Cheeseman v R

The householder defence in section 76(8A)(d) of the Criminal Justice and Immigration Act 2008 is not confined to intruders who entered unlawfully. It is available where the defendant believed that the other person was in the premises as a trespasser, including a person who entered lawfully but was believed later to have no right or authority to remain.

The tribunal should address that practical question, rather than property-law technicalities. Even thin evidence of that belief may require the issue to be left to the fact-finder. A misdirection is nevertheless immaterial where the findings show that the defendant did not genuinely believe force was necessary for self-defence.

The appellant, an Army corporal, stabbed and injured another serviceman in his room in forces accommodation after the other man had remained there, locked the appellant out, and damaged the room and its contents. The appellant was prosecuted for attempted murder but was acquitted of that count. On 4 May 2018, the Court Martial convicted him of wounding with intent to do grievous bodily harm.

He had advanced self-defence and sought to rely on the statutory householder defence. The Judge Advocate-General ruled that the defence did not extend to a person who entered lawfully but later became a trespasser, and that there was no evidence that the appellant believed the injured serviceman was a trespasser. The appeal concerned whether those rulings were wrong and, if so, whether the conviction remained safe.

Appeal dismissed. The Judge Advocate-General erred in his construction of the householder defence and in withholding it from the Board. The conviction was nevertheless safe because the Board’s findings showed that the appellant did not genuinely believe force was necessary to defend himself.

1. Section 76(8A)(d) of the Criminal Justice and Immigration Act 2008 asks whether the defendant believed the other person to be in, or entering, the relevant building as a trespasser. It does not require a belief that the person originally entered as a trespasser. The enhanced defence is therefore not limited to classic intruder cases.
2. The statutory question concerns the defendant’s belief, not the technical property-law status of the other person. A direction should ask whether the defendant believed that the person had no right or business to be there, or was there without authority, when the violence occurred.
3. R (Denby Collins) v Secretary of State for Justice [2016] EWHC 33 (Admin) and R v Steven Jason Ray [2017] EWCA Crim 1391 concerned the distinct relationship between gross disproportionality, disproportionality and reasonable force. In a householder case, force that is grossly disproportionate cannot be reasonable; force that is not grossly disproportionate must still be assessed for reasonableness in all the circumstances as believed by the defendant.
4. Although the evidence that the appellant believed the injured serviceman to be a trespasser was thin, it was capable of raising the issue. The Board should therefore have decided it.
5. The Board had, however, rejected self-defence altogether. Its sentencing findings showed that the appellant acted after losing control in anger and did not genuinely believe that force was necessary. That threshold finding meant that the statutory householder issue could not have affected the verdict.

• Court Martial Appeal Court: The appeal against conviction was dismissed: [2019] EWCA Crim 149.
• Court Martial, Military Court Centre, Colchester: On 4 May 2018, the Board acquitted the appellant of attempted murder but convicted him of wounding with intent to do grievous bodily harm.