A Householder's Right to Kill or Injure an Intruder under the Crime and Courts Act 2013: An Australian Comparison
| Author | Ian Dobinson,Edward Elliott |
| DOI | 10.1350/jcla.2014.78.1.894 |
| Published date | 01 February 2014 |
| Date | 01 February 2014 |
| Subject Matter | Article |
80 The Journal of Criminal Law (2014) 78 JCL 80–97
doi:10.1350/jcla.2014.78.1.894
A Householder’s Right to Kill
or Injure an Intruder under the
Crime and Courts Act 2013:
An Australian Comparison
Ian Dobinson* and Edward Elliott**
Abstract Section 43 of the Crime and Courts Act 2013 has amended s. 76 of
the Criminal Justice and Immigration Act 2008 such that a person may be
acquitted in a case of self-defence in his or her own home where he or she
uses disproportionate, but not grossly disproportionate, force against an
intruder. This extends to circumstances where a householder intentionally
kills such an intruder. This amendment, a result of Conservative Party policy,
appears to be based on populist appeal and a response to certain high-profile
cases. By comparison, Australian home invasion legislation imposes limita-
tions on the rights of a householder to kill in circumstances such as a home
invasion. In addition, a number of Australian jurisdictions provide for a
partial defence of excessive self-defence. Section 43 provides only that the
disproportionate force used by a householder be reasonable in the circum-
stances as the householder believed them to be. Further to this, the
amendments are vague, ambiguous and likely to create significant uncertainty.
Keywords Home invasion; Self-defence; Castle doctrine; Dispropor-
tionate force; Partial defence
On 10 May 2012, the Crime and Courts Bill 2012 was introduced to the
House of Lords, and subsequently read for the first time in the House of
Commons on 19 December 2012. The Bill received Royal Assent on 25
April 2013, and subsequently became the Crime and Courts Act 2013. The
Bill had numerous objectives, relating to the administration of courts,
reform of immigration laws, dealing with proceeds of crime, and so on.
One objective, however, which is the topic of this article, is to reform the
law of self-defence in the case of a home owner in his or her own home
acting against an intruder. Clause 30 of the Bill proposed to achieve this
via the amendment of s. 76 of the Criminal Justice and Immigration Act
2008 (hereafter ‘the 2008 Act’).1
In discussing what was cl. 30, the Justice Secretary, Chris Grayling,
stated that the purpose of this Bill was to give more legal protection to
those householders who used force when confronted by burglars in their
residences.2 Where such force was necessary and reasonable then the
* Senior Lecturer, Faculty of Law, UTS; e-mail: Ian.Dobinson@uts.edu.au.
** Solicitor admitted in NSW; e-mail: eddiee@gmail.com.
1 Clause 30 of the Bill became s. 43 of the Crime and Courts Act 2013.
2 O. Bowcott, ‘Plan to allow “disproportionate force” against burglars included in crime
bill’, Guardian, 25 November 2012, available at http://www.guardian.co.uk/law/2012/
nov/25/disproportionate-force-burglars-crime-bill, accessed 9 December 2013.
A Householder’s Right to Kill or Injure an Intruder
81
existing law entitled the householder to an acquittal. What was lacking,
according to Grayling, was further protection to those householders who
used disproportionate force in such circumstances.
Grayling made it clear that grossly disproportionate force would still
lead to a conviction which could be murder in circumstances of an
intention to kill or inflict grievous bodily harm. However, householders
who used disproportionate force, but less than grossly disproportionate
force, could still be deemed to have used reasonable force in accordance
with s. 76.
As it stands, s. 76 still preserves the common law defence of self-defence3
and provides statutory guidance on the methodology to be applied when
determining whether a defendant’s use of force in a purported situation of
self-defence was reasonable. For example, the section provides that a
defendant is entitled to rely upon a genuine but mistaken belief as regards
the existence of any circumstance,4 unless the mistake was caused by
intoxication,5 and if a person honestly and instinctively believes his or her
actions were necessary for a legitimate purpose,6 then that is ‘strong
evidence that only reasonable action was taken by that person’.7 Prior to
the amendment, however, the section did not differentiate between cases
of self-defence that occur in one’s home or elsewhere, such as on the
street. It applied equally to any situation where self-defence was raised.
In 2012, s. 76 was amended by s. 148 of the Legal Aid, Sentencing and
Punishment of Offenders Act 2012.8 This amendment added the common
law defence of defence of property to the list of defences9 covered by s. 76
as well inserting a new provision under subs. (6A), which states that:
In deciding the question mentioned in subsection (3), a possibility that D could
have retreated is to be considered (so far as relevant) as a factor to be taken into
account, rather than as giving rise to a duty to retreat.10
The effect of subs. (6A) is significant in that it appears to abolish a duty to
retreat.11 Whether there has been any form of retreat is now only a factor,
along with others, to be considered as part of ‘the circumstances as D
believed them to be …’.12
3 Criminal Justice and Immigration Act 2008, s. 76(2)(a).
4 Criminal Justice and Immigration Act 2008, s. 76(4).
5 Criminal Justice and Immigration Act 2008, s. 76(5).
6 Defined to mean the common law purpose of self-defence or for effecting a lawful
arrest: Criminal Justice and Immigration Act 2008, s. 76(10).
7 Criminal Justice and Immigration Act 2008, s. 76(7).
8 By the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement
No. 8) Order 2013 made 11 May 2013; s. 148 came into force on 14 May 2013.
9 As such, the defences now covered under s.76 are self-defence (s. 76(2)(a)), defence of
property (s. 76(2)(aa)), prevention of crime, and effecting or assisting in a lawful arrest
(s. 76(2)(b)). A ‘householder case’ only arises, however, where the defence is self-
defence (s. 76(8A)).
10 Criminal Justice and Immigration Act 2008, s .76(6A).
11 The duty to retreat is explained in Part 2 below and was a prerequisite in the UK to
pleading self-defence (R v Julien [1969] 1 WLR 839; R v McInnes [1971] 1 WLR 1600)
until R v Bird [1985] 1 WLR 816 where it was held that whether a person retreated is a
factor to be taken into account, but failure to retreat does not absolutely prohibit
reliance on self-defence.
12 Criminal Justice and Immigration Act 2008, s. 76(3).
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