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

The case deals with the correct interpretation of. s76 (5A) of the Criminal Justice and Immigration Act 2008. The provision was also declared compatible with article 2 of the ECHR.

The CPS decided not to prosecute B, a householder, who had held a burglar, Collins, in a headlock for 6 minutes causing life-altering injuries to Collins. As part of their review the CPS interpreted s.76 of the 2008 Act in the following way,

 ‘B would be acquitted of any offence of violence unless the prosecution proved that the degree of force used was grossly disproportionate. The use of disproportionate force would not be unlawful'.

The most relevant parts of s.76 are,

‘(5A) In a householder case, the degree of force used by D is not to be regarded 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 be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances.'

The Court was examining the correct interpretation of this part of s.76, as well as the compatibility of the section with Article 2 of the ECHR.

Held:

s.76(3) adopts and preserves the second limb of self-defence at common law. The central question remains whether the degree of force used was "reasonable in the circumstances as the defendant believed them to be".

s.76(5A) excludes a degree of force which is grossly disproportionate in householder cases, but it does not direct that any degree of force less than grossly disproportionate force is reasonable. That judgement will depend on the facts in individual cases.

Thus, s.76(5A), read together with s.76(3) and the common law, requires two questions to be put to the jury in a householder case. Presuming that the defendant genuinely believed it was necessary to use force to defend himself, these are:

Was the degree of force used grossly disproportionate in the circumstances as he believed them to be? If "yes", he cannot avail himself of self-defence. If "no", then;

Was the degree of force used nevertheless reasonable in the circumstances he believed them to be? If it was, he has a defence. If it wasn't, he does not.

The court also ruled that interpreted in this way the householder defence provision is not incompatible with Article 2 of the ECHR.