Self Defence in 'Householder Cases'



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

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