R Denby Collins (A protected party by his father and litigation friend Peter Collins) v The Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson P,Mr Justice Cranston |
| Judgment Date | 15 January 2016 |
| Neutral Citation | [2016] EWHC 33 (Admin) |
| Docket Number | CO/5790/2014,Case No: CO/5790/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 January 2016 |
[2016] EWHC 33 (Admin)
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
Mr Justice Cranston
Case No: CO/5790/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Paul Bowen Q.C. and Malcolm Birdling (instructed by Hickman & Rose) for the Claimant
Clare Montgomery Q.C. and Tom Little (instructed by Government Legal Department) for the Defendant
Hearing dates: 17 November, 7 December 2015
This application involves the so-called householder's defence, contained within 76(5A) of the Criminal Justice and Immigration Act 2008 ("the 2008 Act"); the provision was inserted by s. 43 of the Crime and Courts Act 2013 and came into force on 25 April 2013. In its final amended form, the application seeks a declaration addressed to the Secretary of State for Justice ("Secretary of State") to the effect that this provision is incompatible with Article 2 of the European Convention on Human Rights ("ECHR").
In summary, in the early hours of the morning on 15 December 2013, Denby Collins (then 39 years of age) was in the home of B (who has been anonymised so as not to prejudice any prosecution that might flow depending on the resolution of this claim) when he was restrained at least in part by means of a headlock; as a result of this restraint, he has suffered serious personal injury from which he is not expected to recover. There was a police investigation following which the Crown Prosecution Service (CPS) decided not to prosecute B; this decision was upheld following a Review by a specialist prosecutor at the Appeals and Review Unit. Initially, Mr Collins (by his father and litigation friend) sought both to challenge the decision of the Director of Public Prosecutions (DPP) on the basis that the CPS had wrongly directed itself as to the appropriate test and the Secretary of State under the Human Rights Act 1998. The claim against the DPP has been abandoned but the construction placed on the legislation by the CPS is used to support the allegation of incompatibility.
Although the issue before the court turns on the proper construction of s. 76(5A) of the 2008 Act and its interrelation with the law of self defence, the factual matrix within which the issue is being analysed is important not least because it is necessary to ensure that the court is not being asked to decide what is or may be a hypothetical question. In that regard, it must also be underlined that the family of Mr Collins do not accept the accuracy of the factual conclusions reached following the police investigation but it is those facts which it is accepted must form the basis of the arguments advanced on the application.
The Facts
In addition to B, overnight at his home were his wife C, three of his children D, E and F (who was 13 years old) and three friends (G, H and I). As he was entitled to in his own home, B had consumed a considerable quantity of alcohol (as, is accepted, had D, G and H). Into this property, at around 3.00 am, entered Denby Collins: he did so through the unlocked front door and went upstairs where he was confronted by D who chased him downstairs into the living room where B had fallen asleep while watching television. B, who is 51 years of age, a builder weighing approximately 15 1/2 stones, struggled with Mr Collins and forced him in a headlock to the floor. Mr Collins resisted and others helped B. He was asked who he was and what he was doing; when he did reply, he said he was Fred West and that he was there to see the Queen. B noticed that he had his wife's car keys in his hand and the police later recovered her mobile phone from his pocket.
B asserted (as did the other witnesses) that he was restraining Mr Collins until the police came but there is no doubt that emotions were high. C called the police at 03:18:10; she was in a distressed state asking the police to hurry as her husband had found "some bloke" in the house and "he's trying to fucking kill him". At some stage, B is heard to say "I'll fucking kill you" and shouting to tell the police to get there now "… or else I'll break his fucking neck". The CPS reviewer observed that everyone sounded "very panicked and distressed". He also later recognised that these statements could amount to evidence that B had "gone over the top in the force he used", but for reasons which he identifies, he concludes that "on close examination, I think it would be wrong to interpret them in this way". He summarises that the comments were:
"… unlikely to be regarded by a jury as measured statements of intent, but rather are likely to be viewed as highly emotional outbursts which, if anything, can be interpreted as an emotional plea from them to receive urgent police assistance."
It appears that Mr Collins was placed in a neck lock and held face down such that the period of restraint was "some six minutes in duration". The first officers on the scene noted a comment by D that Mr Collins was a "fucking junky, he's got needles on him and he is fucking burgling my mum's house, he was fighting us". Having placed handcuffs on him, the officer then noticed that Mr Collins was not moving, his face was purple in complexion and he was not breathing. An officer formed the impression that his condition was either due to positional asphyxia or because he had taken something. One of those present said "He was screaming and shouting at us a second ago; he's putting it on".
An ambulance was called and paramedics managed to restore breathing. Although no medical evidence has been obtained, the reviewing lawyer approached the case on the basis that by restraining Mr Collins in a headlock, B had caused him to lose consciousness and was therefore responsible for his being comatose. Neither did he obtain evidence as to the degree of force which would have been necessary to cause unconsciousness and consequent brain damage. He proceeded on the basis:
"that [B] applied as much force as a man of his age, weight and fitness level could in order to try and control [Mr Collins] in the circumstances as [B] perceived them to be. Consequently, the force used might have been considerable, yet still reasonable."
In that regard, Paul Bowen Q.C. on behalf of Mr Collins points to concerns about the way in which the investigation was undertaken, the differences between various accounts and the contradictions between those accounts and the 999 audio recordings. On the other hand, one of the dominant features of the evidence of those who provided statements was to the effect that Mr Collins was 'very strong', 'putting up a good fight', struggling 'like mad', 'going crazy' and 'really fired up'. In relation to Mr Collins' character, some potential corroboration for that assessment comes from an earlier incident on 13 April 2013 (referring to his mental health issues) when it was noted that it took four police officers to detain him as he became 'very violent' and was 'extremely strong'.
In any event, the lawyer conducting the review on behalf of the CPS (which, as I have said is no longer challenged) concluded on the facts that it was highly likely that a jury would assess the lawfulness of the force used against the following factual basis:
"i. that [Mr Collins] was an intruder;
ii. that the occupants of the house believed that he could have been a burglar, or that he could have been there to commit another crime;
iii. that his strange behaviour caused those present a considerable amount of concern, alarm and fear;
iv. that [B] restrained [Mr Collins] by putting him in a headlock face down on the floor and that [the police records] and recorded timings of the 999 calls, indicate that the period of restraint was approximately six minutes;
v. that the police were called as soon as possible after [Mr Collins] was confronted and restrained and that it was [B] that suggested that the police be called;
vi. that during the struggle on the floor [B] threatened to kill [Mr Collins] and that C told the police that [B] was trying/going to kill [him];
vii. that contrary to the accounts provided, at least two people present expressed concern about [Mr Collins'] welfare whilst he was being restrained, and that the first expression of concern was voiced around 2 minutes before the police arrived."
Against that background, the lawyer concluded that a jury was likely to find that B honestly believed that it was necessary to use force until the police arrived and also that at least one of the purposes for which B used force was to defend himself, it being "beyond any doubt" that he believed Mr Collins to be a trespasser, and that the 'householder' provisions within s. 76 of the 2008 applied. He went on:
"This means that [B] would be acquitted of any offence of violence unless the prosecution proved that the degree of force used was grossly disproportionate. The use of disproportionate force would not be unlawful."
Analysing the circumstances, he concluded that the method of restraint would be viewed as proportionate and that it would be "very difficult" to prove that the continuation of his restraint up until the police arrived would be viewed as being grossly disproportionate. He went on:
"It is difficult for a person in circumstances such as these to measure precisely what level of force is required, and to reiterate, if that person does no more than seems honestly and instinctively to be necessary that is itself potent...
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