Ray, R v

Facts

The appellant used force against a person he believed to be an intruder in his home, and the case fell within the householder provisions of s.76 of the Criminal Justice and Immigration Act 2008 as amended by the Crime and Courts Act 2013. He relied on self-defence at trial and was convicted.

History

Convicted in the Crown Court; he appealed against conviction, arguing that the judge had misdirected the jury on the effect of s.76(5A).

Issue

Whether, in a householder case, s.76(5A) requires the jury to treat any degree of force that is not grossly disproportionate as reasonable, or whether disproportionate force can still be found unreasonable.

Held

Appeal dismissed. The judge had directed the jury correctly and the conviction was safe.

Ratio

• In a householder case s.76(5A) excludes grossly disproportionate force from being reasonable but does not make all other force reasonable; the jury must first ask whether the force was grossly disproportionate, and if it was not, must go on to decide whether it was reasonable in all the circumstances as the defendant believed them to be, taking into account that he was a householder facing an intruder.

Key reasoning

• The court adopted the analysis in R (Collins) v Secretary of State for Justice [2016] EWHC 33 (Admin), where the Divisional Court had read s.76(5A) as compatible with Article 2 ECHR on this basis.
• Section 76(5A) must be read with s.76(6), which provides that in a non-householder case force is not reasonable if it was disproportionate; the householder amendment relaxed that rule rather than replacing the general test of reasonableness.
• The structure of the section shows that Parliament intended to give householders greater latitude while retaining the jury's evaluation of reasonableness, and the alternative reading would have licensed considerably disproportionate force.

Where it fits in the module

In the general defences topic the case is central to the debate about the householder amendment, introduced to give greater protection to those who defend their homes. It shows the courts preserving the core requirement of reasonable force and thereby limiting the practical effect of a politically motivated reform. It raises questions about the relationship between proportionality, reasonableness and Article 2 ECHR.

Criticisms

• If disproportionate force can still be unreasonable, the householder amendment arguably changes little beyond telling juries what they already took into account, raising doubts about the point of the reform.
• Conversely, the reading may leave householders uncertain, since they cannot know in advance whether force short of gross disproportion will be treated as reasonable.
• Allowing any disproportionate force to be reasonable in homes sits uneasily with the right to life of the intruder, which is why the courts read the provision narrowly; it can be argued Parliament should have legislated more clearly.