Opening the Door to Vindication: Reviewing the Evidential Bases for the ‘Householder Defence’
| Author | James J Ball,Mark Thomas |
| DOI | http://doi.org/10.1177/00220183221124770 |
| Published date | 01 October 2022 |
| Date | 01 October 2022 |
| Subject Matter | Case Notes |
Opening the Door to Vindication:
Reviewing the Evidential Bases
for the ‘Householder Defence’
R v Magson [2022] EWCA Crim 1064
Keywords
Householder defence, self-defence, murder, summing up, evidential basis, householder, trespasser
Section 76 Criminal Justice and Immigration Act (CJIA) 2008, as amended by s 43 Crime and Courts Act
2013, introduced the so-called ‘householder case’into our domestic law. This householder provision
amended the common law of self-defence to refine the degree of force a householder might legitimately
use in defence of themselves or another. By s 76(5A), the force used by a householder will not be con-
sidered reasonable if it is grossly disproportionate in the circumstances. Force may still be reasonable,
however, even if the force used is disproportionate; the statute provides some additional protection for
the householder in this case compared to their non-householder counterpart in s 76(5) (R v Ray [2017]
EWCA Crim 1391, [2018] QB 948). However, in order to rely on the householder defence, evidence
must exist which shows that, amongst other things, the defendant was not a trespasser at the time of
using force within a dwelling, and that the defendant believed the victim to be in, or entering, the build-
ing, or part of it, as a trespasser. Magson concerned a set of facts where no evidential basis existed (either
expressly or by implication) to show that the defendant believed the victim to be a trespasser.
In 2016, the appellant, Emma-Jayne Magson (M), was convicted of the murder of James Knight (K).
M’s conviction was overturned on appeal, however, in 2020, and a retrial was ordered. In March 2022,
following her retrial, M was convicted of murder on the same indictment.
M and K were in a relationship, living together at M’s house. The relationship was, however, volatile
with K leaving the house for short periods following arguments between the pair. In March 2016, M and
K returned to M’s residence following a night out, having engaged in a violent argument at a bar and
during a taxi ride home, which resulted in K pushing M to the ground. At this point, the version of
events differs between the prosecution and the defence.
The prosecution case was that when M and K reached the house, M entered alone, and K banged on the
door for ten minutes asking to be allowed in. M armed herself with a knife and stabbed him in the chest
after opening the front door. The defence case, on the other hand, was that M and K entered the house
together, where K accused M of having an affair. K left the house by the front door and M went to shut it
after him. However, before the door could be closed, K kicked it open, re-entered the house, and kicked
M in a way which made her fall to the ground. M claimed to then walk into the kitchen, where K put his
hand around M’s neck and pushed her against the sink. M’s defence statement was similar to the prepared
statement that she made after the charge, namely that K tried to ‘throttle’her over the sink and that she
acted in fear when stabbing him. For reasons which will be discussed later in this case note, it is important
to note that M did not assert that K was a trespasser either before or at trial, nor did she demonstrate in
evidence that she believed K was a trespasser.
The learned trial judge, Jeremy Baker J, provided the jury with written directions on the law relating to
self-defence, which included (at [15]):
Case Note
The Journal of Criminal Law
2022, Vol. 86(5) 372–376
© The Author(s) 2022
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DOI: 10.1177/00220183221124770
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