An English Man’s defence of his castle: brief case comment, Colin Witcher

In R (on the application of DC and The Secretary of State for Justice [2016] EWHC 33 (Admin) the High Court considered the law of self-defence in the context of the so-called householder’s defence, contained within 76(5A) of the Criminal Justice and Immigration Act 2008. That provision was inserted by s. 43 of the Crime and Courts Act 2013 and came into force on 25 April 2013. In the High Court, the Applicant sought a declaration addressed to the Secretary of State for Justice to the effect that this provision is incompatible with Article 2 of the European Convention on Human Rights.

The Court found that the plain words of s. 76(5A), read in the context of their statutory setting, their legislative purpose and the common law on self-defence, meant that in householder cases the force used in self-defence is not unreasonable simply because it is disproportionate; unless, of course, it is grossly disproportionate. The circumstances are likely to be rare, but one can envisage, Mr Justice Cranston surmised, force being used by householders in self-defence which is objectively disproportionate but which is reasonable given what they believed those circumstances to be.

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, which are helpfully articulated in the decision of the High Court. Presuming that the defendant genuinely believed that it was necessary to use force to defend himself, the Jury should be asked (it is suggested that this is the appropriate form for a direction to the Jury):

  1. 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;
  2. 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.

The decision is welcomed for the articulation of these two questions which shall no doubt assist solicitors/counsel in advising their clients and, indeed, the Judiciary directing jurors. Those acting in such case would be well advised to read the decision in full:

Published on January 25, 2016 by Colin Witcher

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