Commentary on Sections Schedule 15: Exclusions from Definition of “Relevant Publisher” Section 43: Use of force in self-defence at place of residence
486.Section 76 of the Criminal Justice and Immigration Act 2008 applies when the court is considering the question of whether the level of force used by a defendant who claims to have acted in self defence was reasonable in the circumstances as he or she believed them to be.
487.Section 43 amends section 76 of the 2008 Act to give people who defend themselves or others from intruders in their homes greater legal protection. For the purpose of this section, these cases are known as householder cases.
488.Subsection (2) inserts new subsection (5A) of section 76. This provides that in a “householder case”, the level of force used by householders when defending themselves from trespassers (or people they believe to be trespassers) will not be regarded as having been reasonable in the circumstances as they believed them to be if that level of force was grossly disproportionate in those circumstances. In other words, it could be reasonable for householders to use disproportionate force to defend themselves from burglars in their homes.
489.Subsection (3) amends section 76(6) to make it clear that in cases other than householder cases (for example, when people are acting for other legitimate purposes such as defending themselves when they are attacked outside their dwellings, defending property or preventing crime) the current law continues to apply.
490.Subsection (4) inserts new subsections (8A) to (8F) of section 76. These subsections define the meaning of “a householder case” for the purposes of subsection (5A).
491.Subsection (8A) states that the heightened defence applies when (a) householders are defending themselves or others; (b) they are in, or partly in, a building or part of a building that is a dwelling or is armed forces accommodation; (c) they are not trespassing at the time the force is used; and (d) they are defending themselves from a person who they believe is in or entering the building as a trespasser. The use of the terms ‘partly in’ in subsection (8A)(b) and ‘entering’ in subsection (8A)(d) ensure that a householder could rely on the defence for example if he or she encountered an intruder on the threshold of his or her dwelling. The heightened defence would not apply, however, if the confrontation occurred wholly outside the building or part.
492.Subsection (8B) ensures that people who live in buildings which serve a dual purpose as a place of residence and a place of work (for example, a shopkeeper and his or her family who live above the shop) can rely on the defence regardless of which part of the building they were in when they were confronted by an intruder, providing that there is internal means of access between the two parts of the building. The defence would not extend to customers or acquaintances in the shop unless they were also residents in the dwelling.
493.Subsection (8C) creates a similar provision for the armed forces whose living or sleeping accommodation may be in the building they work in and where there is internal access between the two parts.
494.Subsection (8D) applies subsections (4) and (5) of section 76 for the purposes of subsection (8A)(d). This means that householders can still rely on the new defence provided they have a genuine belief that the person is a trespasser. This applies even if their belief was mistaken. A person does not, however, cease to be a trespasser just because they have the permission of a trespasser to be on the premises (subsection (8E)).
495.The term ‘building’ for the purposes of the new subsections includes a vehicle or vessel. This means that people who live in caravans or houseboats, for example, could rely on the heightened defence. It also defines the meaning of ‘forces accommodation’ for those purposes.
496.Subsection (5), in amending section 76(9), confirms that these new provisions change the law and are not merely intended to be clarificatory. The amendments will not operate retrospectively (subsection (6)).