Keane & Anor, R. v

Self-defence directions must be tailored to the factual issues the jury may reasonably find. The jury first resolves disputed facts and any genuine belief of the defendant, subject to the rule on intoxication-induced mistake. It then decides objectively whether the force used was reasonable in all the circumstances, allowing for the pressures of an immediate confrontation.

An original aggressor may rely on self-defence only if the other person’s response is so disproportionate that the roles have genuinely reversed. A person who deliberately provokes an expected unlawful punch cannot invoke self-defence against it. Criminal Justice and Immigration Act 2008 does not alter or exhaustively state the law, and need not be recited where its provisions do not arise.

Two appeals against conviction were heard together because each concerned directions on self-defence.

Keane had been convicted of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861. He punched a driver at a petrol station after an earlier confrontation with one of the driver’s passengers. He contended that, even if he had deliberately provoked the driver to strike him, he could use proportionate force in self-defence.

McGrath, aged 18, had been acquitted of murder but convicted of manslaughter after her boyfriend died from a knife wound during an alleged struggle. She challenged the directions on self-defence and the treatment of her police interviews. She also appealed a five-year sentence. The central issues were whether the directions reflected the evidence and whether any deficiencies rendered the convictions unsafe.

1. All appeals were dismissed. Keane’s conviction was safe. McGrath’s conviction for manslaughter was safe, and her five-year sentence was not manifestly excessive.

2. Self-defence ordinarily requires the jury to resolve disputed facts, then to determine any genuinely held belief of the defendant as to the circumstances, and finally to decide objectively whether the response was reasonable or proportionate in all the circumstances. Where a genuine but mistaken belief arises, the defendant is judged on the facts as believed, unless the mistake resulted from voluntarily taken drink or drugs. The reasonable-response question remains for the jury, which must take account of the practical pressures of an immediate confrontation.

3. Criminal Justice and Immigration Act 2008, section 76, did not change the established law or state it exhaustively. A judge need not rehearse the provision in full. Directions must identify the law relevant to the evidential issues and avoid unnecessary topics, including mistaken belief where no such issue arises.

4. Following Burns 1995 SLT 1090, an original aggressor may exceptionally regain self-defence only where the other person’s retaliation is so disproportionate that the roles have reversed. That does not occur merely because the victim reasonably resists. Nor can a defendant deliberately engineer an anticipated punch and treat the victim’s unlawful response as making his own force reasonably necessary.

5. In Keane’s case, the recorder’s direction that self-defence was unavailable if he had deliberately provoked a fight correctly addressed the issue. Although the jury could have been given clearer assistance on the competing factual accounts, the omission did not render the conviction unsafe.

6. In McGrath’s case, there was no evidential basis for a direction on a reversal of roles. On her own account, taking and holding the knife were one contemporaneous act. The decisive question was therefore whether introducing the knife into the struggle was a reasonable response. The unnecessary direction on mistaken belief was an error, but did not create unfairness because the jury was directed to the correct issue and its question showed that it understood that issue.

7. Where a defendant has not given evidence but relies on an account in police interviews, the jury should receive at least a summary of that account. The omission here was a deficiency, but the account was simple, repeatedly identified in the trial, and could not have been misunderstood by the jury.

1. Court of Appeal (Criminal Division) Dismissed Keane’s appeal against conviction and McGrath’s appeals against conviction and sentence: [2010] EWCA Crim 2514.

2. Trial proceedings Keane was convicted of grievous bodily harm. McGrath was acquitted of murder, convicted of manslaughter, and sentenced to five years’ imprisonment. The trial court and lower-court citations are not stated in the judgment.