At a recent trial, the Crown Court had to consider whether the householder amendment to self-defence applied to all force used in a violent incident that began inside a home and spilt outside.
The law of self defence as it applies in “householder” cases is provided in section 76 of the Criminal Justice and Immigration Act 2008. Section 76(8A) defines the circumstances in which it applies as follows:
“(8A) For the purposes of this section “a householder case” is a case where—
(a) the defence concerned is the common law defence of self-defence,
(b) the force concerned is force used by C2 while in or partly in a building, or part of a building, that is a dwelling or is forces accommodation (or is both),
(c) C2 is not a trespasser at the time the force is used, and
(d) at that time C2 believed V to be in, or entering, the building or part as a trespasser.”
The wording of the section, and the Explanatory Notes that accompany it, require that the force used by the defendant (the householder) is used by him when he is in the home (“a building… that is a dwelling”), or partly in the home i.e. on or at the threshold of the home, whether it be at the door or at a window. In a recent trial at Chelmsford Crown Court (R v D1 and D2) the issue arose as to how the jury should be directed if they were to conclude that the violent incident that was the subject of the indictment (“the force used by C2”) may have begun inside the home, but then continued outside it.
The prosecution alleged that the complainant (‘C1’) had gone to the defendants’ home to talk to them to resolve the ill-feeling that had developed between them after a series of fights between their children. C1 was attacked by both defendants, D1 with a machete and D2 with a large knife. The attack started inside their home, and then continued outside it when, after C1 had stumbled out and fallen down the steps, D1 chopped her knee with a machete. C1 suffered serious injuries – several large cuts to her head, chest, hands and her left knee. C1’s brother who had been nearby, went to get help. He returned with C1’s husband (‘C2’). D1 had by then taken hold of a shotgun, and as they approached he shot C2’s in the chest. C2 died from his injuries.
The defence case was that C1 and C2 had both gone into their home, C1 armed with a machete. C1 attacked D2 with it. D2 and D1 together managed to take it from C1 and force her out of their home. All of C1’s injuries were caused when she was inside their home, in defence of themselves and their children. The shotgun was brought to the scene by C2, who picked it up after they had taken the machete from C1. D1 managed to take it from him, whereupon C2 went away and came back with C1’s husband. C2 was then armed with another large weapon (D1 couldn’t see whether it was a knife or another gun). C2 smashed the windows of his home and, fearing that C2 was going to go into his home and harm his children, D1 fired the gun.
On a simple reading of the wording of subsection (8A)(b), the “householder” defence could only apply to force used when the defendant concerned was inside the home or on the threshold so that he was partly inside it. This reading would appear to be consistent with the wording in subsection (8A)(d) which requires C2 to believe V “to be in, or entering, the building or part….”. Both subsections appear to be intended to apply only to force used when C2 is inside or at the threshold of the home.
However, such a reading could lead to an absurd result if force is used in a continuing violent incident that begins inside the home, but includes force used, outside it. It could require a different test to be applied to acts of force that are committed in self-defence moments and inches apart either side of the threshold in one continuous incident.
In this case it was argued on behalf of the defendants that this was one continuous incident, and even if the jury were to find that D1 had inflicted injury to C1 when they were both outside the home, and even though he was outside when he shot C2, the “householder” test should apply to all the force used.
The judge concluded that section 76(8A) provides a threshold that has to be met before the householder test can apply to any force used by C2; but once it does apply, it may continue to apply to any force used by C2 in self-defence in the course of that ongoing incident, whether C2 was inside or outside the home when he used it. On the facts of this case he concluded that it applied to all the force found by the jury to have been used in self-defence or defence of another against C1, whether inside or outside the home, as that was a single continuous incident. He found that the shooting of C2, which on the evidence must have been at least a minute and a half after C2 had gone away, was not part of that continuous incident, and therefore, if the jury found that it may have been done in self-defence, the “householder” test did not apply.
It was of course still for the jury to determine in relation to each application of force whether the force used was reasonable in the circumstances.
