R (on the application of Collins) v Secretary of State for Justice: Queen’s Bench Division, Divisional Court: 15 January 2016

Criminal law – Defence – Self-defence – Claimant issuing judicial review proceedings seeking declaration householder’s defence incompatible with right to life

The claimant entered the home of another, B, through an unlocked front door, and was subsequently found in possession of B’s wife’s car keys and mobile phone. B restrained him, at least in part, by means of a headlock. As a result of that restraint, the claimant suffered serious personal injury from which he was not expected to recover.

Following a police investigation, the Crown Prosecution Service (the CPS) decided not to prosecute B. That decision was upheld following a review by a specialist prosecutor on the basis that the ‘householder’ provisions within section 76 of the Criminal Justice and Immigration Act 2008 applied. He concluded that B would be acquitted of any offence of violence, unless the prosecution proved that the degree of force used had been grossly disproportionate and, in the circumstances, the method of restraint would be viewed as proportionate.

The claimant issued judicial review proceedings, seeking a declaration, addressed to the defendant Secretary of State, that the effect of section 76(5A) of the act (section 76(5A)) was incompatible with article 2 of the European Convention on Human Rights (ECHR).

The issues for determination were: (i) whether section 76(5A) altered the common law so that, in householder cases, the test of what was unreasonable in the circumstances as the defendant believed them to be was whether the degree of force used had been grossly disproportionate; and (ii) whether section 76(5A) was incompatible with article 2 of the Convention.

The application would be dismissed.

(1) The common law relating to self-defence required consideration of two elements. The first was a subjective element, namely, whether the defendant had genuinely believed that it was necessary to use force to defend himself. The second was an element which was partly objective (whether the nature and degree of force used was reasonable in the circumstances) and partly subjective (on the basis that what was reasonable had to be tested against the circumstances as the defendant genuinely, even if mistakenly, believed them to be).

The operation of section 76(5A) automatically excluded a degree of force which was grossly disproportionate from being reasonable in householder cases. If the degree of force was not grossly disproportionate, section 76(5A) did not prevent that degree of force from being considered reasonable, within the second self-defence limb. On the other hand, it did not direct that any degree of force less than grossly disproportionate was reasonable.

Whether it was or was not reasonable would depend on the particular facts and circumstances of the case. A degree of force that had gone completely over the top, prima facie, would be grossly disproportionate. Accordingly, section 76(5A), read together with section 76(3) of the act and the common law on self-defence, required that two separate questions be put to the jury in a householder case.

Presuming that the defendant genuinely believed that it was necessary to use force to defend himself they were, first, whether the degree of force the defendant used was grossly disproportionate in the circumstances as he believed them to be. If the answer was ‘yes’, he could not avail himself of self-defence.

Second, if the answer was ‘no’, whether the degree of force the defendant used was nevertheless reasonable in the circumstances as he believed them to be. If it was reasonable, he had a defence. If it was unreasonable, he did not. On the plain words of section 76 of the act, a jury should consider those two questions disjunctively. That represented no more than a refinement to the common law on self-defence (see [13], [19]-[22], [33], [34], [72] of the judgment).

The CPS lawyer reviewing whether to prosecute B had erred in having interpreted section 76 of the act as meaning that B would be acquitted of any offence of violence unless the prosecution proved that the degree of force used had been grossly disproportionate, the use of only disproportionate force being lawful.

That had not been an appropriate test against which to assess B’s restraint of the claimant for the purpose of considering whether the facts had justified the institution of proceedings in accordance with the test of whether there was sufficient evidence to provide a realistic prospect of conviction and whether a prosecution was required in the public interest. To that extent, the CPS reviewer had adopted the wrong test when having reconsidered the facts of the case (see [22], [70], [72] of the judgment).

R v Oye [2014] 1 All ER 902 applied; R v Keane; R v McGrath [2010] All ER (D) 185 (Oct) considered; Webster v Crown Prosecution Service [2014] All ER (D) 264 (Jul) considered.

(2) The test of reasonableness in the circumstances in private party householder cases, even after the minor qualification of section 76(5A), would not cause a breach of the positive obligation under article 2(1) of the Convention, which was shorn of strict proportionality. There were reasonable safeguards against the commission of offences against the person in householder cases. In the circumstances, the criminal law of England and Wales on self-defence in householder cases, taken as a whole, fulfilled the framework obligation under article 2(1) of the Convention (see [63], [64], [72] of the judgment).

Makaratiz v Greece (Application No 50385/99) [2004] ECHR 50385/99 considered; Angelova v Bulgaria (Application no 55523/00) (2007) 23 BHRC 61 considered; Giuliani v Italy (Application No 23458/02) [2011] ECHR 23458/02 considered; Smith v Ministry of Defence; Ellis v Ministry of Defence; Allbutt v Ministry of Defence [2013] 4 All ER 794 considered; R (on the application of FI) v Secretary of State for the Home Department [2014] All ER (D) 132 (Oct) considered; DSD v Metropolitan Police Commissioner; Koraou v Chief Constable of Greater Manchester Police [2015] All ER (D) 21 (Jul) considered.

Per curiam: ‘Looking to the view of parliamentarians on whether legislation is compatible with the ECHR will inevitably lead the court into assessing the validity (and accuracy) of these views which is clearly forbidden territory. Thus, notwithstanding the material which Mr Bowen sought to put before the court, I have not referred to the JCHR report or the speeches in the House of Lords in considering my conclusion that section 76(5A), as part of a broader framework of criminal law, is compatible with article 2(1)’ (per Sir Brian Leveson P, see [69] of the judgment).