Regina v Emma-Jayne Magson

The statutory householder defence modifies the ordinary self-defence inquiry only where there is an evidential basis that the defendant was not a trespasser and believed the victim to be a trespasser. Disproportionate force is not automatically unreasonable in such a case, but grossly disproportionate force cannot be reasonable in the circumstances as believed. A direction is unnecessary where the evidence does not raise that belief. An omitted statutory direction does not render a conviction unsafe where acceptance of the defendant’s account would have required acquittal and the verdict shows that account was rejected. Factual findings open on the evidence and a sentence that is not arguably manifestly excessive do not justify leave to appeal.

Emma-Jayne Magson was convicted of murder at the Crown Court at Birmingham following a retrial. Her earlier conviction in 2016 had been overturned on appeal in 2020. She appealed against conviction, arguing that the jury should also have been directed on the statutory householder defence under the Criminal Justice and Immigration Act 2008. She maintained that the deceased had attacked her inside her home and that she had acted in self-defence. She also renewed her application for leave to appeal against the life sentence and 17-year minimum term imposed after the retrial. The central issues were whether the householder defence arose on the evidence and whether the conviction or sentence was unsafe or arguably excessive.

Conviction

1. The appeal against conviction was dismissed. Common-law self-defence has a subjective limb, concerning whether the defendant believed or may have believed that force was necessary, and an objective limb, concerning whether the force was reasonable in the circumstances as the defendant believed them to be.
2. The Criminal Justice and Immigration Act 2008 provides a statutory gloss on the objective limb in a householder case. Disproportionate force is not automatically unreasonable, although force that is grossly disproportionate in the circumstances as believed cannot be regarded as reasonable. This approach was explained in R (Collins v Secretary of State for Justice) [2016] EWHC 33 (Admin) and approved in R v Ray [2017] EWCA Crim 1391.
3. Under section 76(8A), the householder defence raises two factual questions: whether the defendant was not a trespasser when force was used, and whether the defendant believed the victim to be a trespasser. The latter question concerns the defendant’s belief, rather than the victim’s legal status. R v Cheeseman [2019] EWCA Crim 149 was applied.
4. The defence requires an evidential basis, although the belief may be inferred from the circumstances and need not be confirmed by a formal question to the defendant. Here, there was no evidence or suggestion that the appellant believed the deceased to be a trespasser. His residence in the property and possession of a key made that absence unsurprising. The householder direction therefore did not arise.
5. In any event, the omission could not have affected the result. If the jury had believed the appellant’s account that she had used the knife while being throttled, they would have been bound to acquit under ordinary self-defence. The guilty verdict showed that the jury rejected that account, so the conviction was safe.

Sentence

On retrial, the sentencing judge was bound by Schedule 2 paragraph 2(1) of the Criminal Appeals Act 1968 not to impose a more severe sentence than that imposed after the original conviction. The agreed 15-year starting point under Schedule 21 paragraph 5 of the Sentencing Act 2020 was adopted. The findings of fact were open on the evidence, and the judge had considered the relevant aggravating and mitigating factors, including abuse, childhood trauma, mental health and remorse. There was no arguable basis that the sentence was manifestly excessive. The renewed application for leave to appeal against sentence was refused.

• Court of Appeal (Criminal Division): In [2022] EWCA Crim 1064, the appeal against conviction was dismissed and the renewed application for leave to appeal against sentence was refused.
• Crown Court at Birmingham: Following retrial, the appellant was convicted of murder and sentenced to life imprisonment with a minimum term of 17 years, less 136 days served on remand.
• Earlier proceedings: An earlier 2016 murder conviction was overturned on appeal in 2020 and a retrial was ordered. No citation for that appellate decision was stated in the judgment.