Following the case of 78-year-old Richard Osborn-Brooks, who was briefly probed after the fatal stabbing of a burglar who invaded his house, the law of self-defence is once again in the spotlight.

Mr. Osborn-Brooks awoke in the early hours of the morning to find two men in his home, and stabbed one of them in the upper body, killing him.

So, what are your rights when dealing with an intruder?

Is revenge an option?

There is no ‘right of revenge’ in English law, punishment, following conviction is meted out by the courts.

Can I Defend Myself or my Family From Attack?

You do have the right to use reasonable force to defend yourself.

There is a mix of statutory and common law provisions that provide for self-defence.

Section 3 of the Criminal Law Act 1967 provides:

“A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.”

The government, with much fanfare, enacted section 76 of the Criminal Justice and Immigration Act 2008, to provide for a so-called ‘householder defence’. Also, case law (common law) also defines the scope of this defence.

What does self-defence mean?

In Palmer [1971] AC 814 the court stated: “In their Lordships’ view the defence of self-defence is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. It requires no set words by way of explanation. No formula need be employed in reference to it. Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. Of these a jury can decide. It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defencive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have to avert the danger by some instant reaction.”

In Ray [2017] EWCA Crim 1391 the court went on to consider the amendments made by the Criminal Justice and Immigration Act, and the following principles emerge:

  1. The jury must first establish the facts as to what happened.
  2. Then the jury must decide whether, in those circumstances, the degree of force used was reasonable.
  3. In determining the question of whether the degree of force used is reasonable, in a householder case, the effect of s. 76 (5A) [of the CJIA 2008] is that the jury must first determine whether it was grossly disproportionate. If it was, the degree of force was not reasonable and the defence of self defence is not made out.
  4. If the degree of force was not grossly disproportionate, then the effect of s.76(5A) is that the jury must consider whether that degree of force was reasonable taking into account all the circumstances of the case as the defendant believed them to be. The use of disproportionate force which is short of grossly disproportionate is not, on the wording of the section, of itself necessarily the use of reasonable force. The jury are in such a case, where the defendant is a householder, entitled to form the view, taking into account all the other circumstances (as the defendant believed them to be), that the degree of force used was either reasonable or not reasonable.

It can thus be claimed that the statutory requirements have slightly refined the common law in householder circumstances, in that disproportionate force can still be justified. In the instance of a non-householder, the degree of force employed is not to be considered appropriate if it was disproportionate.

The Judge should always be careful when summing-up to ensure that a jury is aware of the special feature of householder cases. In Ray [2017] EWCA Crim 1391, the court stated:

“It nevertheless may not always be easy for a jury readily to appreciate the task that faces them in a householder case. It is therefore important that when summing up in cases where the householder’s defence is raised the judge gives some colour to the issue of self defence which arises. It may be helpful to explain to the jury in general terms that Parliament has conferred a greater latitude in cases of a householder in his own home, for reasons they will doubtless readily understand. It can be pointed out that what might be an unreasonable degree of force used when confronting an aggressive individual in a club might not be so when used by a householder confronting an intruder in his own home. That is why it is particularly important that the jury assess the defendant’s actions by reference to the circumstances in which he found himself and as he believed them to be – a point that can then be illustrated and expanded in the summing up with the detail appropriate to the case. However, it must of course be made clear to the jury that the use of force that is grossly disproportionate (completely over the top, in ordinary language) can never be reasonable.

It would, in our opinion, be generally beneficial to convey to the jury in such a case the difficulty that any householder would face if an intruder entered his or her home in everyday terms.

The householder has some leeway in terms of the amount of force used; if the jury does not think the amount of force used was excessive, they must carefully consider all of the circumstances in assessing whether the prosecution has proven that the amount of force used was unjustified. The setting is what sets the householder case apart.

It’s often helpful to lay out the kinds of facts that the jury should consider when deciding whether a householder’s use of force was reasonable for that purpose. These could include the shock of discovering an intruder, the time of day, the presence of other help, the desire to protect the home and its occupants, the vulnerability of the occupants, particularly children, or the picking up of an object (such as a knife or stick that would be lawfully available in the home), the intruder’s conduct at the time, or the picking up of an object (such as a knife or stick that would be lawfully available in the home) (or on any relevant previous occasion if known to the defendant). Each of these factors could lead to the conclusion that what was done, such as employing a knife in an ordinarily irrational situation, was justified in the circumstances of a householder confronting an intruder.

The issue of retreat could be another useful example. The potential of retreat is only one criterion in deciding whether the degree of force employed was reasonable, as stated in Section 76(6A). If a confrontation in the street is imminent, the ability to retreat may be critical in assessing whether the use of force was justified. However, in the case of an intruder in the home, the choice of retreat is unlikely to be available in many circumstances, and hence the level of force used, while disproportionate on the surface, may be considered appropriate.”

Is this a straightforward law to understand and apply?

Not really, no.

But it all boils down to this: if you do what you honestly feel is necessary to protect yourself or others from harm, the law will support you. Your response will not be reviewed on its merits, and the case law makes it plain that due to the unique circumstances you will confront, some leeway will be granted.

Mr. Osborn-Brooks’ case provides tentative support for the balance of the law in this area, since it has functioned well.