Ray, R v

In a householder self-defence case under the Criminal Justice and Immigration Act 2008, the jury must decide whether the force used was reasonable in the circumstances as the defendant believed them to be. Force which was grossly disproportionate can never be reasonable. Force which was disproportionate but not grossly disproportionate may be reasonable, but is not thereby conclusively reasonable. The ultimate question remains reasonableness in all the perceived circumstances. Directions should focus on that practical inquiry and explain the greater latitude available to a householder. Abstract distinctions between disproportionate and unreasonable force will rarely assist a jury.

The appellant was convicted of murder at the Crown Court at Sheffield before Males J. He had stabbed the deceased during an altercation after the deceased entered the home where the appellant and the deceased’s former partner were present. He admitted the stabbing but relied on self-defence.

With leave of the Full Court, he appealed against his conviction. The trial judge had directed the jury in accordance with R (Denby Collins) v The Secretary of State for Justice [2016] EWHC 33 (Admin). The central issue was whether that decision correctly construed section 76(5A) of the Criminal Justice and Immigration Act 2008 in a householder case.

Decision

1. Appeal dismissed. The court held that R (Denby Collins) v The Secretary of State for Justice [2016] EWHC 33 (Admin) correctly construed the householder defence.

2. Once the jury have determined the circumstances as the defendant genuinely believed them to be, section 76(3) requires it to decide whether the degree of force used was reasonable. In a householder case, section 76(5A) requires the jury first to decide whether the force was grossly disproportionate. If it was, the force cannot be reasonable and self-defence fails.

3. If the force was not grossly disproportionate, the jury must still decide whether it was reasonable in all the circumstances as the defendant believed them to be. Force which is disproportionate but falls short of gross disproportionality is not necessarily reasonable. It may nevertheless be reasonable because the 2013 amendment gives a householder a limited additional latitude. By contrast, section 76(6) makes disproportionate force unreasonable in a non-householder case.

4. The court saw no basis for admitting the Parliamentary statements under the principle in Pepper v Hart [1993] AC 593. Considered in any event, they accorded with the statutory construction reached from the text.

5. Directions should not ordinarily invite juries to make abstract distinctions between disproportionate and unreasonable force. After ruling out force which was completely over the top, the jury should focus on whether the prosecution has proved the force unreasonable in the circumstances as the defendant believed them to be. The judge may explain the particular pressures of confronting an intruder at home, while making clear that there is no duty to retreat and that grossly disproportionate force can never be reasonable.

• Court of Appeal (Criminal Division): In [2017] EWCA Crim 1391, dismissed the appeal and affirmed the construction of the householder self-defence provisions adopted in R (Denby Collins) v The Secretary of State for Justice.
• Crown Court at Sheffield (Males J): The appellant was convicted of murder by a majority of 11 to 1 and sentenced to life imprisonment with a minimum term of 12 years, less time spent on remand.