Houseguests, trespassers and the use of reasonable force in ejectment
| Author | Tony Storey |
| Published date | 01 December 2015 |
| DOI | 10.1177/0022018315619268b |
| Date | 01 December 2015 |
| Subject Matter | Court of Appeal |
Houseguests, trespassers and the use of reasonable force in ejectment
RvDay [2015] EWCA Crim 1646, Court of Appeal
Keywords
Assault occasioning actual bodily harm, common assault, self-defence, ejectment
Edina Day (D) was charged with assaulting Jac Jones (J), occasioning actual bodily harm, contrary to s.
47 of the Offences Against the Person Act 1861 (OAPA). She appeared before HH Judge Cottle and a
jury at Bristol Crown Court in June 2014 and entered a plea of not guilty.
In November 2013, D was staying overnight at a friend’s student accommodation in Clifton, Bristol.
This consisted of a flat comprising three bedrooms, one occupied by D’s friend, Hannah Smeaton (S),
one by another female, Shubnah Miah, and one by J. The alleged assault occurred in the early hours of
the morning when D pushed J out of S’s bedroom (where D was going to be sleeping). Over the course of
the evening, D, J and S had argued about J playing loud music in his room. Subsequently, while D was in
S’s bedroom getting ready for bed, J and S were arguing in the living room. D asked J to come into the
bedroom to talk, but the discussion became heated and D asked J, who had by his own admission been
drinking, to leave S’s room. She warned him that if he did not leave, she would shut the door on him. J
told the jury that he presumed that she meant leave the flat, and not just the bedroom. He stood his
ground, saying he paid rent. At that point, J told the jury ‘She got up and stood really close to me. She
was squaring up to my face. She said ‘‘say it again’’ and with that she pushes me with both hands in the
chest, causing me to fall backwards and crack my head on the bathroom door frame.’ An ambulance was
called and J was taken to hospital where he was given 10 staples to close up a head gash.
HH Judge Cottle directed the jury on self-defence but refused to allow D to also rely on the common
law right of householders to use reasonable force to eject trespassers (‘ejectment’), because D was only
S’s guest in the flat. He said, ‘She was there as a guest. So I reject that, and say that she has no defence
arising from that.’ The jury acquitted D of the s. 47 OAPA offence (on the basis that J’s injuries were not
caused by D’s push), but convicted her of common assault. She appealed to the Court of Appeal con-
tending that the defence of ejectment was available to anyone who was in lawful occupation of property.
HELD, ALLOWING THE APPEAL, the judge had been wrong not to allow D to invoke the eject-
ment defence. That defence was ‘not only available to the owner or resident of the place in question, but
generally if the relevant person is in lawful occupation. Such a person is entitled to use reasonable force
to evict an unwanted trespasser’ (at [6]). According to Laws LJ, giving the judgment of the court:
‘The jury might well have concluded that this young woman, partly clad at night-time, did no more than seek
to eject a drunk from her room. If the judge had directed the jury that [D] was in all the circumstances entitled
to use reasonable force to get [J] out of her bedroom, it is clearly possible that they might have accepted that
that was all she did and acquitted her’. (at [9])
Commentary
Causation in s. 47 OAPA Cases
It appears that the jury acquitted D of the offence charged on the basis that J’s injuries were self-inflicted
after J had ‘theatrically fallen backwards following what had in fact been a gentle push’ (at [3]). The
present case therefore illustrates the proposition that the ‘daft’ or ‘unexpected’ response of the victim
of an assault or battery may be sufficient to break the causal chain in a s. 47 case. As Stephenson LJ
explained in RvRoberts (1972) 56 Cr App R 95, in which V jumped from a moving car and sustained
injury amounting to actual bodily harm after the driver, D, attempted to remove her coat:
Court of Appeal 391
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