Yaman & Anor v R.

Under Criminal Justice and Immigration Act 2007, section 76, the need to use force is assessed by reference to the defendant’s honest belief, while the reasonableness of the force is assessed objectively in the circumstances as the defendant believed them to be. A mistaken belief may be relied on if genuinely held. Its objective reasonableness is relevant only to whether it was genuinely held.

A jury must be directed on an undisputed belief as an established circumstance. It must then decide whether force was honestly thought necessary and whether the force used was reasonable in those believed circumstances. Honest and instinctive action for a legitimate defensive purpose is strong evidence of reasonable force. A material misdirection does not make a conviction unsafe if a properly directed jury would inevitably have found the force unreasonable.

Tolga Yaman and his mother, Cenaz Yaman, appealed convictions following a trial in the Crown Court at Cardiff. Tolga Yaman was convicted of wounding with intent and possessing an offensive weapon. Cenaz Yaman was convicted of doing an act tending and intended to pervert the course of public justice.

The prosecution alleged that Tolga Yaman struck a locksmith with a hammer when the locksmith and two others entered the family kebab shop to disconnect the gas supply. The defence case was that he believed the men were burglars and acted in self-defence. Cenaz Yaman denied removing the hammer.

The appeals concerned wrongful bad-character evidence, the directions on self-defence, and the direction on reasonable excuse for possessing the hammer.

1. The appeals were allowed in part. Tolga Yaman’s conviction for possessing an offensive weapon was quashed. His appeal against the wounding conviction was dismissed. Cenaz Yaman’s appeal was dismissed.

2. The trial judge materially misdirected the jury on self-defence. Under section 76 of the Criminal Justice and Immigration Act 2007, the jury had to assess the necessity for force by reference to the circumstances as Tolga Yaman honestly believed them to be. The reasonableness of the force then had to be assessed objectively in those believed circumstances. The undisputed belief that the three men were burglars should not have been left as an issue for the jury, nor should the jury have been invited to assess whether that belief was reasonable.

3. The judge also failed to direct the jury on section 76(7)(b). If Tolga Yaman had only done what he honestly and instinctively thought necessary for a legitimate defensive purpose, that was strong evidence that his action was reasonable. The correct questions were whether he honestly believed force was necessary when confronting three apparent burglars, and then whether the force was reasonable in that situation as he believed it to be.

4. Despite those misdirections, the wounding conviction was safe. Even assuming that Tolga Yaman honestly believed force was necessary and acted instinctively, a properly directed jury would inevitably have found it unreasonable to strike a seated man on the head with a hammer, intending grievous bodily harm, immediately on entering the shop when none of the men had acted aggressively.

5. The conviction for possessing the hammer was unsafe. If the jury found that he possessed it, they required directions on the elements of reasonable excuse, including the principles governing defence of persons and property and the prevention of crime. The judge’s direction effectively told them to convict if they were sure he had the hammer.

6. The wrongful reference to earlier unpaid gas bills did not make either remaining conviction unsafe. The judge gave a clear direction to disregard it, and there was no reason to think that the jury failed to comply. The result on the wounding count did not affect Cenaz Yaman’s conviction for removing and concealing the hammer.

• Court of Appeal (Criminal Division). In [2012] EWCA Crim 1075, the court quashed Tolga Yaman’s offensive-weapon conviction, but dismissed his appeal against the wounding conviction and dismissed Cenaz Yaman’s appeal.
• Crown Court at Cardiff. Tolga Yaman was convicted of wounding with intent and possessing an offensive weapon. Cenaz Yaman was convicted of doing an act tending and intended to pervert the course of public justice.