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Mr. Forth: Notwithstanding his moving quotation about burglary, can my hon. Friend make it clear that his Bill makes no distinction between the hours of light and the hours of darkness? Will not anyone entering someone else's home be subject to its provisions, regardless of the hour?

Mr. Gale: My right hon. Friend is of course right. The quotation is historic and applies to a time when law-abiding burglars only committed their crimes at night.

The heading "Home defence (criminal liability)" in clause 1 indicates that the clause concentrates—as, indeed, does the whole Bill—on the defence of the home. It provides that the person being protected, person A, is protected when he or she is in a dwelling. "Dwelling" is defined later in the Bill. That person must be either the occupier of the dwelling, or present with the licence—the permission—of the occupier. That is standard statutory language. The occupier is the person currently in occupation, who may or may not be the owner. With respect to Mr. Jenkins, his article in The Times was palpably wrong, at least in regard to this Bill. The Bill does not differentiate between owner and tenant; it deals with the occupier.

When the circumstances specified in terms of the occupier exist, the occupier is given special protection in respect of action that he takes against an intruder—person B. The person qualifies as B if he is trespassing in the dwelling. Again, that is a well understood legal term, covering anyone who is in the dwelling without consent.
 
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I shall come back to the nature of "dwelling", which is defined later in the Bill. Clause 1(2) also treats as an intruder—as B—a person who is attempting to gain unlawful entry, but has not yet succeeded in doing so. The person outside the window endeavouring to force the locks is as vulnerable to this defence as the person who has already broken in.

Clause 1(2) protects the occupier against the person or property of person B, the intruder, for one of five listed reasons, which are self-explanatory. The wording of the last of them, that person A is acting "in prevention of crime", might cause some consternation, so I shall clarify it. It is taken from paragraph 9.10 of the Law Commission consultation paper No. 173, "Partial Defences to Murder". Under the clause, a person must genuinely believe that he or she is acting for one of the five reasons, but it does not matter if that person is mistaken in his or her belief.

The clause has been subjected to some criticism by barristers because, curiously, they do not believe that it goes far enough. There is a legal concern, which may have to be addressed in Committee, that in dealing with the householder in this way, those of us who are promoting the Bill have sought to protect too narrow a special interest group. That is even though the context of the dwelling and the occupier is very broad. Another concern is that the circumstances as described in clause 1 may be too narrow. I am perfectly prepared to concede this morning that we will need to address that when the Bill enters Committee, as I hope that it will.

The Law Commission paper that I have cited goes on to say that a person should not be convicted where the

"acts in question were undertaken in self-defence and may have been an instinctive response to the perceived level of risk",

and comments:

"It is hard to see why the law affords greater protection to those who kill in response to insults"—

under the existing defence of provocation—

"than to those who do so while protecting their homes."

The criminal standard of proof, which is proof beyond reasonable doubt, applies to clause 1, so to defeat the defence in clause 1, the prosecution would have to prove beyond reasonable doubt that the householder did not genuinely believe at the time, in the circumstances then prevailing, that he or she was acting as stated in clause 1.

The title of clause 2, "Home defence (restriction of prosecutions)", suggests that it is intended to restrict the number of prosecutions of householders and others engaged in the defence of the home. The Crown prosecutor arrives at the point of considering public interest only where the facts indicate that the evidence exists to give a strong prospect of obtaining conviction. Even where that is the case, the prosecution must not be instigated unless the public interest requires it. Clause 2 adds a further factor: that the public interest requires householders to be fully protected by the law against intruders into their home.

Dr. Palmer: Just on a technical point, I am puzzled by clause 2. In what circumstances does the hon. Gentleman believe that a Crown prosecutor would think that a potential prosecution was valid under clause 1, or despite clause 1, but nevertheless should not be pursued because of clause 2? In other words, is not clause 2 superfluous if we have clause 1?
 
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Mr. Gale: I freely concede that there may be an element of belt and braces in the two clauses. The hon. Gentleman is right: clause 2 merely seeks to underscore the provisions established very clearly in clause 1. It is the carrying out of an act in the belief that it is necessary that is the defence.

Given the issue that the hon. Member for Broxtowe has just raised, I shall intervene on myself, as it were, by pointing out one of the criticisms that is made of the Bill. It is made by those who clearly have not studied the law as it stands—as, indeed, I had not until I began this process. The popular perception is that it is currently in order to use reasonable force, without any change to the law. The difficulty with that is that the Crown Prosecution Service—the system—decides what is reasonable force. The public perception is that, increasingly, that pendulum has swung in favour of the criminal and away from the victim.

I shall come back to that issue, on which I was given some very interesting information this morning by someone who clearly knows what he is talking about. But the difference between the law as it stands and this proposal is that the householder—we need to remember that the householder is the innocent party; the burglar has not been made to burgle—would decide what is reasonable force, not the CPS. If that answer satisfies the hon. Member for Broxtowe, I shall move on.

The title of clause 3—"Home defence (civil liability)"—makes it clear that the clause concentrates on the defence of the home, as indeed does the Bill as a whole. But it is necessary to restate some parts of clause 1 because as I have said, there is a difference in the standards of proof required for civil and for criminal cases.

Clause 4—the Bill's final clause—defines what is meant by "dwelling". The definition is taken from section 63(1) of the Family Law Act 1996, and makes it clear that "dwelling" covers not only a house or flat, but a caravan, houseboat, yard, garden, garage or any part of the curtilage of what most people would describe as—however humble—their home. Subsections (2) and (3) of clause 4 contain the usual transitional provisions, which ensure that the legislation cannot be applied retrospectively. This House has a sad recent history of embarking on retrospective legislation. It is not the intention of the Bill's promoter and sponsors that any of its provisions apply retrospectively. It is not the intention to permit redress to anybody who feels that they were wrongfully convicted in the past.

I have dwelt on the issue of public perception quite deliberately. I defy any Member of this House who is in touch with their constituents—that is most of us—to say, hand on heart, that people do not feel that these days the criminal gets a much better deal than the real victim of the crime. There is a perception that one's home is no longer one's castle. In fact, in some circumstances even the law is not ready to say that one's home is one's castle. I was interested to hear the hon. Member for Corby (Phil Hope) recall at the tail-end of the previous debate how he and his wife had been burgled. Their home was ransacked and violated, and those of us to whom that has happened—again, sadly, that is probably most of us—know how dirty and genuinely violated that makes one feel. The police told him that in some way he was culpable because he had not locked his house up securely enough. He felt
 
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compelled to visit the hardware shop to buy new locks and new catches for his windows; and he fitted them to make his home more secure.

I am not for one moment suggesting that it is not the duty of householders to seek to ensure the security of their property. The days when people living in a village could leave the back door and the front door open all day and probably all night are long gone. However, the suggestion that it is the fault of the householder when someone breaks in tells me that the world has largely gone mad.

This is not, as the press has sought to describe it, a Bill to allow anyone to shoot a burglar. Let me put before the House the case not of Tony Martin, but of Robin Baker-White, a former high sheriff of Kent. He has had intruders on his property a number of times, and he and his wife have felt violated by having their possessions stolen. On one occasion—he has a licensed shotgun—he fired over the heads of the people retreating from his home with his goods, but the police confiscated his gun.

This Bill is not about blasting to eternity with the family blunderbuss the 12-year-old who kicks a football into a garden and climbs over the fence to retrieve it. It is about sending a message to the courts, to the judicial system and to the criminal fraternity that now goes out armed—as an aside, since the abolition of capital punishment for murder—as a matter of course. Nowadays if there is any redress, it tends to be on the side of the criminal rather than the householder.

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