Householders and Intruders

Householders and Intruders - "Grossly disproportionate" force.

One recent case which provoked considerable public concern is the case of Hussain & Hussain [2010] EWCA Crim 94. In this case, the defendants chased after and beat intruders who had burgled their home where they were subjected to a very serious attack by four armed intruders. The Lord Chief Justice of England and Wales, Lord Judge, stated in relation to the force they used against some of the intruders whom they chased and caught:

"This was not vigilante activity. This was not a planned attack. It did not follow careful or even momentary reflection. Munir Hussain acted under extreme provocation. His involvement in this serious violence was a response to the dreadful and terrifying ordeal, and the emotional anguish which he had undergone. He had used some minor, entirely legitimate, violence towards Walid Salem when he threw the small table at him in his house and so helped set off the chain of events which brought the ordeal of his family to an end. Once he had been violent, his relief that his family and he himself were safe, and his understandable fury at what had happened, combined to make a decent, peaceful man act entirely out of character, in hot blood and, unsurprisingly, without detached reflection. His home had been invaded by a gang of armed men. He and his family were treated with contumely. They were in effect kidnapped in their own home. He feared for their lives. He feared for the honour of his wife and daughter. He did not know what had happened to his youngest son, and feared for what might already have happened. Those fears were amply justified. Thanks to his own efforts, at least in part, all of them were lifted. He might have reacted, as some would, with an overwhelming sense of relief and fatigue, and become incapable of any action. He did not. Nevertheless, it remains the fact that whatever he did in the immediate aftermath was a reaction. In such a fraught situation, provoked beyond endurance, and without contemplating what to do for the best, he reacted against one of the men who was responsible for everything that he and his family had undergone."


As a result, the sentence handed down to Munir Hussain was reduced from 2 years, 6 months' immediate imprisonment to 12 months' imprisonment suspended for 2 years and the sentence of Tokeer Hussain was reduced from 3 years and 3 months' imprisonment to a term of 2 years' imprisonment.


This case, and those of Martin and Yaman (discussed in the Law Relating to Self Defence section), illustrate the kinds of problem that often arise when householders are confronted with an intruder. As a result, section 43 of the Crime and Courts Act 2013 adds to section 76 of the Criminal Justice and Immigration Act 2008 a new subsection (5A) the effect of which is to apply a lower standard of what is reasonable in householder cases. Section 76(5A) provides:


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.


To emphasise that section 76(5A) applies only in householder cases, subsection (6) provides:


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 intended effect of section 76(5A) is clear. Provided a householder acts honestly and instinctively when protecting themselves or others from an intruder using a level of force that was reasonable in the circumstances as they saw them then they will not be guilty even if that level of force turns out to be disproportionate in those circumstances. The householder will only be guilty if the level of force used was grossly disproportionate.


However, the householder will not be entitled to rely on this heightened defence if he acts for any purpose other than to defend himself or others (see, section 8A(a) below). If, for example, the householder uses force to protect his property then the rules on reasonable force will apply.


Whether or not the level of force used was disproportionate or grossly disproportionate turns on the facts of each case which, similar to the law on self defence generally, includes the personal circumstances of the householder and the threat posed by the intruder, whether real of perceived. One thing seems clear; that is defendants such as Martin, Hussain and Yaman ought to be treated more favourably by the courts under the new law. As is obvious from the new subsection, it only applies to "householder" cases which are defined in section 76(8A) and (8B) of the 2008 Act as:


(8A): For the purposes of this section 'a householder' case is a case where:

(a) the defence concerned is the common law defence of self defence

(b) the force concerned is force used by D while in or partly in a building, or part of a building, that is a dwelling or is forces accommodation (or is both)

(c) D is not a trespasser at the time the force is used, and 

(d) at the time D believed V to be in, or entering, the building or part as a trespasser.


(8B): Where:

(a) a part of a building is a dwelling where D dwells

(b) another part of the building is a place of work for D or another person who dwells in the first part, and

(c) the other part is internally accessible from the first part

that other part, and any internal means of access between the two parts, are each treated for the purposes of subsection (8A) as part of a building that is a dwelling.


The above provision applies not only to householders but also members of their family and invitees. The rules also apply in cases where the person lives in a building which is also their place of work.

More recently, in R (On the application of Denby Collins) v Secretary of State for Justice [2016] EWHC 33 (Admin) the Court had to consider the correct meaning of s 76(5A) in relation to self defence and Art 2 ECHR). Art 2 (deprivation of life) will not be regarded as inflicted when it results from the use of force which is no more than absolutely necessary in defence of any person from unlawful violence, etc. The relevant facts of Collins are that in the early hours on 15 December 2013, Denby Collins burgled the home of B. When confronted by B, he said he was Fred West and wanted to see the Queen. He was restrained by B in a headlock, prone, for around 6 minutes. He suffered serious injury from which he is not expected to recover. B’s wife called police. During call, B could be heard saying “I’ll fucking kill you” and shouting to tell the police to get there now “… or else I’ll break his fucking neck”. The Court confirmed that the correct test under s 76(5A) is in 2 (disjunctive) parts; ie the answer to the first part does not provide the answer to the second. First, was the degree of force D used grossly disproportionate in the circumstances as he believed them to be? If the answer is “yes”, he cannot avail himself of the defence of self-defence. If “no”, then secondly, was the degree of force D used nevertheless reasonable in the circumstances he believed them to be? If it was reasonable, he has a defence. If it was unreasonable, he does not. The Court rejected the argument that s76(5A) was incompatible with Art 2 ECHR.