Steven Cheeseman [2019] EWCA Crim 149
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R v Steven Cheeseman [2019] EWCA Crim 149 was an appeal to the Court Martial Appeal Court in which the Lord Chief Justice, Mrs Justice Cheema-Grubb and Mr Justice Martin Spencer dismissed a conviction appeal, holding that the Judge Advocate had erred in his interpretation of the householder defence but that the conviction was nonetheless safe.
On 24 March 2017 Corporal Cheeseman stabbed and injured Lance Corporal Lindley in single living accommodation at Alexander Barracks, Cyprus. He was prosecuted for attempted murder. On 4 May 2018 the Board at the Military Court Centre Colchester convicted him of wounding with intent to do grievous bodily harm, acquitting him of attempted murder. He was sentenced by Judge Advocate General HHJ Blackett.
The appellant and Lance Corporal Lindley had both been drinking in the appellant’s room on the morning of 25 March 2017. The appellant left to get lunch around 12.20, leaving Lance Corporal Lindley in his room. When he returned at about 13.00 he found the door locked from the inside. Both men were intoxicated. The appellant heard Lance Corporal Lindley trashing his room and banged repeatedly on the door, shouting words to the effect of “you had better not be smashing up my stuff or I’ll kill you”. The Board later found those words were not meant literally. Lance Corporal Lindley eventually opened the door. The appellant’s case was that Lance Corporal Lindley, a very large man, attacked him and that he believed Lindley would very likely kill him if he did not defend himself. The Board found the appellant did not arm himself with a knife before entering but picked it up once inside. Many of the appellant’s personal belongings had been broken.
The defence at trial invoked the householder defence introduced by amendment into section 76 of the Criminal Justice and Immigration Act 2008 by the Crime and Courts Act 2013. That provision applies in a householder case where the defendant is not a trespasser and believed the other person to be in or entering the building or part as a trespasser. In such cases the degree of force used is not to be regarded as reasonable if it was grossly disproportionate rather than merely disproportionate, the test that applies in non-householder cases. The judge ruled that the householder defence applied only to cases where the injured person was an intruder who had entered premises unlawfully, rather than someone who entered lawfully but thereafter became a trespasser. He further ruled that there was no evidence that the defendant believed Lance Corporal Lindley to be a trespasser.
The appeal raised three issues: first, whether the judge was correct that the householder defence was unavailable where the injured person entered lawfully but later became a trespasser; second, whether there was evidence on which the Board could conclude the appellant believed Lance Corporal Lindley to be a trespasser; and third, whether the conviction was in any event safe.
The court held that the judge had erred in his interpretation of section 76(8A)(d) of the 2008 Act. The language of the statute was clear. The relevant belief was that the defendant believed the other person to be in the building as a trespasser or entering the building as a trespasser. There was no warrant in the statutory language for limiting the provision to intruder cases. Mr Edwards for the respondent did not press an argument to the contrary. The court considered that the judge had been led into error by language used in earlier authorities, R (Denby Collins) v Secretary of State for Justice [2016] EWHC 33 (Admin) and R v Ray [2017] EWCA Crim 1391, which referred to intruders because those were the facts of those cases. Ministers had consistently referred to intruders when explaining the householder defence in Parliament, but that was to take the paradigm example as defining the limits of the defence in a way inconsistent with the statutory language. Subsection 8A(d) was concerned with the defendant’s belief whether the person was in or entering the building as a trespasser, not whether the person entered as a trespasser.
The court noted that in most cases the question would cause no difficulty because the defence would arise in the context of an intruder. In other cases it would be unnecessary for a jury or Board to wrestle with questions of property law and the nicetie s of whether someone who started as an invitee became a trespasser. The defence was concerned with the defendant’s belief, not whether someone was in fact a trespasser. The question was whether the defendant believed the person concerned had no right or business to be in the building or was there without authority at the time of the violent incident. On the facts it was clear that Lance Corporal Lindley became a trespasser at least when he started to damage the appellant’s room and belongings, but the appellant did not understand that to be the case. His case was that he understood him to be a trespasser when he demanded that Lance Corporal Lindley leave but the demand was ignored.
On the second issue the court accepted that the evidence of the appellant’s belief that Lance Corporal Lindley was in his room as a trespasser was relatively thin. The appellant had given evidence in chief that he demanded Lance Corporal Lindley leave his room but the demand was ignored, though he appeared to row back from that in cross-examination and it was a detail not mentioned in interview. Nonetheless, the court concluded that had the judge interpreted the statutory provision correctly the householder defence should have been left to the Board.
The court nevertheless concluded that the conviction was safe. At a court martial the sentencing remarks are delivered by the Judge Advocate, who determines sentence with the Board though he does not take part in the Board’s deliberation on guilt. That enabled the Judge Advocate to pronounce sentence in the sure knowledge of the Board’s underlying findings of fact. The court was satisfied from the sentencing remarks that the Board was satisfied the appellant did not genuinely believe it was necessary to use force to defend himself, which was the starting point for consideration of self-defence. The Judge Advocate-General had stated that there was significant provocation from Lindley but the Board rejected the reassertion that the appellant acted in self-defence, concluding that he lost control in his drunken state because of what Lindley had done to his room. The Board did not believe the threat to kill was meant literally and concluded the appellant did not intend to kill. The appellant stopped when he realised the enormity of his actions and his anger began to subside. The Board had clearly rejected self-defence completely.
The court rejected the submission that the language did not exclude the possibility that the Board accepted the defendant acted in self-defence but used unreasonable force. The Board had considered the appellant significantly provoked but rejected self-defence completely. It would have been a powerful mitigating factor had this been a case of genuine belief in the need to defend oneself accompanied by unreasonable force, but there was no sign of that in the sentencing remarks as there would have been if that was the Board’s approach. In short, although the judge had erred in law in his interpretation of the householder defence provisions and in ruling that the defence should not be left to the Board, the conviction was safe because the Board had found the appellant did not genuinely believe it was necessary to use any force in self-defence.
Also cited as: [2019] 1 Cr App R 34 · [2019] 1 WLR 3621 · [2019] WLR 3621