Opening the Door to Vindication: Reviewing the Evidential Bases for the ‘Householder Defence’

Section 76 Criminal Justice and Immigration Act (CJIA) 2008, as amended by s 43 Crime and Courts Act 2013, introduced the so-called ‘householder case’ into our domestic law. This householder provision amended the common law of self-defence to refine the degree of force a householder might legitimately use in defence of themselves or another. By s 76(5A), the force used by a householder will not be considered reasonable if it is grossly disproportionate in the circumstances. Force may still be reasonable, however, even if the force used is disproportionate; the statute provides some additional protection for the householder in this case compared to their non-householder counterpart in s 76(5) (R v Ray [2017] EWCA Crim 1391, [2018] QB 948). However, in order to rely on the householder defence, evidence must exist which shows that, amongst other things, the defendant was not a trespasser at the time of using force within a dwelling, and that the defendant believed the victim to be in, or entering, the building, or part of it, as a trespasser. Magson concerned a set of facts where no evidential basis existed (either expressly or by implication) to show that the defendant believed the victim to be a trespasser.

In 2016, the appellant, Emma-Jayne Magson (M), was convicted of the murder of James Knight (K). M’s conviction was overturned on appeal, however, in 2020, and a retrial was ordered. In March 2022, following her retrial, M was convicted of murder on the same indictment.

M and K were in a relationship, living together at M’s house. The relationship was, however, volatile with K leaving the house for short periods following arguments between the pair. In March 2016, M and K returned to M’s residence following a night out, having engaged in a violent argument at a bar and during a taxi ride home, which resulted in K pushing M to the ground. At this point, the version of events differs between the prosecution and the defence.

The prosecution case was that when M and K reached the house, M entered alone, and K banged on the door for ten minutes asking to be allowed in. M armed herself with a knife and stabbed him in the chest after opening the front door. The defence case, on the other hand, was that M and K entered the house together, where K accused M of having an affair. K left the house by the front door and M went to shut it after him. However, before the door could be closed, K kicked it open, re-entered the house, and kicked M in a way which made her fall to the ground. M claimed to then walk into the kitchen, where K put his hand around M’s neck and pushed her against the sink. M’s defence statement was similar to the prepared statement that she made after the charge, namely that K tried to ‘throttle’ her over the sink and that she acted in fear when stabbing him. For reasons which will be discussed later in this case note, it is important to note that M did not assert that K was a trespasser either before or at trial, nor did she demonstrate in evidence that she believed K was a trespasser.

The learned trial judge, Jeremy Baker J, provided the jury with written directions on the law relating to self-defence, which included (at [15]):

an individual who is or who obviously believes that she is about to be assaulted is not expected to weigh to a nicety the exact measure of necessary action, and if you consider that what the accused did was only what she honestly and instinctively thought was necessary in order to defend herself, then that would be strong evidence that her use of force was reasonable in the circumstances.

M was subsequently convicted of murder.

On appeal following the retrial, M argued the sole ground that the learned trial judge erred in law by failing to sum up the householder defence to the jury, in addition to the common law defence of self-defence. According to the transcript available, counsel for M submitted that M was a householder within the meaning of the CJIA 2008, and that if the jury concluded that K was a trespasser, the householder defence could be relied on. M also applied for leave to appeal against her sentence, however, this case note will only consider the appeal against conviction on the sole ground.

Held, dismissing the appeal, the summing up given at trial by the learned judge was accurate; Jeremy Baker J was correct in not including the householder defence in his summing up. The Lord Chief Justice, Lord Burnett, giving the sole judgment of the Court of Appeal identified (at [23] and [24]) three key reasons for this. Firstly, there was no evidential basis to raise the defence; this is deemed a necessity. Secondly, there was no evidence that M thought K was a trespasser at the time of the stabbing. In particular, his Lordship explained the first and second as such (at [23]):

In the present case… it was not part of the appellant's case that she believed the deceased to be a trespasser. She was not asked about that in either trial. That is perhaps unsurprising in circumstances where Mr Knight had lived with her for months and, as she said in evidence, had a key to the house. It was his home. There will be cases where the circumstances of events give rise to an inference that a householder believed an intruder to be a trespasser when using force in self-defence. There would be no need or purpose in solemnly asking the defendant householder a question to confirm it. Yet there does need to be an evidential basis for the defence to arise. Here, in our view, it was absent. … Critically, there was no evidence or suggestion that it was any part of the appellant's thinking that the deceased was a trespasser at the time of the stabbing. Absent that, there was no evidential basis on which the householder defence could arise.

Finally, the Court took the view that a refined direction which reflected the householder defence, had the learned trial judge given one, would have made no difference to the outcome of M’s trial. In concluding on this point, Lord Burnett CJ would explain (at [24]):

If the jury had believed that the appellant's account was or may have been true then, realistically, they would have been bound to acquit her. The jury's verdict indicates that the Crown satisfied them that there was no truth in that account.

The conviction was thus safe, and the appeal dismissed.

Commentary

The judgment of the Court of Appeal in Magson is far from a revelation, but it does add some clarity as to when, and by what means, the householder defence may arise. Of particular note is the lack of evidential basis that M believed K to be a trespasser, and what would appear to be a misunderstanding as to what the proper test to be applied is.

Proper Evidential Basis, or Lack Thereof

For all defences, there must be an evidential basis to render the defence a matter (or fact) in issue between the parties (i.e. admissible and disclosed evidence must exist to demonstrate that a particular defence could be considered). In the context of self-defence, such a basis can come from either the prosecution or defence evidence (DPP (Jamaica) v Bailey [1995] 1 Cr App R 257; R (Skelton) v Winchester Crown Court [2017] EWHC 3118 (Admin), [2018] Crim LR 330). Logically, this must therefore also apply to the householder defence. In Magson, Lord Burnett CJ noted (at [23]) that the householder defence was not argued at trial, nor was any question asked of M, nor did M’s legal team, the Crown, or the trial judges (in both the first and second trials) raise the matter. On appeal, M essentially argued that, with the benefit of hindsight, the householder defence was applicable regardless, relying, in particular, on the trial judge’s sentencing remarks. At [17] of the judgment, counsel for M pointed to the learned judge’s sentencing remarks, where his Lordship said:

Once back at 25 Sylvan Street I am sure that you decided not to let James Knight enter your home, as a result of which he started to kick the front door, whilst you were heard shouting by one of the neighbours that you were not going to let him inside.

It is likely that M was relying on the remarks referring to ‘not going to let him inside’ to form the basis for K being a trespasser. This is not the same, however, as demonstrating that M believed K to be a trespasser.

The question which arises, therefore, is understanding where the correct evidential basis for the householder defence is to be found. The obvious answer, of course, stems from direct or express evidence which is before the court and is raised by either party to the proceedings. However, in the absence of the defence being expressly argued, it appears that an evidential basis can be inferred by examining a defendant’s thinking at the time the offence was committed. Lord Burnett CJ explains that (at [23]):

Critically, there was no evidence or suggestion that it was any part of the appellant’s thinking that the deceased was a trespasser at the time of the stabbing. Absent that, there was no evidential basis on which the householder defence could arise.

The Lord Chief Justice suggests that an evidential basis could be inferred by looking more closely at the evidence which demonstrates a defendant’s way of thinking at the time when the force was applied, including whether they demonstrated a belief that the victim was a trespasser. Such evidence may appear in a defence statement or police interviews, but would most likely come from an analysis of the defendant’s oral evidence at trial. Accordingly, if there are clues in said evidence which indicates that the defendant believed the victim to be a trespasser, without expressly using the word ‘trespasser’, an evidential basis may be inferred. In the instant case, however, no such basis existed in fact or in law, and the jury was properly directed to consider the non-householder version of the defence. On a final note, it can be inferred that a rather forensic analysis of the sentencing remarks of the trial judge are not, per se, capable of forming an evidential basis, particularly when tenuous.

Belief and not Fact

Section 76(8A)(d) is clear: the final limb of the householder defence is that the defendant must believe, at the time of using force within a dwelling, that the victim was a trespasser. In R v Cheeseman [2019] EWCA Crim 149 [2019] 1 WLR 3621, the Court Martial Appeal Court reaffirmed the statutory wording in s 76(8A)(d). In particular, Lord Burnett CJ would explain (at [21] of Cheeseman):

The defence is not directly concerned with the question whether someone was or was not a trespasser but rather the defendant's belief.

In light of this clear statutory statement, it is somewhat odd that counsel for M was cited by his Lordship as having argued that if the jury concluded that K had entered as a trespasser or had become a trespasser after M had refused to let him into the property, ‘then she was entitled to rely on the householder defence.’ (at [16] of Magson). Indeed, there are other references within the judgment which indicate that M contended that so long as K was in fact a trespasser, then the householder defence is available. This is an unfortunate misreading of the statute. As was explained in a previous case note following the judgment in Cheeseman (‘Householders and Self-defence: Understanding a Defendant’s Belief that the Victim is a Trespasser’ (2019) 83(2) J Crim L 116 at 118):

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. (original emphasis)

Admittedly, the fact that an individual is a trespasser will often be determinative as to whether the defendant believed them to be a trespasser. Indeed, this was made clear by Lord Burnett CJ in Cheeseman, where his Lordship reasoned that (at [21] of Cheeseman):

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.

However, that does not detract from the fact that the requirement in law is whether the defendant believed the victim to be a trespasser. Without evidence of this, the defence cannot stand and Magson confirms that evidence that the victim was a trespasser, without any evidence to show an accompanying belief of that fact, is simply not enough.

An Ethical Issue, Perhaps?

On a final note, an observation could be made from the Court’s judgment in Magson between the relationship of professional ethics and the raising of an evidential basis. A defence team must advise a lay client on any defences available to them in law, based on the facts and evidence before them. Legal representatives must not, however, manipulate the facts to create a defence. It is unknown as to whether the two defence teams representing M had considered the possibility of the householder defence applying. It would be reasonable, however, to assume that the householder defence was considered early on in proceedings, but, as there was no apparent evidential basis for raising it, the matter was not taken further. Had the basis existed but was not brought to the attention of M, professional conduct issues would have arisen. The same can be said if a defence was pursued where there was no basis for it.

Indeed, this matter was considered by the Court of Appeal in Magson. Lord Burnett CJ at [23] does make reference to the fact that the householder defence was not raised by the defence or trial judges:

That, no doubt, explains why the point did not occur to two separate experienced and skilled criminal defence teams nor to two experienced trial judges.

This, it seems, resulted in the Court doubting the applicability of the householder defence to M at trial. Of course, it does not appear to be a decisive factor which led to the dismissal of M’s appeal, but it was relevant in determining whether the critical evidential basis existed and illustrates factors which the appellate courts consider when looking for such a basis.

Conclusion

Magson reaffirms to practitioners the need to ensure that a proper evidential basis exists for each element of a defence, and the householder defence in particular. The lack of evidential basis (expressly or implicitly) that M believed K to be a trespasser was fatal to M’s case. Indeed, there was no evidence from the judgment of the Court of Appeal which would support the contention that M believed K to be a trespasser. Furthermore, Magson repeats the principle from Cheeseman, and the clear statutory statement in s 76(8A), that the defence is only available where the defendant believes the victim to be a trespasser; it is not dependent on the victim being, in fact or law, a trespasser. Magson is the most recent appeal on the interpretation of the householder defence and shall not be the last; what will come before the courts next remains to be seen.