The Use of Disproportionate Force in ‘Householder’ Cases and Article 2 of the European Convention on Human Rights
| Author | Adam Jackson |
| DOI | 10.1177/0022018316644342 |
| Published date | 01 June 2016 |
| Date | 01 June 2016 |
| Subject Matter | Court of Appeal |
The Use of Disproportionate Force in ‘Householder’
Cases and Article 2 of the European Convention on
Human Rights
R on the application of Denby Collins (A protected party
by his father and litigation friend Peter Collins) v The
Secretary of State for Justice [2016] EWHC 33 (Admin)
Keywords
Self-defence, householders, reasonable force, disproportionate force, Article 2 ECHR
On 15 December 2013 Denby Collins (DC) entered the home of B as a trespasser at around 3 am. DC was
confronted by B and members of B’s family, having been discovered in possession of B’s wife’s car keys
and later her mobile phone. B, who was 51 years of age and weighed 15½ stones, struggled with DC and
restrained him face down in a headlock for a period of around 6 minutes whilst DC allegedly struggled
against being restrained. B’s wife called the police in a distressed state and requested that police attend as
quickly as possible, indicating that ‘her husband had found ‘‘some bloke’’ in the house and ‘‘he’s trying
to fucking kill him’’’ (at [5]). B can be heard on the recording of the 999 call telling the police to hurry
‘...or else I’ll break his fucking neck’ (at [5]).
When police officers arrived soon after, DC was handcuffed but found to be in an unresponsive state
and not breathing. Although DC’s breathing was quickly restored by paramedics, his injuries caused him
to lapse into a coma from which he is not expected to recover. DC’s family sought a review of the
decision by the CPS not to prosecute B and a review was carried out by a specialist prosecutor at the
Appeals and Review Unit. The lawyer conducting the review upheld the original decision, concluding
that, whilst B may have used disproportionate force in restraining DC, it was unlikely that a jury would
consider the amount of force used by B to be ‘grossly disproportionate’. As such the reviewing lawyer
concluded that there was no realistic prospect that B would be convicted on the basis that, in the context
of householder cases, s. 76(5A) of the Criminal Justice and Immigration Act 2008 (the 2008 Act) allows
disproportionate force to be used in self-defence.
Initially DC (by his father and litigation friend) sought to challenge both the outcome of the review
and the compatibility of s. 76(5A) of the 2008 Act with Article 2 of the European Convention of Human
Rights (ECHR) (and in particular the positive obligation on States to protect an individual’s right to life).
Eventually an application for judicial review proceeded in relation to the compatibility of the s. 76(5A)
householder defence with Article 2 ECHR.
HELD, DISMISSING THE APPLICATION FOR JUDICIAL REVIEW, ‘...s. 76(5A) of the
2008 Act does not extend the ambit in law of the second limb of self-defence but, properly con-
strued ...[permits] a degree of force to be used on an intruder in householder cases which is reasonable
in all the circumstances (whether that degree of force was disproportionate or less than disproportion-
ate)’ (at [70]). The reasonableness or otherwise of the amount of force used is to be determined by the
jury, but the mere fact that the amount of force usedinahouseholdercaseis less than ‘grossly
disproportionate’ does not automatically mean it will be reasonable. Consequently the amendments to
the law of self-defence introduced by s. 76(5A) of the 2008 Act do not offend Article 2 ECHR or the
positive obligations on the state to protect life therein.
166 The Journal of Criminal Law 80(3)
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