Court of Appeal

Abstract

In the early hours of 15 November 2015, Rory Hemmings entered the property of his former partner, Kirsty Allen. Hearing a commotion from the door, Allen’s new partner, Ray, came downstairs to find Hemmings arguing with Allen. Ray attempted, unsuccessfully, to convince Hemmings to leave the property. As the situation became more heated, Ray and Hemmings became embroiled in a physical altercation, during which Ray fatally stabbed Hemmings.

According to Allen, the relationship with Hemmings had been a violent one. He would regularly threaten violence, especially after episodes of drinking. Hemmings had previously held a knife to Allen’s throat, and Allen had frequently contacted the police to intervene in disputes and arguments. On ending their relationship, Allen began a relationship with Ray. Allen’s evidence to court was that Hemmings was not happy about the new relationship and had threatened extreme violence to both Allen and Ray. Relations between the men deteriorated, with Allen and Hemmings’ children witnessing physical violence between the two men on one occasion. On the evening of 14 November, Hemmings sent a series of abusive text messages to the couple. Hemmings was at a party and heard that Allen had slept with a mutual friend before beginning her relationship with Ray. This appeared to be a catalyst for the events that followed.

During the early hours of the morning on Sunday, 15 November 2015, Allen was awoken by banging on her door. On opening the door, Hemmings burst into the property, shouting and swearing. Hemmings was described by Allen as being very angry, taking particular exception to Ray’s presence in the property. Ray attempted to calm Hemmings and persuade him to leave the house. Angered further by Ray’s involvement, a physical altercation ensued. Ray believed that Hemmings had a weapon as Hemmings kept reaching towards his pocket. By this point, Allen’s children had awoken and began screaming and crying. Allen submitted in evidence that she was very frightened. During the physical altercation, believing that Hemmings did in fact have a weapon and would use the weapon against him, Ray grabbed a knife from the drainer and stabbed Hemmings.

An ambulance was called immediately and when crews arrived they found Ray performing CPR upon Hemmings. Medical evidence submitted at trial concluded that the cause of death had been a single stab wound, 6 to 10 centimetres in length, administered with only mild force in the light of the absence of any resistance from bone or cartilage.

At trial, Ray attempted to rely on the so-called ‘householder’ defence (s. 76(5A) of the Criminal Justice and Immigration Act 2008, as amended by the Crime and Courts Act 2013), arguing he had stabbed Hemmings in self-defence, fearing Hemmings was carrying a weapon which he intended to use against Ray. The trial judge summed up the case in light of, and in accordance with the earlier decision in R (on the application of Denby Collins) v The Secretary of State for Justice [2016] 33 (Admin); [2016] QB 862 (DC) (Collins). For further discussion of the Collins case see; Jackson, A., The use of disproportionate force in ‘householder’ cases and article 2 of the European Convention on Human Rights (Case Comment), J Crim L 2016, 80(3), 166–169. It was noted that intent was also a live issue at trial.

At common law and as codified by s. 76 Criminal Justice and Immigration Act 2008, for self-defence to succeed, the force administered must be both reasonable and necessary; following established principles the use of force must be objectively reasonable in the circumstances as the defendant subjectively believes them to be (R v Owino (1996) 2 Cr App 128). Specifically enacted to offer greater protection to a householder within the confines of their own home, under s. 76(5A), the degree of force used by the defendant who is a ‘householder’ for the purposes of the 2008 Act is not to be regarded as reasonable in the circumstances as he believed them to be if the degree of force used is grossly disproportionate in the circumstances. In non-householder cases, there is no classification of differing ‘types’ of proportionality. Under s. 76(6) for non-householder cases, the force cannot be reasonable where it is disproportionate in the circumstances.

On 11 May 2016, Ray was found guilty of murder by a majority of 11-1 and sentenced to life imprisonment with a minimum term of 12 years, less time on remand. Ray appealed, arguing that the interpretation of the ‘householder’ provision in the seminal case of Collins effectively reduced the householder and the non-householder to the same position under the new law. The issue for appeal was whether s. 76(5A) of the 2008 Act was correctly interpreted by the divisional court in Collins and the effect this had to the present case. In particular, the Court of Appeal was asked to consider whether the test for proportionality established in Collins is the correct approach to be applied.

Held, dismissing the appeal , Sir Brian Leveson P correctly interpreted the provisions of s. 76(5A) in Collins (at [23]). The test for self-defence requires the jury to first determine the circumstances as the defendant believed them to be (s. 76(1)(b)). It then requires the jury to assess whether, under those circumstances, the degree of force was reasonable (s. 76(3)). 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 the defendant believed them to be if it was grossly disproportionate in those circumstances. If the jury were satisfied that the force used was grossly disproportionate, then such force could never be reasonable, and the defence would not be made out. Crucially, in a householder self-defence case, the ‘focus of the jury’ should be on whether or not the amount of force used was reasonable or unreasonable, even where the force might be regarded disproportionate (at [34]). Ray’s argument rested solely upon the contention that if the force used was not ‘grossly disproportionate’ then it must automatically be deemed as reasonable, an argument that the Court of Appeal dismissed in line with the decision in Collins.

Commentary

Ray is the first Court of Appeal ruling to apply Leveson P’s interpretation of the householder defence in Collins. Any comparison between the case facts is difficult to reconcile on the basis that Collins involved an application for judicial review by Collins’ family on the operation and interpretation of the householder defence by the CPS in determining the defendant [B’s] culpability for Collins’ injury. On reaching the Queen’s Bench Division, the application against the decisions of the CPS and DPP not to prosecute were dropped, leaving only the question of the compatibility of the householder defence with article 2 ECHR. While Leveson P offered full interpretation of the requirements of self-defence, the case facts, unlike in the present case, were not put to a jury due the CPS decision not to prosecute B. The lawyer for the CPS decided that a jury would believe that use of force, the nature of use and the circumstances would be accepted without question and that

It is difficult for a person in circumstances such as these to measure precisely what level of force is required, and to reiterate, if that person does no more than seems wholly necessary that is itself potent evidence that the force used was proportionate. In my view a jury, looking at the facts as [B] perceived them to be, are unlikely to conclude that the continuation of this method of restraint was grossly disproportionate. (Collins at [11])

Interestingly, Leveson P alluded to the mistake by the CPS not to prosecute B, reaffirming the test and offered that ‘the CPS reviewer adopted the wrong test when reconsidering the facts of this case’. Leveson P also submitted in judgment that

…in my view, the CPS lawyer in reviewing whether to prosecute B erred in interpreting s. 76 as meaning B would be acquitted of any offence of violence unless the prosecution proved that the degree of force used was grossly disproportionate, the use of only disproportionate force being lawful. (Collins at [22])

In Collins, B was not charged with any offence, despite holding an unarmed intruder in a headlock for over 6 minutes, causing life-altering injuries. B, who was assisted by various members of his household and friend group, was heard shouting that he was going to kill Collins if the police did not hurry on the recorded emergency call.

If a jury had been instructed in Collins, the two-part test would have been invoked. The jury would have had to decide, first, if B (subjectively) believed that the use of force was necessary. If the belief was mistaken due to voluntary intoxication, B would not have been able to rely upon self-defence under s. 76(5) (see also R v O’Grady [1987] QB 995). If the jury had found B believed his conduct necessary in the circumstances and that voluntary intoxication played no part in B’s mistaken belief, the next question is to whether the amount of force used was reasonable and therefore raising the question of proportionality. Was the act of restraining Collins as per the facts as B believed them to be proportionate in those circumstances? Should the jury have decided that B’s actions were ‘grossly disproportionate’, then the amount of force used would not be reasonable, and self-defence would fail by virtue of s. 76(5A) of the Criminal Justice and Immigration Act 2008, as amended by s. 43(2) Crime and Courts Act 2013. If, however, the amount of force used was merely disproportionate, it would still be open to the jury, in the context of a ‘householder case’, to find that it was reasonable in the circumstances. Anything less than grossly disproportionate force is not axiomatically reasonable, and reasonableness is ultimately a determination to be made by the jury.

When applying these findings to the present case, it becomes clearer that the tests and rules which should apply to householder self-defence do not appear to have altered the scope of the new law to the extent at which on first blush it might appear. In Collins, Leveson P held that the prosecution had applied the wrong test, intimating that the case may have been decided differently if brought before a jury. Appellate counsel in Ray submitted that Leveson P had in effect reduced the householder to the same position as the non-householder, adding that Parliament’s intention with the new law was to allow the jury to find that degree of force was reasonable if it fell anything short of ‘grossly disproportionate’ in the circumstances as the defendant believed them to be. This contention was rejected by the Court of Appeal in the present case.

Affirming the principles set out by Leveson P in Collins, Lord Thomas CJ giving judgment in the present case suggests that the first question a jury must ask is whether the force was ‘grossly disproportionate’. This appears to, at least initially, bypass the question of reasonableness, instead discussing the differing ‘levels’ of proportionality to ascertain culpability. This decision will undoubtedly cause difficulties for juries when assessing householder cases in the future. Self-defence, as a common law principle, is not complicated, requires no legal commentary (Palmer v R [1971] AC 814), and is adduced based upon the two-part test of whether the use of force was (subjectively) necessary and, if so, whether the amount of force used was reasonable. The decision of the Court of Appeal in Ray effectively asks juries to dismiss the second question in householder cases, skipping to a decision regarding the level of proportionality. This differs from Leveson P in Collins, who consistently brought the question of culpability back to the question of reasonableness.

Following Ray, juries must now determine self-defence based upon an addition to the fundamental principles, complicating the defence and forcing juries ask questions that may not be applicable to any given case.

In Collins, Leveson P applied a rather liberal approach to proportionality, particularly with reference to an intoxicated mistaken belief. Stating that the common law, as preserved by s. 76 of the 2008, requires an approach which ‘is at least arguable, is unduly restrictive for householders’, Leveson P then definitively separates the householder and the non-householder. Further emphasising his point that a person who consumes alcohol to excess in their own home ‘was entitled to do so’ (Collins at [4]), Leveson P then expounds his point. Giving judgment in Collins, Leveson P suggested that the behaviour of a person in the public sphere must include a responsibility for their alcohol consumption and subsequent actions. He questioned ‘why that should be so in the defendant’s own home in circumstances where he is not anticipating any interaction with a trespasser is, perhaps, a more open question’ (Collins at [30]).

The justification for the current position in respect of voluntary intoxication and self-defence is that to allow a drunken mistake to form the basis of self-defence, ‘would leave the citizen legally unprotected from unprovoked violence where such violence was the consequence of drink or drugs, having obliterated the capacity of the perpetrator to know what he was doing or what were its consequences’ (DPP v Majewski [1977] AC 443). The position in relation to mistaken belief is that a

sober man who mistakenly believes he is in danger of immediate death at the hands of an attacker is entitled to be acquitted of both murder and manslaughter if his reaction in killing his supposed assailant was a reasonable one. (R v O’Grady)

Leveson P is correct, based upon O’Grady and Majewski, to elevate the position of the householder and offer a differing standard of behaviour when considering householder self-defence case, applying issues of proportionality liberally when faced with the protection of a man in his own home.

This is especially relevant when considering voluntary intoxication as an arising issue in the two cases, albeit in very different ways. Each case highlights interesting paradoxes within the realm of intoxication and householder self-defence. Following accepted law, the issue of intoxication within self-defence looks to both public order and mistake of fact induced or furthered by voluntary intoxication. The paradox is highlighted in Ray, whereby the ‘sober man’ and ‘householder’ was offered no protection from the intoxicated attacker, despite apparently holding a genuine belief that he was in danger of an imminent attack from an assailant who had a history of both knife crime and violence.

The principles in O’Grady and Majewski, coupled with the added latitude of the householder defence, should have had the effect of elevating and sustaining Ray’s protection from prosecution. As Collins was not brought before jury, Ray is the first jury trial to consider all constituent elements of s. 76(5A).

The decisions in both Collins and Ray highlight the problematic nature of the current law, a position the government attempted to move away from with the amendments and additions to the Criminal Justice and Immigration Act, in relation to householder self-defence. By triggering public interest and altering public perception with an erroneous belief that a householder was not adequately protected under existing law, Parliament enacted a muddled piece of legislation, which will almost certainly see more appeals against conviction as practitioners struggle to apply the current position.

Siân Dickson