Interpreting the Contours of Self-Defence within the Boundaries of the Rule of Law, the Common Law and Human Rights

Publication Date01 October 2015
Date01 October 2015
DOI10.1177/0022018315603591
AuthorCatherine Elliott
SubjectArticles
Article
Interpreting the Contours of
Self-Defence within the
Boundaries of the Rule of
Law, the Common Law and
Human Rights
Catherine Elliott
The City Law School, City University London, UK
Abstract
The Crime and Courts Act 2013 has amended s. 76 of the Criminal Justice and Immigration Act
2008 on the amount of force a person can use in self-defence. The amended provision poses a
dilemma for the courts: it states that only reasonable force can be used by a householderagainst
a trespasser, but adds that force is unreasonable if it is grossly disproportionate. Until now, the
courts have treated reasonable force and proportionate force as synonyms. This article sug-
gests that the amended s. 76 should be interpreted to comply with the rule of law, incorporating
the idea of equality before the law and legality. The courts should respect the traditional
common law concept of reasonableness which is an impartial, objective concept that plays an
important role across the whole of the criminal legal system. In addition, the article points out
that the Act must be interpreted, where possible, in accordance with the European Convention
on Human Rights to avoid the problems that arose with the defence of lawful chastisement.
Keywords
Self-defence, force, reasonable, burglar, proportionate, Criminal Justice and Immigration Act
2008, Crime and Courts Act 2013
Introduction
The rights of householders to use force to defend their property against burglars is an emotive issue
which has been the subject of considerable public and political debate. The Crime and Courts Act
2013
1
has amended s. 76 of the Criminal Justice and Immigration Act 2008 (CJIA 2008) on the amount
of force a person can use in self-defence. The amended provision poses a dilemma for the courts: it states
Corresponding author:
Catherine Elliott, The City Law School, City University London, Northampton Square, London, EC1 V 0HB, UK.
E-mail: C.Elliott@city.ac.uk
1. At s. 43.
The Journal of Criminal Law
2015, Vol. 79(5) 330–343
ªThe Author(s) 2015
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DOI: 10.1177/0022018315603591
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