Defence of Property and Reasonable Force
| Published date | 01 December 2024 |
| DOI | http://doi.org/10.1177/00220183241292471 |
| Author | Ed Johnston |
| Date | 01 December 2024 |
Defence of Property and Reasonable
Force
R v Gill [2023] EWCA Crim 259
Keywords
Defence of property, reasonable force, self-defence, jury directions, trespassers
Gill was appealing against his conviction of wounding with intent (s.18 Offences Against the Person Act
1861). He had entered a guilty plea to other charges of conspiracy to import Class A (cocaine) and Class
B drugs (cannabis), the appellant also entered a guilty plea to possession of criminal property (£106,000
proceeds of crime).
The case arose from the execution of a search warrant, by the police, at the appellant’s home. At 06.00,
eight police officers entered the appellant’s home by using a battering ram. When battering the door with
the ram, the police did not identify themselves as police officers nor make it known that they were enter-
ing the property with a search warrant. However, the first officer to enter the property shouted, ‘Police’,
and within a matter of mere seconds, there were audible screams from both the appellant and the officer;
the appellant admitted to stabbing the officer in the arm. The appellant claimed he was woken up by the
noise of the battering ram on the front door, and he then armed himself with a knife as he held a genuine
fear that those entering the property were involved in drugs or his criminal activity. The body-worn video
evidence of one officer shows the appellant dropping the knife immediately after causing injury and high-
lighted that he did not recognise that those entering the property were police officers. The issue on appeal
was whether or not the appellant’s action during the police raid was ‘grossly disproportionate’. Under
s.76(5A) Criminal Justice and Immigration Act 2008, the degree of force used by a householder
would not be regarded as reasonable if it was ‘grossly disproportionate’. This differs from a plea of self-
defence by a non-householder where ‘disproportionate’force would be considered unreasonable.
Defence counsel encouraged the trial judge to reflect on his directions to the jury, citing R v Ray
(Steven Jason) [2017] EWCA Crim 1391, where reference was made to the modified self-defence direc-
tion which was outlined in the Crown Court Compendium (pp 18–9 June 22 ed.). At trial, the Crown
agreed that his actions fell within the scope of s.76(5A), but the trial judge objected on the basis it
could not have been Parliament’s intention to allow those committing serious offences (the charges in
which the D entered a guilty plea) to benefit from such a defence. Therefore, the directions from the
judge to the jury did not make reference to the householder test contained within s.76(5A).
Held: Allowing the appeal. The Court of Appeal disagreed with the trial judge when he claimed the
appellant could not benefit from s.76(5A). The facts of the case allowed him to benefit from the provi-
sions contained within the legislation, provided that when the officer was injured, the appellant believed
that the officer was entering or already inside the property, as a trespasser, as stipulated in s.76(8). In
ignoring the statutory provision, the judge attempted to infer what the intention of parliament was
rather than simply applying the legislation as it stands. The intention of parliament is abundantly clear
in the legislation –a householder cannot lose the benefit of s.76(5A) simply because they have admitted
their guilt to other criminal acts and the judge’s directions and route to verdict were contrary to law. The
Case Note
The Journal of Criminal Law
2024, Vol. 88(5-6) 394–397
© The Author(s) 2024
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/00220183241292471
journals.sagepub.com/home/clj
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