Self-defence and the Householder – Disproportionate Force May be Unreasonable Even in Defence of the Home
It is now eighteen years since Tony Martin disturbed two burglars in his remote Norfolk farmhouse. He fired at them three times with a shotgun, killing sixteen-year-old Brendan Fearon and seriously injuring the other intruder. His conviction for murder, later reduced to manslaughter by reason of diminished responsibility, set off a public and political debate on how far the normal rules of self-defence, with its requirement that any force used be “reasonable” in the circumstances as the defendant believed them to be, should be relaxed during an invasion of the home.
After a series of other cases, and a number of Private Members’ Bills in the House of Commons, the Government legislated in 2013. Amendments were made to Section 76 of the Criminal Justice and Immigration Act 2008 to provide that:
(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.
Since then, there has been some debate as to how big a change that was to the previous common law rules.
In R v Steven Ray  EWCA Crim 1391 the Court of Appeal gave its view, and the gist of it is that the change is not very significant. A five judge constitution of the Court, presided over by the Lord Chief Justice, was asked to decide whether section 76(5A) had been correctly interpreted by the Divisional Court in R (Denby Collins) v Secretary of State for Justice  2 W.L.R 1303. The appellant sought to persuade the court that, contrary to Denby Collins, sections 5A and 6 (and the other amendments) were intended by Parliament to allow a householder to succeed in a defence of self-defence so long and the force used was not (or may not have been) “grossly disproportionate”. If it was merely disproportionate then the defence for a householder would succeed, whereas a non-householder would be convicted. To hold otherwise, the appellant contended, would put the householder in the same position as a non-householder.
The Court disagreed. The Lord Chief Justice gave the judgment of the Court. He held that the Divisional Court in Denby Collins had correctly interpreted the law. In paragraphs 25-29 he set out the effect of the amendments to section 76. In a householder case, the jury has to ask itself two questions:
(i) First, was the force used grossly disproportionate? If it was, the defence would fail.
(ii) If it was not, the jury should then ask itself whether the force used was reasonable. If the jury concluded the force used was disproportionate it could nevertheless decide it was reasonable in the circumstances as the Defendant believed them to be.
The difference between a householder case and a non-householder case is expressed in s.76(6). If a non-householder uses disproportionate force, that will defeat the defence. If a householder uses disproportionate force then the jury can still decide it was reasonable, but is not bound to do so. Lord Thomas CJ described the difference between the householder and the non-householder as “narrow and not of the wide-ranging effect for which the appellant contended” [paragraph 29].
The judgment of the court then considered whether the parliamentary material which the appellant had submitted supported the Court’s interpretation. The judgment makes clear that the court had considered the material de bene esse and that it was not admissible. It concluded that parliament had intended the law to operate as decided in Denby Collins and now in Ray. As it was put by Damian Green, then Minister of State for Policing and Justice, during the committee stage of the Bill, the new law would mean that “householders … using a disproportionate level of force will not automatically [emphasis added] be regarded as having acted unreasonably and treated as criminals”.
That is the rather delicate distinction which will now be left to juries: in truth, very little has changed.
Brian O’Neill QC