Collins, R (on the application of) v The Secretary of State for Justice

Factual and Procedural Background

This application concerns the householder's defence under section 76(5A) of the Criminal Justice and Immigration Act 2008 ("the 2008 Act"), inserted by the Crime and Courts Act 2013 and effective from 25 April 2013. The Appellant seeks a declaration that this provision is incompatible with Article 2 of the European Convention on Human Rights ("ECHR").

On 15 December 2013, the Plaintiff was found in the home of the Defendant and was restrained by the Defendant using a headlock, resulting in serious injury from which the Plaintiff is not expected to recover. Following a police investigation, the Crown Prosecution Service (CPS) decided not to prosecute the Defendant; this decision was upheld on review by a specialist prosecutor. The Plaintiff initially challenged the Director of Public Prosecutions’ decision and the Secretary of State under the Human Rights Act 1998, but the challenge against the DPP was abandoned. The legal construction of the legislation used by the CPS supports the claim of incompatibility.

The factual background involves the Defendant, his family, and friends in the Defendant’s home on the night in question. The Plaintiff entered the property uninvited at around 3:00 am, was confronted and chased by the Defendant’s child, then restrained by the Defendant in a headlock. The Defendant and others perceived the Plaintiff as a potential burglar or intruder, especially given his strange behaviour and possession of the Defendant’s wife’s car keys and mobile phone. The Defendant restrained the Plaintiff until police arrived, during which time the Defendant made emotionally charged threats. The Plaintiff was held face down in a headlock for approximately six minutes, resulting in loss of consciousness and serious injury.

The CPS review concluded that a jury would likely find the Defendant honestly believed force was necessary and that the householder defence applied. The review also concluded that the force used was probably reasonable and not grossly disproportionate. The Plaintiff’s family disputed some factual conclusions, but the court accepted the facts as the basis for legal analysis. The challenge focuses on whether the statutory provision under section 76(5A) is compatible with Article 2 ECHR.

Legal Issues Presented

1. What is the proper legal construction of section 76(5A) of the Criminal Justice and Immigration Act 2008 in relation to the householder’s defence?
2. Does section 76(5A) alter the common law defence of self-defence by allowing disproportionate but not grossly disproportionate force to be reasonable in householder cases?
3. Is section 76(5A) compatible with the positive obligation under Article 2 of the European Convention on Human Rights to protect the right to life?

Arguments of the Parties

Appellant's Arguments

• The Appellant contends that section 76(5A) modifies the common law by permitting a householder to use disproportionate, but not grossly disproportionate, force and still be entitled to the defence of self-defence.
• The Appellant relies on the CPS reviewing lawyer’s approach that the use of disproportionate force would not be unlawful in householder cases.
• The Appellant argues that this interpretation conflicts with established case law and the requirements of Article 2 ECHR.
• He further references public law concepts of disproportionality and other statutory provisions to support his interpretation.
• The Appellant also sought to introduce parliamentary materials, including reports and speeches, to assist in assessing compatibility with the ECHR.

Respondent's Arguments (Secretary of State)

• The Respondent argues that the true construction of section 76(5A) does not permit disproportionate force to be reasonable, only excluding grossly disproportionate force from reasonableness in householder cases.
• The Respondent submits that the section preserves the common law test of reasonableness based on the circumstances as the defendant believed them to be.
• The Respondent contends that the CPS reviewer's approach was incorrect in law.
• It is argued that the provision aligns with the protection of the home under Article 8 ECHR and does not violate Article 2.
• The Respondent rejects the use of parliamentary materials in determining compatibility, citing parliamentary privilege and separation of powers principles.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by analysing the statutory text of section 76(5A) in the context of the common law defence of self-defence. It confirmed that the section does not alter the fundamental test, which requires that the degree of force used must be reasonable in the circumstances as the defendant genuinely believed them to be. The provision excludes grossly disproportionate force from being reasonable in householder cases but does not automatically render all disproportionate force reasonable.

The court rejected the Appellant’s interpretation that disproportionate force, short of gross disproportionality, is lawful per se. Instead, the jury must consider two questions: whether the force was grossly disproportionate (which negates the defence), and if not, whether it was nonetheless reasonable. This preserves the common law standard and provides a discretionary judgment space for juries in householder cases.

The court considered relevant case law, including distinctions between public law concepts of disproportionality and the criminal law context of self-defence, emphasising that the statutory language must be interpreted within its proper context. The court also distinguished the facts and legal standards applicable to public bouncers from householders.

Turning to the Article 2 ECHR positive obligation, the court examined the requirement for states to maintain an effective legal and administrative framework to deter offences against the person. It held that the criminal law framework of England and Wales, including the householder defence as defined in section 76(5A), satisfies this obligation. The court noted that the reasonableness limb of self-defence has been consistently held compatible with Article 2(2) requirements of absolute necessity.

The court declined to consider parliamentary materials submitted by the Appellant, citing parliamentary privilege and the separation of powers. It held that while courts may consider such materials to understand legislative context, they may not question the truth or accuracy of parliamentary proceedings or views.

In conclusion, the court found that section 76(5A) is a statutory refinement of the common law defence and does not infringe Article 2 of the ECHR.

Holding and Implications

The court held that section 76(5A) of the Criminal Justice and Immigration Act 2008 is not incompatible with Article 2 of the European Convention on Human Rights.

The provision does not alter the fundamental common law test of reasonableness in self-defence but emphasizes that grossly disproportionate force is not reasonable in householder cases. The court rejected the interpretation that disproportionate force less than grossly disproportionate is automatically lawful. The decision affirms that the criminal law framework in England and Wales effectively deters offences against the person in householder cases and complies with the positive obligations under Article 2.

The direct effect is to dismiss the application for judicial review. The court’s ruling clarifies the legal standard for juries in householder self-defence cases and confirms the compatibility of the statutory provision with human rights law. No new precedent beyond this interpretation and confirmation of compatibility is established.