Defenceless Castles
| Author | Mark P Thomas |
| Published date | 01 December 2016 |
| DOI | 10.1177/0022018316675543 |
| Date | 01 December 2016 |
| Subject Matter | Comment |
The Journal of Criminal Law
2016, Vol. 80(6) 407–427
Defenceless Castles: The Use
ª The Author(s) 2016
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DOI: 10.1177/0022018316675543
Force by Householders in
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Light of R (Collins) v Secretary
of State for Justice [2016]
EWHC 33 (Admin)
Mark P Thomas
Nottingham Trent University, UK
Abstract
On 16 January 2016, the Divisional Court gave judgment in the case of Collins. In the judgment,
Sir Brian Leveson P provided an authoritative statement as to the meaning of ‘grossly dis-
proportionate’ within the law of self-defence for householders. First introduced in 2013, clarity
on the meaning of the phrase has been long awaited by both the academic and the practitioner.
The court’s interpretation of the phrase has disturbed the understanding of many and will
cause many editions of upcoming criminal law textbooks to be rewritten on this point. This
paper will examine whether the Divisional Court was correct in its interpretation by
attempting to find the true intention of Parliament in drafting the legislation. The paper will also
examine how the householder defences operates in modern practice and its suitability to the
law of self-defence.
Keywords
Householders, self-defence, gross disproportionality, intoxication
Introduction
This comment is concerned with the Divisional Court’s judgment in Collins1 and its effect on the use of
self-defence in ‘householder cases’.2
1. R (Collins) v Secretary of State for Justice [2016] EWHC 33 (Admin), [2016] WLR (D) 13.
2. Criminal Justice and Immigration Act 2008, s 76(8A).
Corresponding author:
Mark P Thomas, Nottingham Law School, Nottingham Trent University, 50 Shakespeare Street, Nottingham, NG1 4FQ, UK.
Email: mark.thomas@ntu.ac.uk
408
The Journal of Criminal Law 80(6)
The article considers the matters and issues that arose in the case itself; namely, the interpretation of
‘grossly disproportionate’ in the context of householder cases.3 It is to be noted that although remarks are
made as to the correctness of the decision itself, this part of the comment will focus more on whether the
Divisional Court has interpreted the provision in accordance with the intention of Parliament. Further,
this article also raises questions of concern that were outside the scope of the facts of the case itself;
namely, how the defence operates when the householder concerned is intoxicated and whether the
defence is appropriate in practice by allowing the defence to be availed for the protection of oneself
but not one’s property.
Legislative Background
There are two main justificatory defences within the criminal law: public and private defence. Public
defence is concerned with allowing an individual to use force for the prevention of a crime or effecting a
lawful arrest, and is provided for on a statutory footing by s. 3 of the Criminal Law Act 1967,4 whereas
private defence is concerned with defence of the individual himself or herself, another person or their
property and has developed through the common law but is now found largely in statute.5 It is the private
defence of self-defence that we are concerned with.
Criminal Justice and Immigration Act 2008
The first wave of legislative reform to the notion of self-defence came with s. 76 of the Criminal Justice
and Immigration Act 2008, which came into force on 14 July 2008. This Act restates the common law on
public and private defence. Section 76(9) provides that ‘this section, except so far as making different
provision for householder cases, is intended to clarify the operation of the existing defences mentioned in
sub-section (2).’ This means that s. 76 does not place self-defence on a statutory footing, but rather,
provides a ‘gloss’6 on the common law position. It remains a common law defence and does not change
the current test that allows the use of reasonable force, which is still governed by the seminal case of
Palmer v R7 and the so called ‘trigger’ and ‘response’ requirements. Indeed, such was made clear by the
Court of Appeal in R v Keane; R v McGrath,8 where it was said that s. 76 is not an exhaustive statement
of the law, but of the basic principles of the common law.
One such basic principle is that a defendant, if voluntarily intoxicated, cannot rely on a mistaken
belief induced by intoxication. This common law principle, as laid down in O’Grady9 and affirmed more
recently in Hatton,10 has also been placed on a statutory basis by s. 75(5), which restates clearly that a
defendant may not avail a defence where his mistake was brought about by his voluntary intoxication. A
key element of this comment will be to question whether this provision is appropriate and applicable to
the ‘householder defence’.
It is important to note that the statutory amendments had no effect on the burden of proof in such
cases, with the common law decisions of Lobell11 and Wheeler12 maintaining the established approach
3. The comment will focus briefly on the arguments proceeded with under Article 2 of the European Convention on Human
Rights and Fundamental Freedoms 1950 (ECHR) as the author feels such is outside the scope of this particular discussion.
4. Its relevance can, of course, be questioned in practice as a result of the decision in R v Duffy [1967] 1 QB 63 (CCA), in which,
despite the enactment of the 1967 Act, the courts continued to talk in terms of the common law rules.
5. Criminal Justice and Immigration Act 2008, s. 76.
6. Explanatory Notes to the Criminal Justice and Immigration Act 2008, para. 532.
7. Palmer v R [1971] AC 814 (PC); approved in R v Mclnnes [1971] 1 WLR 1600 (CA).
8. R v Keane; R v McGrath [2010] EWCA Crim 2514, [2011] Crim LR 393 [6] (Hughes LJ).
9. R v O’Grady [1987] QB 995 (CA).
10. R v Hatton [2005] EWCA Crim 2951, [2006] 1 Cr App R 247.
11. R v Lobell [1957] 1 QB 547 (CCA).
12. R v Wheeler [1967] 1 WLR 1531 (CA).
Thomas
409
of the courts, namely that before the issue of self-defence is left to the jury, there must be ‘some
evidence’,13 whether from the prosecution or the defence, which, if accepted, could raise a prima facie
case of self-defence and that self-defence is not a defence of which ‘any onus rests upon the accused, but
are matters which the prosecution must disprove as an essential part of the prosecution case before a
verdict of guilty is justified.’14
Legal Aid, Sentencing and Punishment of Offenders Act 2012
The subsequent reform came about as a result of s. 148 of the Legal Aid, Sentencing and Punishment of
Offenders Act 2012 (LASPO), which inserted, inter alia, s. 76(6A) into the 2008 Act amending the
position on the duty to retreat.15 This idea of a ‘duty’ to retreat is of extreme practical significance when
one considers householders and how significant a factor it would be that a householder has decided not to
retreat, for example, to a locked room. This will feature as part of the discussion on the ‘ambit’ of the
defence below.
Crime and Courts Act 2013
The most recent legislative reform, and most important for present purposes, is the special provision
made for ‘householder’ cases as introduced by the amendments under s. 43 of the Crime and Courts Act
2013. This section inserted a new category of self-defence, known as ‘householder’ cases, in ss 76(5A)
and (8A)–(8F). In particular, s. 43 of the legislation provides:
(1)
Section 76 of the Criminal Justice and Immigration Act 2008 (use of reasonable force for
purposes of self-defence, etc.) is amended as follows.
(2)
Before subsection (6) (force not regarded as reasonable if it was disproportionate) insert—‘‘(5A)
In a householder case, the degree of force used by D is not to be regarded as having been
reasonable in the circumstances as D believed them to be if it was grossly disproportionate in
those circumstances.’’
(3)
In subsection (6) at the beginning insert ‘‘In a case other than a householder case,’’[ . . . ]
Section 43(2) therefore had the effect of introducing a new category of self-defence by providing that
force used by householders will not be reasonable if it is ‘grossly disproportionate’. It is this statement,
and its link with ‘disproportionate’ force in s. 76(6), that will be the first issue of this comment to
consider. An interesting further addition to the statutory reform of the law came about with s. 76(8A)(a),
which provides that a householder case is a case where ‘the defence concerned is the common law
defence of self-defence’. An immediate question arises here as to whether a householder is entitled to
avail a defence under s. 76 in cases where the force used is not for self-defence, but rather for defence of
property. The legislation appears to rule out the possibility of any such defence of property being
successful for a householder and this will form another key element of this comment.
Facts
At around 3 am on 15 December 2013, Denby Collins entered the home of B,16 a 51-year old builder
weighing 15.5 stone. He entered through the unlocked front door. It is unclear for what purpose Collins
entered the house, whether it be to steal or to harm the occupants; however, he was found to be in
possession of the wife’s car keys in his hand and her mobile telephone in his pocket. What his intention
13. Lobell, above n. 11 at 551 (Goddard CJ).
14. Wheeler, above n. 12 at 1533 (Winn LJ).
15. Now there is no such duty to retreat, but rather, it will be considered as ‘a factor to be taken into account’: s. 148(3).
16. Whose name was anonymised due to the potential proceedings that may be...
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