Examination of Witnesses (Questions 1
- 19)
TUESDAY 9 MAY 2000
MR DAVID
CALVERT-SMITH
QC AND MR
MARK ADDISON
Chairman
1. Good morning, Mr Calvert-Smith, and welcome,
Mr Addison, to what I think is your first visit to us. We are
here, as you know, to look at aspects of the work of the Crown
Prosecution Service. I want to make clear, which I know that you
will know already, that because of the sub judice rule
we will not, of course, directly ask questions about the Alton
Manning case or the Tony Martin case, although it may be that
there will be more general questions in that area.
(Mr Calvert-Smith) Thank you.
Mr Winnick
2. As the Chairman has just pointed out, of
course, the sub judice rule applies very strictly in the
House of Commons, be it in the Chamber or in Committee, so my
questions will be, obviously, of a general nature, Mr Calvert-Smith.
Could you give us any figure regarding the number of cases in
a given year, say, in very recent times, where a prosecution has
been made against someone who has used force in burglary cases?
In other words, where a person who owns the house or occupies
the house has used force and, it is considered, inappropriate
force?
(Mr Calvert-Smith) I cannot give you a figure. We
do not collect statistics specifically related to that type of
situation. All I can say is that the evidential test which we
apply will militate against prosecution—because of the likelihood
that a jury will find that the householder was behaving in reasonable
self-defence—in, I would suggest, the majority of such cases.
The agony of the moment, the fact that the person has a right
not only to defend himself but his property and to act in the
prevention of crime gives three very strong reasons why it would
only be in a clear case, which we think that a jury should decide
whether or not the force used was reasonable, that we would go
to the extent of prosecution. Clearly, such things, without infringing
the rule, as the use of a gun may well be influential in that
respect.
3. Leaving aside the case we have said we cannot
mention, no other case comes to mind in more recent times where
a prosecution has been made against someone who has used what
is considered, no doubt, excessive force?
(Mr Calvert-Smith) I have been involved as counsel
in such cases in the past and I do recall a case in Yorkshire
which, I think, ended in acquittal, in which a firearm had been
used on an allotment but from a garden shed in which the person
was, as it were, under attack from illegal activity and had fired
a gun. We prosecuted and the jury, in the end, acquitted.
4. How long ago was that?
(Mr Calvert-Smith) That was certainly within the last
two years or so.
5. The law is quite clear, is it not, that reasonable
force can be used in defending one's property?
(Mr Calvert-Smith) Yes.
6. Could you give any sort of explanation of
what "reasonable force" means in legal terms and as
far as the Crown Prosecution Service is concerned?
(Mr Calvert-Smith) We attempt to apply the law which
is as stated by the judges in various decisions. The force used
must be actually in self-defence. If there is evidence that it
was in self-defence then the question is was that in reasonable
self-defence? The first thing is was it proportionate to the actual
threat anticipated? So that a push in the street met by the production
of a gun clearly would not be proportional. However, the law has
for many, many years recognised that in the heat of the moment
those who are under attack, whether it be to their property or
to their person, cannot really be expected to judge to a nicety
how to react, and if in the agony of the moment they do something
which, on reflection, was an over-reaction, then we would not
prosecute if we did not think there was a realistic prospect—and
the jury would, no doubt, acquit if we did. Clearly, there are
cases where we consider that a jury should decide whether in these
circumstances the force used was reasonable in all the circumstances.
Only a jury can actually hear for themselves the account of the
defendant in a case where he/she was the victim of an attack,
and if we believe that there is a realistic prospect that a jury
will find that force was out of proportion to the threat offered
and not affected by the heat of the moment situation—as
being retaliation, or punishment or revenge—then we would
ask a jury to decide.
7. Reasonable force allows quite a lot of scope.
If, for example, a person finding a house being burgled, totally
taken by surprise, decides, wisely or otherwise, to do everything
possible and gets an object—which may be a hammer or whatever—and
throws it at the person or hits the person over the head, on the
basis that not only is the house being burgled but his or her
safety is at risk, in a case of that kind, leaving aside what
decision a jury may decide if the case went to court, do you feel
the Crown Prosecution Service would consider it appropriate to
prosecute?
(Mr Calvert-Smith) I think it would be most unlikely,
in those circumstances.
8. Most unlikely?
(Mr Calvert-Smith) Yes. There have been a number of
cases recently in which we have not prosecuted. I think there
was one in the paper today of a gentlemen who strangled somebody
to death who appeared in his bedroom—a burglar—in
a hand-to-hand fight, if you like. The view was taken that that
was reasonable self-defence and certainly should not be put before
a court. So that with quite extreme violence, if sudden and in
the agony of the moment, as I put it earlier, we would probably
not prosecute, bearing in mind the circumstances in which it was
inflicted.
9. Mr Calvert-Smith, without, of course, in
any way, putting words into your mouth—you will give your
own explanation—if there was a feeling that the law is so
biased against householders taking the necessary degree of protection
when their house is burgled that there is not sufficient protection
in law if they take action to protect themselves, what would be
your response to that?
(Mr Calvert-Smith) I do not believe that is the case.
I believe that the test that the courts have set over the years
has taken full account of the very human situation that people
find themselves in; that we can be trusted only to put cases before
the court where a jury is likely to find the force used—albeit
on a burglar or on somebody who is behaving in a criminal way—was
disproportionate and rely on the good sense of juries, if we do
get it wrong, to say "No, now we have heard all the evidence
we do not think this was unreasonable force in the circumstances".
I do not believe the law is unfairly biased in one direction or
another.
10. "Disproportionate" is behind the
whole decision-making of the Crown Prosecution Service; if force
was disproportionate to the incident which occurred?
(Mr Calvert-Smith) Disproportionate in terms of sheer
violence, and one has then to look at the other opportunities
available to the person concerned. Could he or she have done something
less? Was there time for them to do something less? The agony
of the moment situation.
11. You take the view that the law is sufficient,
at the moment, for householders to protect themselves. Do you
see any necessity for a review or change in the law in any way?
(Mr Calvert-Smith) I do not.
Mr Winnick: Thank you very much.
Mr Linton
12. Could I just ask: do you think, Mr Calvert-Smith,
there is any advice you could usefully give to people confronted
with a burglar in their own house?
(Mr Calvert-Smith) Provided that what you do is an
instantaneous reaction to a situation and you take action while
you are still under threat, then I would suggest that you should
do what is available to you—if you wish to risk the possibility,
of course, that you may end up not just the victim of burglary
but of something worse. If, on the other hand, you pursue somebody,
miles away from any case we are talking about, and pursue them
down the street, as it might be, and stab them to death after
they have got away, out of your house, then clearly you are not
defending yourself and you would be doing more than necessary
in effecting a lawful arrest.
13. In these cases where somebody is doing more
than necessary, nevertheless, they are trying to apprehend a burglar,
do you think it would be useful to the CPS to have some kind of
charge short of murder but higher than manslaughter?
(Mr Calvert-Smith) I think the charges are subject
to the codification of the criminal law, which is one of my hobby
horses, but subject to the common law offences of murder and manslaughter
and the lesser offence of assault. Thank God most of these cases
do not end up in fatality. There is sufficient room within the
current range of offences for a jury to reflect the fact that
it was disproportionate but not too disproportionate. Usually,
in such a case, the alternative of manslaughter is left, and,
as you know, manslaughter can be visited by sentences which range
from a probation order right through to life imprisonment. So
the judge can then use a manslaughter verdict to reflect the overall
moral blame to be attached to the activity. So that I am not sure
that I see the need for any special offence of "over-aggressive
self-defence", if you see what I mean.
14. That is slightly side-stepping the point,
because the issue is whether the mandatory life sentence for murder
is unnecessarily restrictive. You are saying that juries just
have to convict somebody of manslaughter and then there is no
problem, but that may not be open to them.
(Mr Calvert-Smith) It may not in a given case, in
which case you move on to the debate, which is not strictly within
my remit, as to whether there should be a mandatory life sentence
or whether sentences for murder, just like anything else, should
be set by the judges. We are, obviously, moving in that direction
in some respects as a result of the judgment in Strasbourg recently.
15. You do not want to give a personal view
on it?
(Mr Calvert-Smith) I do not think I ought to, really,
when I am wearing my hat; I simply prosecute offenders and I leave
it to the courts to decide how they should be sentenced.
16. Can I come on to one or two fairly recent
cases, starting with the two cases that led to the Butler Inquiry
on people who died in police custody. The conclusion of the Butler
Inquiry was not only that the individual cases were dealt with
in an unsatisfactory manner but that the whole system for deciding
whether a case should be pursued or not was fundamentally unsound.
That is all in the past, but I wondered if you could tell the
Committee what changes have been made to the procedures, as a
result of the Butler Inquiry, in the decision-making process.
(Mr Calvert-Smith) I think there are two aspects of
Butler on which we focussed. One is: is it clear who, in the end,
has made the decision? The principal criticism from a structural
point of view in the Butler Inquiry was that it did not seem to
be clear to anybody who had actually taken the decision; it seemed
to have been arrived at, almost, by committee. So that, first
of all, we have an identifiable decision-maker. In deaths-in-custody
cases, that is, at the lowest, a lawyer within the senior civil
service and the central case work branch at Ludgate Hill, where
I work, or it is the head of central case work, or it is me. There
are no other decision-makers now in deaths-in-custody.
17. Three people?
(Mr Calvert-Smith) So that all cases come to us. If,
when the report of the investigator comes in, it is clear beyond
any doubt at all that this was something His Honour Judge Butler
stated in the report where, clearly, there is no question of a
prosecution, then the decision is taken in-house. Likewise, if
it is clearly a case for prosecution, we will take the decision
in-house at one of the three levels I mentioned. If there is any
doubt about the matter we take the advice of senior Treasury Counsel
and consider it, discuss it, obviously, in conference and then
make a decision following the taking of that advice. That is how
we do it now. I do not want to digress, but there is clearly enormous
public concern about particular classes of case. This is one of
them. There are voices—if we are going to come on today
to consider it—when we consider the Code for Crown Prosecutors,
which might suggest there are certain classes of case which excite
such public interest that even if the evidence is not quite as
strong as it is for the common run of cases, there is an argument
for saying that it should be put in front of a court in any event.
That is, clearly, something that I will want to consider, having
heard all the submissions about the way in which we might revise
the Code for Crown Prosecutors. I am not suggesting we should
do that, because there are enormous advantages in complete consistency,
and just because the public are more interested in one case than
another, perhaps, defendants should not be put in peril of conviction
just because the public would like to see a trial. However, clearly,
there are arguments which I have read in respectable journals
to that effect, and, obviously, deaths in custody might be one
such topic.
18. Could I just move on to one or two other
recent cases. I do not want to give the impression we are dwelling
on the criticisms in difficult cases at the expense of the general
picture, and I am sure my colleagues will come on to the general
picture in a moment. There was a case involving charges against
the police in Derby recently which a judge ordered to be abandoned
because of what he called "unjustifiable delays", and
he put the blame fairly and squarely on the CPS. I do not want
to revisit the case but I do want to know what changes have been
made as a result of that, because I think it is very unfortunate
if a case involving police behaviour—particularly police
behaviour towards ethnic minorities—should fail to come
before a jury simply because of administrative problems.
(Mr Calvert-Smith) The Derby case involved the investigation,
in the end, of an entire section of the Derbyshire Constabulary.
By the time it became known to members of the public in Derby
that there was this wide investigation, a flood of complaints
came in directed at one or more members of this particular bit
of the Derbyshire Constabulary. What had started out as a complaint
which one would have hoped to have dealt with, probably, in a
month or so—"you hit me, no I didn't" sort of
complaint—developed into a massive inquiry because of the
safeguard arrangements which were then in place immediately following
Judge Butler's report. All those complaints—and, of course,
we are not talking about deaths in custody, this was any assault
by an officer alleged upon a member of the public, whether in
custody or in the street or wherever—were being treated
in an extremely serious way. My own view is that no doubt to allay
the public concern generally about the way we dealt with such
cases, it was probably necessary for those very detailed arrangements
to be made. We have now streamlined the process. The sort of case
of assault which we are talking about here, albeit alleged on
frequent occasions, is now dealt with by an area of the CPS and
not confined to a few pairs of hands, and not sent, in all cases,
to senior Treasury Counsel. So that we have streamlined our processes.
The—if I may say so—Rolls Royce treatment of cases
coming to us at Ludgate Hill and being concentrated in the hands
of three decision-makers is now confined to deaths in custody,
and I hope such cases as the Derby case will not happen again.
I am not in the business of the blame culture, but it was not
just the CPS that took a long time over this investigation, albeit,
I have no doubt, we could have done better.
19. It rather seems, in the case of Derby, as
though there was a perverse law that a few complaints against
the police will be efficiently and properly investigated, but
when there is a flood of them the system gets bunged up and the
accused have to be acquitted because of the delays.
(Mr Calvert-Smith) It is one of the problems of the
new 42-area structure, which we are trying to grapple with. The
smaller you divide your service into the more difficult it is
to deal with a sudden, huge case because it has finite resources,
whereas the bigger the units you have the easier it is.
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