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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Cheeseman v R [2019] EWCA Crim 149 (13 February 2019) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2019/149.html Cite as: [2019] WLR(D) 90, [2019] 1 Cr App R 34, [2019] EWCA Crim 149, [2019] WLR 3621, [2019] 1 WLR 3621 |
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ON APPEAL FROM MILITARY COURT CENTRE COLCHESTER
Judge Advocate General HHJ Blackett
2017CM03730
Strand, London, WC2A 2LL |
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B e f o r
e :
RIGHT
HONOURABLE THE LORD BURNETT OF MALDON
LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE HONOURABLE MRS JUSTICE CHEEMA-GRUBB
and
THE HONOURABLE MR JUSTICE MARTIN SPENCER
____________________
STEVEN ![]() | Appellant |
|
- and - |
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____________________
Rai
(instructed by Lewis Cherry Limited) for the Appellant
Mr David Edwards and Colonel R
Allen
(of the Service Prosecution Authority) for the Respondent
Hearing dates: 7 February 2019
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
The Lord Burnett of Maldon CJ:
The Statutory Provision
"(1) This section applies where in proceedings for an offence—
(a) an issue arises as to whether a person charged with the offence ("D") is entitled torely
on a defence within subsection (2), and
(b) the question arises whether the degree of force used by D against a person ("V")
was
reasonable
in the circumstances.
(2) The defences are—
(a) the common law defence of self-defence;
(aa) the common law defence of defence of property; and
(b) the defences provided by section 3(1) of the Criminal Law Act 1967 or section 3(1) of the Criminal Law Act (Northern Ireland) 1967 (use of force in prevention of crime or making arrest).
(3) The question whether the degree of force used by D wasreasonable
in the circumstances is to be decided by
reference
to the circumstances as D believed them to be, and subsections (4) to (8) also apply in connection with deciding that question.
(4) If D claims to have held a particular belief asregards
the existence of any circumstances—
(a) thereasonableness
or otherwise of that belief is
relevant
to the question whether D genuinely held it; but
(b) if it is determined that D did genuinely hold it, D is entitled torely
on it for the purposes of subsection (3), whether or not—
(i) it was mistaken, or
(ii) (if it was mistaken) the mistake was areasonable
one to have made.
(5) But subsection (4)(b) does not enable D torely
on any mistaken belief attributable to intoxication that was
voluntarily
induced.
(5A) In a householder case, the degree of force used by D is not to beregarded
as having been
reasonable
in the circumstances as D believed them to be if it was grossly disproportionate in those circumstances.
(6) In a case other than a householder case, the degree of force used by D is not to beregarded
as having been
reasonable
in the circumstances as D believed them to be if it was disproportionate in those circumstances.
(6A) In deciding the question mentioned in subsection (3), a possibility that D could haveretreated
is to be considered (so far as
relevant)
as a factor to be taken into account,
rather
than as giving
rise
to a duty to
retreat.
(7) In deciding the question mentioned in subsection (3) the following considerations are to be taken into account (so far asrelevant
in the circumstances of the case)—
(a) that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and
(b) that evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that onlyreasonable
action was taken by that person for that purpose.
(8) [Subsections (6A) and (7) are not to beread
as preventing other matters from being taken into account where they are
relevant
to deciding the question mentioned in subsection (3).
(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 D while in or partly in a building, or part of a building, that is a dwelling or is forces accommodation (or is both),
(c) D is not a trespasser at the time the force is used, and
(d) at that time D believedV
to be in, or entering, the building or part as a trespasser.
(8B) Where—
(a) a part of a building is a dwelling where D dwells,
(b) another part of the building is a place of work for D or another person who dwells in the first part, and
(c) that other part is internally accessible from the first part, that other part, and any internal means of access between the two parts, are each treated for the purposes of subsection (8A) as a part of a building that is a dwelling.
(8C) Where—
(a) a part of a building is forces accommodation that is living or sleeping accommodation for D,
(b) another part of the building is a place of work for D or another person for whom the first part is living or sleeping accommodation, and
(c) that other part is internally accessible from the first part, that other part, and any internal means of access between the two parts, are each treated for the purposes of subsection (8A) as a part of a building that is forces accommodation.
(8D) Subsections (4) and (5) apply for the purposes of subsection (8A)(d) as they apply for the purposes of subsection (3).
(8E) The fact that a person derivestitle
from a trespasser, or has the permission of a trespasser, does not prevent the person from being a trespasser for the purposes of subsection (8A).
(8F) In subsections (8A) to (8C)—
"building" includes avehicle
or
vessel,
and
"forces accommodation" means service living accommodation for the purposes of Part 3 of the Armed Forces Act 2006 byvirtue
of section 96(1)(a) or (b) of that Act.
(9) This section, except so far as making different provision for householder cases, is intended to clarify the operation of the existing defences mentioned in subsection (2).
(10) In this section—
(a) "legitimate purpose" means—
(i) the purpose of self-defence under the common law,
[(ia) the purpose of defence of property under the common law, or]
(ii) the prevention of crime or effecting or assisting in the lawful arrest of persons mentioned in the provisionsreferred
to in subsection (2)(b);
(b)references
to self-defence include acting in defence of another person; and
(c)references
to the degree of force used are to the type and amount of force used." (emphasis added)
The Facts
i) Was the judge correct torule
that the householder defence is not available in cases where the injured person entered a building lawfully, but thereafter became a trespasser?
ii) Was there evidence upon which the Board could conclude that the appellant believed Lance Corporal Lindley to be a trespasser?
iii) In any event, is the conviction safe?
Discussion
"20. Thus, section 76(5A),read
together with section 76(3) and the common law on self-defence,
requires
two separate questions to 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, these are:
(i) Was the degree of force the defendant used grossly disproportionate in the circumstances as he believed them to be? If the answer is "yes", he cannot avail himself of self-defence. If "no", then:
(ii) Was the degree of force the defendant used neverthelessreasonable
in the circumstances he believed them to be? If it was
reasonable,
he has a defence. If it was unreasonable, he does not."
"23. In ourview
the interpretation placed in the Collins case on the householder's defence under section 76 of the 2008 Act as amended by the 2013 Act was correct.
24. Once the jury have determined the circumstances as the defendant believed them to be, the issue, under section 76(3), for the jury is (as it always has been at common law) whether, in those circumstances, the degree of force used wasreasonable.
25. In determining the question of whether the degree of force used isreasonable,
in a householder case, the effect of section 76(5A) is that the jury must first determine whether it was grossly disproportionate. If it was, the degree of force was not
reasonable
and the defence of self-defence is not made out.
26. If the degree of force was not grossly disproportionate, then the effect of section 76(5A) is that the jury must consider whether that degree of force wasreasonable
taking into account all the circumstances of the case as the defendant believed them to be. The use of disproportionate force which is short of grossly disproportionate is not, on the wording of the section, of itself necessarily the use of
reasonable
force. The jury are in such a case, whether the defendant is a householder, entitled to form the
view,
taking into account all the other circumstances (as the defendant believed them to be), that the degree of force used was either
reasonable
or not
reasonable.
27. The terms of the 2013 Act have therefore, in a householder case, slightlyrefined
the common law in that a degree of force used that is disproportionate may nevertheless be
reasonable.
28. As subsection (6) makes clear, in a non-householder case the position is different; in such a case the degree of force used is not to beregarded
as
reasonable
if it was disproportionate.
29. Thus in our judgment the amendments to section 76 put the householderrelying
on self-defence in a position different from all others
relying
on the defence. This is clear on the language of the Act. But it is narrow and not of the wide
ranging
effect for which the defendant contended. We accordingly
reject
the contention that provided the degree of force used by a householder is not grossly disproportionate then it is necessarily
reasonable."
"You heard smashing noises coming from inside and you hammered on the door, demanding that Lance Corporal Lindley let you in. … The door could not be opened from the outside and eventually Lance Corporal Lindley opened the door and let you in. You saw that yourroom
had been absolutely smashed to pieces and you lost your temper. At some stage you picked up a kitchen knife. … It was in your hand and you stabbed Lance Corporal Lindley a number of times in the shoulder, neck and chest area. … You said that he attacked you and threw you around the
room
like a
rag
doll and you genuinely feared for your life so you used the knife in self-defence because you thought he was going to pick it up and use it against you. … There is no doubt that there was a significant amount of provocation from Lindley but the Board
rejected
your
reassertion
that you 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. … You stopped when you
realised
the enormity of your actions and your anger began to subside."