Collins, R (on the application of) v The Secretary of State for Justice

Section 76(5A) of the Criminal Justice and Immigration Act 2008 does not replace the common-law requirement that force used in self-defence must be reasonable in the circumstances as the defendant believed them to be. In a householder case, grossly disproportionate force cannot be reasonable. Force which is disproportionate but not grossly disproportionate may nevertheless be reasonable, depending on all the circumstances. The jury must therefore ask two separate questions: whether the force was grossly disproportionate and, if not, whether it was nevertheless reasonable. The provision gives householders a discretionary area of judgment, but does not provide carte blanche to use force against intruders. Properly understood, the statutory framework provides reasonable safeguards against offences against the person and is compatible with Article 2(1) of the ECHR.

The claimant suffered serious injury after being restrained by a householder following entry into a private home. The Crown Prosecution Service decided not to prosecute the householder, applying the view that acquittal would follow unless the force was grossly disproportionate. The challenge to the CPS decision was abandoned, but the claimant maintained that this construction of section 76(5A) was incompatible with Article 2 of the ECHR.

The Divisional Court considered the proper construction of the householder provision, its relationship with common-law self-defence, and whether the resulting criminal-law framework adequately deterred offences against the person.

1. Construction of section 76(5A). Section 76(3) preserves the common-law standard that the degree of force must be reasonable in the circumstances as the defendant believed them to be. Section 76(5A) excludes grossly disproportionate force from being reasonable in a householder case, but does not make every lesser degree of force reasonable.
2. Direction to the jury. Where the defendant genuinely believed that force was necessary, the jury should ask: (i) was the force grossly disproportionate in the circumstances as the defendant believed them to be? If so, self-defence is unavailable; and (ii) if not, was the force nevertheless reasonable in those circumstances? Disproportionality and reasonableness are separate questions.
3. The statutory qualification creates a discretionary area of judgment for householders. It permits force which might objectively be described as disproportionate to be reasonable in particular circumstances, while retaining the statutory consideration of retreat and the guidance that a person acting honestly and instinctively may be unable to weigh the exact measure of necessary action.
4. The CPS reviewing lawyer applied the wrong test by treating any force short of gross disproportionality as lawful. That error did not determine the judicial review claim because the challenge to the CPS decision had been abandoned.
5. Article 2. Article 2(1) requires an effective criminal-law and law-enforcement framework capable of deterring offences against the person. It does not require the substantive criminal law governing private householders to satisfy the strict-proportionality standard in Article 2(2), which concerns deprivation of life resulting from state use of force. The law of self-defence, including section 76(5A), provided reasonable safeguards and was compatible with Article 2(1).
6. Parliamentary reports and speeches could not be treated as authority on compatibility. The court’s task under the Human Rights Act 1998 was to determine compatibility itself, although limited background material might in an appropriate case assist in assessing proportionality.
7. The application for judicial review was dismissed.