, for example, include the shock of coming upon an intruder, the time of day, the presence of other help, the desire to protect the home and its occupants, the vulnerability of the occupants, particularly children, or the picking up of an object (such as a knife or stick that would lawfully be to hand in the home), the conduct of the intruder at the time (or on any relevant previous occasion if known to the defendant). Each of these might lead to the view that what was done, such as using a knife, which otherwise in a different context might be unreasonable, in the circumstances of a householder coming on an intruder might, in all the circumstances of such a case, be reasonable.

Another useful illustration may be the question of retreat. S. 76(6A) makes clear that there is no duty to retreat; the possibility of retreat is but a factor in determining whether the degree of force used was reasonable. If there is a threat of confrontation in the street, then the option to retreat may be important in determining whether the use of any force was reasonable. In the case of an intruder in the home, however, the option of retreat is unlikely to arise in many cases and therefore the degree of force used, although otherwise appearing to be disproportionate, might nonetheless be assessed as reasonable.

For the reasons we have set out, the appeal is dismissed.