Subsection (5A) allows householders to use disproportionate force when defending themselves against intruders into the home. The provision came into force on 25 April 2013 and applies to cases where the alleged force was used after that date. The provision does not apply restrospectively. It provides that where the case is one involving a householder (please see the section below for further details) the degree of force used by the householder is not to be regarded as having been reasonable in the circumstances as the householder believed them to be if it was grossly disproportionate.
A householder will therefore be able to use force which is disproportionate but not grossly disporportionate.
The provision does not give householders free rein to use disproprtionate force in every case they are confronted by an intruder. The provision must be read in conjunction with the other elements of section 76 of the 2008 Act. The level of force used must still be reasonable in the circumstances as the householder believed them to be (section 76(3)).
In deciding whether the force might be regarded as 'disproportionate' or 'grossly disproportioante' the court will need to consider the individual facts of each case, including the personal circumstances of the householder and the threat (real or perceived) posed by the offender.
Section 76(7) sets out two considerations that should be taken into account when deciding whether the force used was reasonable. Both are adopted from existing case law. They are:
- that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action;
- that evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.
