Abstract
Section 76 of the Criminal Justice and Immigration Act (CJIA) 2008 restates the common law defence of self-defence. By s 76(9) of the 2008 Act, its introduction was designed to ‘clarify the operation of the existing defences’ in the common law. Following the amendments in s 43 of the Crime and Courts Act 2013, a new category of self-defence was inserted into the legislation, namely ‘householder’ cases. A householder case is explained in s 76(8A) as follows:
For the purposes of this section ‘a householder case’ is a case where—
the defence concerned is the common law defence of self-defence
the force concerned is force used by D while in or partly in a building, or part of a building, that is a dwelling or is forces accommodation (or is both),
D is not a trespasser at the time the force is used and
at that time D believed V to be in, or entering, the building or part as a trespasser.
Cheeseman was an appeal largely concerned with the correct interpretation of the defendant’s belief that the victim was a trespasser in s 76(8A)(d).
Corporal Steven Cheeseman (C) and the victim, Lance Corporal Lindley, had been stationed at a barracks in Cyprus. On the morning of 25 March 2017, the pair had been drinking alcohol and chatting in C’s room. It was accepted that the victim first entered the room with the consent of C and both men were intoxicated. At around 12.20, C left the room to eat lunch, leaving the victim alone in the room. Upon his return, C discovered the door to be locked and the victim was heard, from the outside, to be trashing C’s room. The reasons for such were ‘not material’ to the Board, though it was noted that the victim was ‘not only drunk but agitated and disturbed’. Having shouted to the victim and knocked on the door, the victim eventually opened the door. C discovered his room had indeed been ‘trashed’ and a number of his personal belonging had been destroyed; this subsequently led to a confrontation between the pair. In the midst of the confrontation, C stabbed the victim repeatedly. It was noted by the Board that C picked up the knife once he was in the room; he had not armed himself prior to re-entering his room.
C was charged with the attempted murder of the victim. At trial, C contended that he lacked the necessary mens rea for attempted murder (intention to kill) but, in any event, should not be liable for the offence, given that he was acting in self-defence. C claimed to have been acting in self-defence on account that the victim had attacked him first, and force was necessary to prevent C from losing his own life. C relied on the ‘householder’ provision in s 76 of the CJIA 2008, claiming that the force was used inside a dwelling (i.e. C’s private accommodation) and that the victim was a trespasser at the time force was used. The trial judge concluded that the householder defence was of no application to the instant case for two reasons: the defence applied only to cases where the victim had entered the building as a trespasser; it did not apply where the victim entered the building lawfully but had then thereafter become a trespasser; and in any event, there was no evidence that C believed the victim to be a trespasser, in accordance with s 76(8A)(d) of the 2008 Act.
Acquitting C of attempted murder, the Court Martial nonetheless found him guilty of wounding with the intent to cause grievous bodily harm contrary to s 18 of the Offences against the Person Act 1861. C appealed against this decision on the basis that the learned judge was incorrect in his above rulings, resulting in the conviction being unsafe.
The Lord Chief Justice, Lord Burnett, in giving the unanimous judgment of the Court, identified three issues of concern in this appeal (at [9]): Was the judge correct to rule that the householder defence is not available in cases where the injured person entered a building lawfully but thereafter became a trespasser? Was there evidence upon which the Board could conclude that the appellant believed Lance Corporal Lindley to be a trespasser? In any event, is the conviction safe?
On the first point, his Lordship found that the trial judge had erred in law in his interpretation of s 76(8A)(d). Section 76(8A)(d) provides that a defence if available if (inter alia) ‘at that time D believed V to be in, or entering, the building or part as a trespasser’. In an early part of the judgment (at [12]), Lord Burnett CJ accepted that the defence is not restricted solely to cases where the defendant believes the victim to have entered a building as a trespasser; it applies also in cases where the defendant believes that the victim is in the building as a trespasser, whether or not he originally entered as such. This, as was submitted by Mr Glenser, counsel for C, is a simple reading of the statutory materials which he submitted to be ‘absolutely clear’ (at [11]).
The Court Martial Appeal Court then had to concern itself with the second issue, namely whether there was any evidence upon which the Board could have concluded that C believed the victim was a trespasser at the time force was used. As noted above, Lord Burnett CJ was of the view that the victim became a trespasser, at the very least, when he began to damage C’s property. At trial, however, C’s evidence suggested that he believed the victim to be a trespasser at the point at which he demanded the victim to leave his room and the victim refused (at [24]). Given that the trial judge did not consider the defence to be capable of applying (for the misunderstood reasons noted above), the defence was not left to the Board as a matter of fact. Lord Burnett CJ concluded that whilst C’s belief that the victim was a trespasser was ‘relatively thin’ (at [25]), this should have been a matter left to the Board to decide. On that basis, the judge erred on the second point.
His Lordship then finally turned to the third point: despite the errors in law, was the conviction nonetheless safe? At [26], Lord Burnett CJ states with firmness: ‘We conclude that it is’. His Lordship focused on the sentencing remarks of the Judge Advocate General which, according to his Lordship, made it ‘abundantly clear…that the Board was satisfied that the appellant did not genuinely believe that it was necessary to use force to defend himself’ (at [28]). C contended that such a reading could not be exclusively made from the sentencing remarks identifying that the Board might well have concluded that C genuinely believed force was necessary in the circumstances (because he believed the victim to be a trespasser) but ‘went over the top’ and used unreasonable force. Lord Burnett CJ rejected this argument concluding that (at [30]): The Board clearly considered that the appellant had been significantly provoked, a proposition with which we entirely agree, but it rejected self-defence completely. We are fortified in that conclusion by the extensive discussion in the sentencing remarks which follow of the aggravating and mitigating factors. It would have been a powerful mitigating factor had this been one of those cases of a genuine belief in the need to defend oneself accompanied by force which was unreasonable. But there is no sign of that in the sentencing remarks as clearly there would have been if that was the approach of the Board.
Commentary
Since its inception in 2013, householder self-defence has been subject to little judicial interpretation. Its first challenge arose in the case of R (Collins) v Secretary of State for Justice [2016] EWHC 33 (Admin) which concerned the interpretation of the phrase ‘grossly disproportionate’ force in s 76(5A) of the CJIA 2008. That decision itself was subject to challenge in the more recent case of R v Ray [2017] EWCA Crim 1391, [2018] QB 948 which approved the decision in Collins. Cheeseman is the latest addition to the growing list of cases dealing with the interpretation of the householder defence.
Belief That V Was a Trespasser
One of the prominent features of the appeal concerned the question whether the victim had to be a trespasser upon entry or whether they could become a trespasser following lawful entry. In fact, the answer was neither! All that was relevant, according to the Court, was whether the defendant believed the victim to be a trespasser.
The alternative expressions are closely aligned to that of the Theft Act 1968, which provides that an individual may be liable for burglary if they enter as a trespasser and intend to commit a number of named offences (TA 1968, s 9(1)(a)) or where they have entered a building as a trespasser and proceed to commit a number of named offences (TA 1968, s 9(1)(b)). Indeed, it has long been the case that an individual may enter a building, or part of a building, lawfully but nevertheless will become a trespasser at some point in that stream of events. Recalling R v Smith & Jones [1976] 1 WLR 672, the defendants in that case entered the house of Smith’s father lawfully, however, subsequently became trespassers upon stealing several television sets. One could even refer to the oft-cited quote from Scrutton LJ in The Calgrath [1927] P 93, namely ‘When you invite a person into your own to use the staircase you do not invite him to slide down the bannisters’. In this sense, it is not unknown for the courts to deal with a situation in which an individual subsequently becomes a trespasser, having first entered with permission. Importantly, however, neither of these authorities (or arguments for that matter) were referred to in Cheeseman, given that the question focused around the defendant’s belief as to whether the victim was a trespasser—not around whether the victim was in fact a trespasser. In terms of temporal periods, the statutory provision is rather clear on this, namely that D must believe the victim to be ‘in, or entering, the building’ as a trespasser. Much like Smith & Jones in which defendants may be trespasser in fact despite that they first entered lawfully, the statute offers two clear alternatives regarding the defendant’s believes. It is worth questioning in this respect then, how the learned judge made such a mistake.
According to Lord Burnett CJ, the mistake was predicated on the wording of Lord Thomas CJ, as he then was, in the earlier case of R v Ray. In the course of his judgment, Lord Thomas CJ made reference to force being used against ‘intruders’, which was consistent with the language used by ministers during Parliamentary debates. This narrow reading of the law was explained by Lord Burnett CJ as being incorrect. His Lordship explained (at [19]): With respect, that [reading] was to take the paradigm example of the circumstances covered by the householder defence as defining its limits in a way which cannot be accommodated within the statutory language. In most cases where the householder defence is engaged the question whether the defendant believed the person concerned to be in the building as a trespasser will cause no difficulty. That is simply because the defence will most frequently arise in the context of an intruder. In other cases, of which this is an example, it would be unnecessary for a jury (or Board in a Court Martial) to wrestle with questions of property law and the niceties of whether someone who started as an invitee became a trespasser. The defence is not directly concerned with the question whether someone was or was not a trespasser but rather the defendant’s belief. No doubt, the clearer it is that someone was a trespasser the more readily a jury will not be troubled by the issue whether the defendant did or did not hold the belief.
C’s Belief in the Need to Use Force
Despite the Court Martial Appeal Court confirming that the learned judge was wrong in their interpretation of the statutory provisions, and were thus wrong in not considering the defence at all, C’s conviction remained nevertheless safe given that it was ‘abundantly clear’ that C did not genuinely believe that it was necessary to use force to defend himself. It was for these reasons that Lord Burnett CJ explained (at [31]) that ‘the conviction is safe despite the error of law and consequent misdirection which we have identified’.
What is particularly interesting about this decision is that reasons are provided for the decision of the Board; something that would not happen in ordinary jury trials. During his sentencing remarks, the Judge Advocate General stated that in the instant case, the Board: …rejected [C’s] reassertion that [he] acted in self-defence. Their conclusion is that you completely lost control of yourself in your drunken state because of what Lindley had done to your room. Indeed, you were heard to shout through the door before it was open that if Lindley was smashing your room, you would kill him. That demonstrated a state of mind. The Board did not believe that you meant that literally and they concluded that you did not intend to kill him.
In summary, whilst there was a misdirection in this case as to the availability of the defence, such misdirection did not affect the Board’s conclusion on the facts before them—they concluded that C did not genuinely believe in the need to use force. That decision was a legitimate once that could not be interfered with; the conviction is duly safe.
Concluding Thoughts
Cheeseman is the most recent authority in what will no doubt be a long list of cases dealing with the correct interpretation of the householder defence. Whilst Collins and R v Ray has, albeit controversially, dealt with the meaning of ‘grossly disproportionate’ force; Cheeseman has confirmed, in a rather uncontroversial ruling, that the householder defence is not restricted to a defendant’s belief that the victim entered as a trespasser but also to cases where the defendant believes the victim to subsequently become a trespasser, following their initial lawful entry.
Whilst uncontroversial, Cheeseman is a helpful decision in the quest to clarify the existing householder provisions. It cannot be denied, however, that some questions still remain: Who is considered to be a ‘householder’ and how far does that extend? Section 76(8A)(c) simply provides that the defendant must not himself be a trespasser—Does this therefore mean that a ‘householder’ is essentially any person lawfully occupying space in that dwelling? How far does the expression ‘dwelling’ extend? Does the provision cease to take effect at the front door; on the patio; in the garden; at the garden fence? Does the force extend in the circumstances where the defendant is in the building or part of a building and the victim is outside the building? That would seem to be the case given the use of the phrase ‘partly in a building’ in s 76(8A)(b) but remains to be seen.
The author eagerly awaits the next case which may deal with any of these unanswered questions.