The initial arrest of a pensioner
for the killing of an intruder into his home has led to concern from various
newspapers and social media commenters regarding the extent to which homeowners
are able to defend themselves during a burglary. In this post, I will
discuss the law on self-defence and, particularly, how it applies to
‘householder cases’.
Facts
Henry Vincent, 37, and another
man broke into the home of Richard Osborne-Brooks, 78, attempting to burgle the
property. Osborne-Brooks and his disabled wife, 76, were at home in bed during
the break in. Osborne-Brooks discovered the other man and Vincent, who was
armed with a screwdriver. After a struggle in the kitchen, Osborne-Brooks
fatally stabbed Vincent with Vincent's screwdriver, and the other man escaped.
Osborne-Brooks was later arrested on suspicion of murder and interviewed by
police, but later released without charge.
Self-defence
In essence, a person is permitted
to use reasonable force in defending themselves. S.3 of the Criminal Law Act 1967
states:
‘a person may use such force as is reasonable in the circumstances in
the prevention of crime, or in effecting or assisting in the lawful arrest of
offenders or suspected offenders or of persons unlawfully at large’.
The defendant must genuinely
believe the level of force he used was reasonable regardless of whether that
genuine belief was incorrect. Where self-defence is raised, the burden of proof
rests on the prosecution to prove, beyond reasonable doubt, that the defendant
did not act in reasonable self-defence.
It may be useful to point out, as
Osborne-Brooks was suspected of murder (though not charged), had he been tried
for murder and raised self-defence, if the prosecution failed to disprove self-defence,
he would be not guilty of murder. Unlike other defences specific to murder,
such as loss of self-control or diminished responsibility, self-defence is a
complete defence, in the sense that he would be found not-guilty. Conversely, loss of
self-control, for example, if the prosecution fails to disprove it, would
result in a conviction for manslaughter.
What is reasonable force?
In determining what is considered
‘reasonable force’, the Privy Council in Palmer [1971] AC 814 gives guidance,
stating:
‘…everything will depend upon the particular facts and circumstances…It
may in some cases be only sensible and clearly possible to take some simple
avoiding action. Some attacks may be serious and dangerous. Others may not be.
If there is some relatively minor attack it would not be common sense to permit
some action of retaliation which was wholly out of proportion to the
necessities of the situation. If an attack is serious so that it puts someone
in immediate peril then immediate defensive action may be necessary. If the
moment is one of crisis for someone in imminent danger he may have to avert the
danger by some instant reaction’.
‘…a person cannot weigh to a nicety the exact measure of his defensive
action. If the jury thought that in a moment of unexpected anguish a person
attacked had only done what he honestly and instinctively thought necessarily
that would be the most potent evidence that only reasonable defensive action
had been taken.’
Palmer demonstrates there is no set formula for what reasonable
force is, as what is reasonable would be entirely dependant on the
circumstances. The determination is made based on what the defendant believed
at the time, even if his assessment was mistaken, except where that mistake was
induced by intoxication. There is not even a requirement that a person must
wait until he is struck first. If it is reasonably necessary, a person may use
reasonable force in acting as the initial aggressor, as held in R v Deana, 2 Cr.App.R. 75.
More controversially, as held in R v Martin (Anthony) [2002] 1 Cr.App.R
27, CA, though the court can take account of physical characteristics in
deciding what force was reasonable, unless there were exceptional
circumstances, it could not take account of the defendant’s psychiatric
condition.[1] In R v Oye [2014] 1 Cr.App.R 11 CA, it was
held that a person who was insane cannot set the standard of reasonable force
by reference to his own insanity.[2]
In a householder case, these
factors above, if relevant, will be considered in determining whether a
defendant used reasonable force, but there is also an additional factor to
consider, namely s.76(5A) of the Criminal Justice and Immigration Act 2008.
Householder cases
There is a special feature for
‘householder’ cases in the form of s.76(5A), and, had Osborne-Brooks been
tried, if he relied on self-defence, the jury would be required to consider
this statutory provision in addition to the ordinary assessment of
reasonableness. Whilst in practice what s.76(5A) may change is particularly
slight, its consideration is nonetheless required as part of a jury’s decision
as to what was reasonable.
S.76(5A) of the Criminal Justice
and Immigration Act 2008 was introduced to bolster the protection of homeowners
who used force against intruders. The provision provides that in a householder
case, the degree of force used by the defendant, is ‘not to be regarded as having been reasonable in the circumstances as
(he) believed them to be if it was grossly disproportionate in those
circumstances’.
This differs from the following
provision at s.76(6), which covers a non-householder case, and uses the same
language, but excludes the word ‘grossly’. From this, a grossly
disproportionate level of force in a householder case will not be considered
reasonable, whereas in a non-householder case, a disproportionate level of
force will not be considered reasonable. This was perhaps an odd distinction to
make, which led to the Court of Appeal having clarifying the law.
In the Court of Appeal’s
clarification, Ray [2017] EWCA Crim
1391 held that in a householder case, a jury must first establish the facts,
and decide in those circumstances whether the degree of force used was
reasonable or not. Then, if the jury decides the degree of force was not
grossly disproportionate, s.76(5A) requires considering if the degree of force
was reasonable taking account of all the circumstances as the defendant
believed them to be. If the degree of force was grossly disproportionate, the
defence cannot succeed. It held that s.76(5A) does not mean that the use of
disproportionate force, which falls short of grossly disproportionate, is
automatically reasonable. However, it does mean that disproportionate force, so
long as it is not grossly disproportionate, may be reasonable in a householder case, whereas in a
non-householder case, it will not be.
The court also said that the
judge should be careful in summing up to the jury in a householder case, and
should explain that Parliament has conferred a greater latitude in such cases,
and what ‘might be an unreasonable degree
of force used when confronting an aggressive individual in a club might not be
so when used by a householder confronting an intruder in his own home.’[3] As
with any other case of self-defence however, there is no carte blanche on the
level of force a homeowner can inflict, and a careful consideration of what in
the circumstances was reasonable is, still, required.
Osborne-Brooks’ case
As it is impossible to know the
full details of what occurred the night Vincent and his accomplice broke into
Osborne-Brooks’ house, trying to make an assessment of what was reasonable
based on the facts reported in media outlets would inevitably involve conjuring
details. Whilst there may be concern by members of the public that a person
could be prosecuted in such a case, reassurance can be sought that wider
parameters are afforded to householders in these cases, and all of the
circumstances will be considered. Only when force used appears to be
unreasonable should a decision to prosecute be taken. As no such charge against
Osborne-Brooks was made, it is fair to assume the police considered his actions
to be reasonable in the circumstances.
Concern and outrage may be
directed to the fact that Osborne-Brooks was arrested in the first place. Though
it might reasonable to point out that as a loss of life had occurred, a
thorough and prudent investigation is entirely necessary. At the very least, a
police interview with proper cautions given would be required to ascertain what
happened. His information in explaining how Vincent came to have been killed
would have been imperative to the police. Whilst the facts may be clear to one
reading the reports now, it is perhaps useful to remind ourselves of how those
facts probably came to be known; most likely from the evidence provided by
Osborne-Brooks.
What cases have been prosecuted?
Prosecutions in householder cases
appear to be rare in any event. The BBC reports that in a period of 15 years,
between 1990-2005, only 11 prosecutions were made against those who attacked
their intruders, and of that figure, only 7 involved domestic burglaries. Of
those cases, many would agree that the force used clearly went beyond what
society could accept as reasonable. Lord MacDonald, former DPP, spoke of one such
case, which involved a defendant who set a trap for a burglar at his commercial
warehouse. Once captured, he bound the burglar, threw him in a pit and set him
on fire.[4]
For the public, not all cases might
be considered as straightforward. In R v
Martin (Anthony) [2002] 1 Cr.App.R 27, CA mentioned above, a man living in
an isolated farmhouse who had been persistently burgled waited for the a pair
of intruders with a shotgun. After shooting indiscriminately at them, the defendant
fatally shot one of the intruders in the back. Charged with murder, his defence
of self-defence was unsuccessful. Only later was his conviction substituted for
manslaughter after successfully arguing diminished responsibility. Media outlets largely condemned his
conviction.
Conclusion
It is important to be clear and
measured when discussing how self-defence operates in a householder case.
Burglaries occur frequently, and it would be a strong public disservice to disseminate
the falsehood that a person who defends themselves from a burglar is likely to
be prosecuted. Where reasonable force is used in defending oneself, a person acts within the law. Only where force used goes beyond that, such as
binding a person, throwing them in to a pit and setting fire to them, or
shooting someone in the back whilst they are running away, is a conviction
likely to be secured. The infinite combination of circumstances undoubtedly
produces uncertainty, and consequently concern that if someone was unfortunate enough
to have to defend themselves against a burglar, they would face prison. However, from
the very low number of prosecutions, s.76(5A)’s further protection, and the
relatively generous factors that can be considered in a determination of
reasonableness, there is little need for concern.
[1]
Archbold 2015, chapter 19, 19-47, page 2022
[2] Ibid
[3]
Ray [2017]
[4]
https://www.bbc.co.uk/news/uk-20398432