Ray, R v, Court of Appeal - Criminal Division, September 26, 2017, [2017] EWCA Crim 1391

Issuing Organization:Criminal Division
Actores:Ray, R v
Resolution Date:September 26, 2017
 
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Case No: 2016/02668/B4

Neutral Citation Number: [2017] EWCA Crim 1391

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT SHEFFIELD

MR JUSTICE MALES

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 26/09/2017

Before:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

LORD JUSTICE DAVIS

LORD JUSTICE TREACY

MR JUSTICE SWEENEY

and

MR JUSTICE SPENCER

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Between:

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Shaun Smith QC for the Appellant

John McGuinness QC (instructed by CPS Appeals and Review Unit, York) for the Respondent

Hearing date: 19 July 2017

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JudgmentLord Thomas of Cwmgiedd, CJ:

Introduction

  1. The issue in this appeal which is brought with the leave of the Full Court is whether s.76(5A) of the Criminal Justice and Immigration Act 2008, which provides the defence of self defence for the so-called ``householder case'', was correctly interpreted by the Divisional Court in R (Denby Collins) v The Secretary of State for Justice [2016] EWHC 33 (Admin), [2016] QB 862. That decision, given by a court presided over by the President of the Queen's Bench Division sitting with Cranston J, is not binding on this court.

    The factual background

  2. The deceased, Rory Hemmings, had for some years lived at an address in Sheffield with Kirsty Allen and their two children. It was her evidence that the relationship with the deceased had been a violent one, particularly if he had been drinking. On one occasion in 2008 he had held a knife to her throat. She had often had to call the police when she got to the end of her tether. Eventually she had ended the relationship, although the deceased remained under the same roof for a while until he got a flat of his own.

  3. She then began a relationship with the appellant. She told the deceased about it. Her evidence was that he hated the relationship and threatened to smash both their faces in. Her evidence was that the appellant was never violent towards her or her children and had not ``bad mouthed'' the deceased in front of the children. In November 2015 there were various incidents, including one on 6 November when there had been an altercation between the deceased and the appellant. Despite this incident, which occurred when the deceased had come to collect or return the children, there had been other occasions between then and 14 November when he had come to the house but there had been no problems.

  4. On 14 November the appellant and Kirsty Allen were at home. Some abusive texts were sent by the deceased that evening. That evening the deceased was at a party when he was told by a friend that he had slept with Kirsty Allen; it appears that made him very angry.

  5. On the morning of Sunday 15 November Kirsty Allen was awoken by banging on the door. When she opened it the deceased burst in shouting and swearing. She described him as being very angry, particularly as the appellant was in the house. There was evidence that the appellant tried to calm the situation and to get the deceased to leave the premises. The two men started fighting and the children started screaming. Kirsty Allen said she was very frightened.

  6. In the course of that altercation, the appellant stabbed the deceased.

  7. An ambulance was immediately summoned. Whilst they waited for the ambulance the appellant performed CPR on the deceased. The medical evidence was that the cause of death was a single stab wound, 6 to 10 cm in depth, from the knife which had measured 11 cm. The degree of force required could not be established with certainty but it was possible that only mild force was used because the knife had not come into contact with resistance from bone or cartilage.

  8. The appellant's evidence was that during the fight in the kitchen he thought that the deceased had a weapon. He had made movements towards his pocket, but had not produced anything. The deceased was holding on to the kitchen units so that he could not be pulled away. His hand was on the drainer next to a knife. The appellant feared the deceased would reach for it and use it so in one quick motion the appellant himself grabbed the knife and stabbed the deceased. He did not mean to stab him but did so because he was scared for himself.

  9. The appellant was charged with murder and tried at the Crown Court at Sheffield before Males J and a jury in May 2016. The appellant admitted stabbing the deceased but contended he had acted in self defence. The judge summed the case up in accordance with the decision in Denby Collins. Intent was also a live issue at trial.

  10. On 11 May 2016 he was convicted by a majority of 11 to 1 of murder. He was sentenced to life imprisonment with a minimum period of 12 years, less time on remand.

    The common law and the relevant statutory provisions

    The defence at common law

  11. The defence of self defence was developed at common law. Although it might have been suggested by some authors at various times that any force used in defence of self or property was lawful, the common law developed so that there was a requirement that the force used be reasonable: see the note Using Force on Burglars by Professor John Spencer: [2016] 6 Archbold Review.

  12. In the leading judgments, the law was made clear. For example, in Palmer v R [1971] AC 814 Lord Morris of Borth y Gest, in giving the judgment of the Privy Council, made the point that:

    ``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 defensive 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.''

  13. This view was recently echoed by the Vice-President of this Court, Hughes LJ as he then was, in R v Keane, R v McGrath [2010] EWCA Crim 2514, [2010] Crim LR 393, when he commented that the law as developed was not complicated: it represented ``a universally recognised...

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