Self-defence in a householder case: grossly disproportionate force (CJIA 2008, s.76(5A))
At 1am Rahul Mehta, at home in Leicester, comes downstairs and finds an intruder, Shane, in his kitchen. Shane turns towards the back door. Frightened, and believing that Shane might turn on him, Rahul hits him twice with a heavy torch, breaking his arm. Rahul is charged with inflicting grievous bodily harm and relies on self-defence. It is accepted that this is a 'householder case' within s.76(8A) of the Criminal Justice and Immigration Act 2008.
Which of the following best describes how the jury should approach the degree of force Rahul used?
Choose one answer to see the reasoning.
Worked answer
Correct answer E: They should first ask whether the force was grossly disproportionate in the circumstances as Rahul believed them to be; if not, they must still decide if it was reasonable.
THE RULE TO REMEMBER
In a householder case, grossly disproportionate force is never reasonable; force short of that must still be reasonable in the circumstances as D believed them to be.
Self-defence in a householder case: grossly disproportionate force (CJIA 2008, s.76(5A))
Under s.76(3) of the Criminal Justice and Immigration Act 2008, the reasonableness of the force is judged by reference to the circumstances as D believed them to be. In a householder case, s.76(5A) provides that force is not to be regarded as reasonable if it was grossly disproportionate in those circumstances. In R v Ray [2017] EWCA Crim 1391 the Court of Appeal held that this leaves two questions. First, was the force grossly disproportionate? If so, the defence fails. If not, the jury must go on to consider whether the force was reasonable in all the circumstances as D believed them to be. Force that is disproportionate, but not grossly so, may or may not be reasonable. The possibility of retreat is a factor, not a duty (s.76(6A)).
Why A is wrong: Force is judged on the circumstances as D genuinely believed them to be (s.76(3) and (4)), not the actual facts.
Why B is wrong: The ordinary 'disproportionate' bar in s.76(6) applies only in cases other than householder cases.
Why C is wrong: R v Ray rejected the argument that force short of grossly disproportionate is necessarily reasonable.
Why D is wrong: Under s.76(6A) the possibility of retreat is a factor to consider, not a duty to retreat.
A little more practice done.
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