In R v Riddell [2017] EWCA Crim 413 the court confirmed that self-defence can potentially be a defence to allegations of both dangerous and careless driving. Even though dangerous driving does not inherently involve the use of force, there may be a need for responsive force in particular circumstances. The availability of the defence will depend on the force used in the driving in those circumstances. The court observed that it would be wrong for self-defence to be available when driving off to avoid injury but unavailable to nudge someone away when fearing violence.

Householder cases

The test for self-defence in householder cases, under section 76(5A) of the Criminal Justice and Immigration Act 2008, has been clarified by a five-judge court in R v Ray [2017] EWCA Crim 1391. The result is a more complicated test than most practitioners will have been advising.

The judgment holds that the provision, in a householder case, only slightly refines the common law so that the use of a degree of force that is disproportionate may nevertheless be reasonable. In order to convict in the householder context, the test is not just ‘is the court satisfied that the force was grossly disproportionate’, but whether ‘if the court considers that force may not have been so disproportionate, is it satisfied that the force was unreasonable’. Reasonableness is therefore part of the householder defence as it is for self-defence generally.

The court appreciated that this may cause problems and advised that, in such a case, special attention should be drawn to the problems facing  householders. They are entitled to some latitude as to the degree of force used. Relevant circumstances may include the shock of coming upon 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 lawfully be to hand in the home), and the conduct of the intruder at the time. In the case of an intruder in the home the option of retreat is unlikely to arise and therefore the degree of force used, although otherwise appearing to be disproportionate, might nonetheless be assessed as reasonable.

Section 3 of the Criminal Law Act 1967

R (DPP) v Stratford Magistrates’ Court [2017] EWHC 1794 (Admin) confirms that the defence of the use of reasonable force to prevent the commission of crime will not apply unless the force is directed to the prevention of an imminent or immediate crime. Highway obstruction because of the alleged unlawful supply of arms, which might unlawfully be used at a distant date, did not meet this test.

Dishonesty

In Ivey v Genting Casinos (UK) Ltd (t/a Crockfords) [2017] UKSC 67, a decision of wide-ranging significance, the Supreme Court took the opportunity to question and effectively disapply the Ghosh test from the law of dishonesty. The second part of the Ghosh test (whether the defendant appreciated that by ordinary standards their behaviour would be regarded as dishonest) is no longer to be used: ‘When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held.

‘Once the actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.’

Hearsay

The essential principles of the law of hearsay under the Criminal Justice Act 2003, best identified in R v Twist [2011] EWCA Crim 1143, have been considered in two recent cases. There are three points to consider.

1. Identify the relevant fact or matter that it is sought to prove.

2. Ask if there is a statement or representation of fact of ‘the matter stated’.

3. If ‘yes’, ask whether it was one of the purposes of the maker of the communication that the recipient, or any other person, should believe that matter or act upon it as true so the text was not hearsay and could be admitted.

In R v Midmore [2017] EWCA Crim 533 a text was sent by the co-defendant to a third party (the defendant’s girlfriend) saying ‘this one is the face melter’ (of a photograph of a chemical used in an assault).It was held that:

1. The text established the defendant’s shared intention to use the acid for a criminal, as opposed to an innocent, purpose, which was a matter in issue.

2. It was, on balance, an implied representation of intention not just a comment from which intention could be inferred.

But the statement was not hearsay and could be admitted because:

3. The third test was not met on the facts because there was no intention that she should believe that matter or act upon it as true.

Similarly, in R v Noble and Johnson [2016] EWCSA Crim 2219 a text message from a girlfriend of the defendant setting out an implication that the defendant was in a certain place and had a firearm was not hearsay as it was not intended that the defendant should believe it – he already knew– or act upon it.

Res gestae

Particularly in cases of domestic violence, when a complainant does not attend, the Crown seeks to rely for their truth on statements made earlier to police officers and on the doctrine of res gestae. It can do this without a written notice as this is a common law exception to the hearsay rule preserved by section 118 of the Criminal Justice Act 2003. The common law required that the statements be made by persons so overcome by the emotion of an event that the idea it could have been distorted or invented was so remote as to be disregarded.

However in Wills & Anor v Crown Prosecution Service [2016] EWHC 3779 (Admin), when the complainant did not appear at the hearing, the court held that before the court could proceed to accept any hearsay evidence, including res gestae, there must be a full examination as to why the complainant was not present. The conviction was set aside because that had not been done.

For a person’s mind to be so overcome as to allow the res gestae exception to apply, the statement would normally have to be made very close in time to the incident in question, to avoid it having become distorted or invented. The criteria were consider in Morgan v DPP [2016] EWHC 3414 (Admin). The considerations include:

  • The demeanour of the complainant at the time.
  • The content of any 999 call and of any body-worn camera film.
  • The way the complainant behaved in the call and with police.

The evidence was admitted notwithstanding that the statements were made an hour after the incident, because on the facts the complainant remained for that hour outside the address for fear that the defendant was still there.

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