Defence of Property and Reasonable Force

Gill was appealing against his conviction of wounding with intent (s.18 Offences Against the Person Act 1861). He had entered a guilty plea to other charges of conspiracy to import Class A (cocaine) and Class B drugs (cannabis), the appellant also entered a guilty plea to possession of criminal property (£106,000 proceeds of crime).

The case arose from the execution of a search warrant, by the police, at the appellant's home. At 06.00, eight police officers entered the appellant's home by using a battering ram. When battering the door with the ram, the police did not identify themselves as police officers nor make it known that they were entering the property with a search warrant. However, the first officer to enter the property shouted, ‘Police’, and within a matter of mere seconds, there were audible screams from both the appellant and the officer; the appellant admitted to stabbing the officer in the arm. The appellant claimed he was woken up by the noise of the battering ram on the front door, and he then armed himself with a knife as he held a genuine fear that those entering the property were involved in drugs or his criminal activity. The body-worn video evidence of one officer shows the appellant dropping the knife immediately after causing injury and highlighted that he did not recognise that those entering the property were police officers. The issue on appeal was whether or not the appellant's action during the police raid was ‘grossly disproportionate’. Under s.76(5A) Criminal Justice and Immigration Act 2008, the degree of force used by a householder would not be regarded as reasonable if it was ‘grossly disproportionate’. This differs from a plea of self-defence by a non-householder where ‘disproportionate’ force would be considered unreasonable. Defence counsel encouraged the trial judge to reflect on his directions to the jury, citing R v Ray (Steven Jason) [2017] EWCA Crim 1391, where reference was made to the modified self-defence direction which was outlined in the Crown Court Compendium (pp 18–9 June 22 ed.). At trial, the Crown agreed that his actions fell within the scope of s.76(5A), but the trial judge objected on the basis it could not have been Parliament's intention to allow those committing serious offences (the charges in which the D entered a guilty plea) to benefit from such a defence. Therefore, the directions from the judge to the jury did not make reference to the householder test contained within s.76(5A).

Held: Allowing the appeal. The Court of Appeal disagreed with the trial judge when he claimed the appellant could not benefit from s.76(5A). The facts of the case allowed him to benefit from the provisions contained within the legislation, provided that when the officer was injured, the appellant believed that the officer was entering or already inside the property, as a trespasser, as stipulated in s.76(8). In ignoring the statutory provision, the judge attempted to infer what the intention of parliament was rather than simply applying the legislation as it stands. The intention of parliament is abundantly clear in the legislation – a householder cannot lose the benefit of s.76(5A) simply because they have admitted their guilt to other criminal acts and the judge's directions and route to verdict were contrary to law. The judge's direction differed from the example in the Crown Court Compendium, which differentiated between the tests of standard self-defence and householder defence. The judge failed to clarify to the jury that the issue in question was whether the appellant was a householder. The jury were not asked whether the appellant believed the officer to be in or entering the house as a trespasser (pursuant to s.76(8)). The directions did not reflect the fact the appellant could avail himself of the legislative protections afforded by s.76(5A). The question of whether the appellant acted in self-defence was central to this case. The Court of Appeal stated, ‘the conviction will be rendered unsafe unless we are satisfied that, on the whole of the facts and with a correct direction, the only reasonable and proper verdict would have been one of guilty … we do not feel able to say that, had a correct direction been given, on the facts of this case the only reasonable and proper verdict would have been one of guilty. We will therefore allow the appeal, quash the conviction and order a re-trial’ (at [41–42]).

Commentary

The central point to this case was whether the appellant acted in self-defence when he stabbed the police officer in the arm. As the Court of Appeal stated, if the prosecution failed to make the jury sure that this was not the case, he was entitled to be acquitted (at [13]). The relevant legislation in this case can be found in s.76 Criminal Justice and Immigration Act 2008, the relevant sub-sections will be examined in this commentary. Section 76 allows a person to use the defence of self-defence or defence of property or use of force in the prevention of a crime or making an arrest. The central question is what is reasonable in the circumstances (s.76(1) and (2)). To answer this question, the jury must be certain that the ‘… degree of force used by the D was reasonable in the circumstances [and this] is to be decided by reference to the circumstances as D believed them to be…’. Therefore, the pivotal element to the success of this defence is the subjective belief around the circumstances that the D believed existed at the time. Under s.76(4), if the D claims to have held a particular belief as regards the existence of any circumstances—

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

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—

it was mistaken, or

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

s.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.

To clarify what is defined as a householder case, s.76(A) offers a clear definition. It occurs where:

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

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),

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

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

To understand if the force was reasonable we turn to s.76(6A). This subsection affords a possibility that D could have retreated, which 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. Section 76(7)(a) states ‘a person acting for a legitimate interest purpose may not be able to weigh to a nicety the exact measure of any necessary action’ and (b) ‘[the] evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that the only reasonable action was taken by that purpose’.

The court acknowledged the difference between a householder and a non-householder case. Mr Justice Griffiths explained that ‘[t]he difference between the two cases, therefore, is that, when it comes to reasonableness, the householder benefits from a heightened ceiling of whether the degree of force used was “grossly” disproportionate in the circumstances as the appellant believed them to be; whereas the ceiling in the case of a non-householder is whether the degree of force was “disproportionate,” not “grossly disproportionate,” in those circumstances’ (at [17]). Using the case of R (Denby Collins) v The Secretary of State for Justice [2016] EWHC 33 (Admin); [2016] QB 862 (at para 20), when reading s.76(5A) and s.76(3), if the appellant genuinely believed that it was necessary to use force to defend himself, there are two questions that need to be put to the jury:

Was the degree of force the appellant 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;

Was the degree of force the appellant 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.

This route to verdict was approved by the case of Ray [2017] EWCA Crim 1391, where Lord Thomas CJ said, ‘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’ (at [25]). Thomas CJ went on to say that the jury must consider whether that degree of force was reasonable, taking into account all the circumstances as the appellant 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. (at [26]).

The Court of Appeal had no doubt that the trial judge was wrong to say that D was not entitled to benefit from s.76(5A) as when the police officer was injured, ‘the D believed him to be in, or entering, the house as a trespasser’ (at [31]). Therefore, it satisfied the provisions of s.76(8A) and thus afforded the appellant the heightened ceiling of a householder defence. The trial judge's original argument that he could not avail himself of the statutory defence afforded to householders because of his guilty plea to other criminal activities was inherently wrong. The Court of Appeal said that ‘The result of committing criminal acts is that the perpetrator is subject to the penalties of the law, and not that he is removed from its protections, unless there is a law which says so [which] [t]he Criminal Justice and Immigration Act 2008 does not say so’ (at [33]). After carefully examining the judge's instructions, the Court of Appeal found they did not reflect the ‘additional latitude to which the D was entitled’ (at [39]). Therefore, the jury were ‘misdirected on the issue of self-defence’ (at [40]). As a result of the misdirection, the Court did not believe the verdict was safe and ordered a re-trial (at [42]).

The Court accepted the appellant's belief that the officers entering the property were intruders who were connected to drugs or related to his other criminal activity. This was evidenced by the body-worn camera of the officers, which showed him immediately dropping the knife and, upon restraint, indicate he did not recognise those entering as police officers (at [12]). Ultimately, this was the key question for the jury – what did the D believe the circumstances to be? Section 76(4) states that the belief does not need to be reasonable, and the only relevant question is whether he genuinely held that belief. If the jury acknowledged that he genuinely held this belief, it matters not if it were a mistake or if it was unreasonable. This question ought to have been put to the jury for consideration, and it should not have been excluded by the original trial judge. Whilst this case does not mean a householder can attack police officers who conduct dawn raids with immunity from criminal sanction, it simply means the jury needs to consider if the Defendant's belief that those entering the house were trespassers related to drugs and/or other criminal activity, was subjectively honest, not reasonable. He is then entitled to have his use of force measured against the circumstances he believed to exist. It is immaterial that D had already entered a guilty plea to other criminal offences; he ought to have benefitted from the statutory provisions afforded to householders.