The approach taken by the CPS lawyer suggests that a defendant will
automatically succeed with self defence in
any case where the degree of force used by the defendant falls short of “grossly disproportionate” force. The Court held that, rather than making it easier for a defendant to succeed, s76(5A) actually limits the scope of self defence: on its true interpretation, a defendant can
never successfully run self defence if the degree of force used is grossly disproportionate. It follows that, in all other cases, the jury must still apply the traditional “reasonableness” test when assessing whether it can succeed.
It was held that, in householder cases, the jury must ask itself:[3]
- Was the degree of force used by D grossly disproportionate in the circumstances as he believed them to be?
- If it was not, then was the degree of force reasonable in the circumstances as he believed them to be? If it was, the defence succeeds. If it was not, it fails.
Separating the question of gross disproportionality from that of reasonableness[4] reveals that the true effect of s76(5A) is to allow for a “discretionary area of judgment in householder cases” whereby the jury can evaluate whether a defendant falls under the protection of the defence, or otherwise.[5] It is therefore clear that the amendments made by s43 CCA 2013 amounted to a refinement of the common law of self defence as opposed to a major change: contrary to the headlines used by mainstream news outlets[6] “the effect of s76(5A) is not to give householders
carte blanche in the degree of force they use against intruders in self-defence”.[7] The acid test – which remains a question for the jury – is still whether the force used was reasonable in the circumstances as the defendant believed them to be.[8]