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Dr. Nick Palmer (Broxtowe) (Lab): I do not criticise the hon. Member for North Thanet (Mr. Gale) for introducing the Bill, even though I disagree with it. That is for two reasons. First, I do not criticise him anyway because he is a fellow officer of the all-party animal welfare group. Secondly, by introducing the Bill he is reflecting a genuine area of public concern. From some of the things that the hon. Gentleman and his co-sponsor the right hon. Member for Bromley and Chislehurst (Mr. Forth) have said, I cannot help feeling that, whereas in the previous debate we had some probing amendments that were not designed to be taken completely at face value, we have here something of a probing Bill, and that they are not entirely convinced that the Bill as it stands is to be taken completely seriously.
Mr. Gale: I am delighted to clarify the position for the hon. Gentleman. We are determined that the Bill will be taken very seriously indeed, although that does not mean that we necessarily believe that it is perfect as it stands.
Dr. Palmer:
As with a probing amendment, all that we can do is discuss the Bill as it stands. I am sure that the
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hon. Gentleman would not wish us to do otherwise and we cannot discuss hypothetical Bills that might have been presented.
I accept, as I think will all hon. Members who speak, that there is a serious concern among the general public about what they perceive as a lack of clarity over how far householders may go to protect their property. One of my hon. Friends recently had a pub landlord, a very powerful figure—although I appreciate that his was not a domestic property—who felt unable to prevent a group of youths from taking away a case of champagne because they said to him, "If you lay a finger on us, we'll have you for assault." The landlord felt unsure about whether it would be proportionate if he prevented them from taking away his property and did not know what he could or could not do. While he was thinking about it, they disappeared up the road. Many people feel that such examples are all too common. People are not sure where they stand, so they feel that they have to err on the side of caution in case they are prosecuted. I accept, therefore, that the hon. Gentleman is reflecting a legitimate concern.
The ultimate protection in this matter is the system of jury trial. There are cases that we have discussed in other contexts, such as complicated fraud cases, in which there is a case for saying that jury trial is not the best way of reaching justice. But in cases such as those under discussion, jury trial is absolutely essential, because in deciding whether the householder has responded proportionately, it is very important that 12 ordinary men and women make that judgment. I have discussed this issue with my constituents and the hon. Gentleman has doubtless discussed it with his. Most people seem to agree that 12 randomly selected members of the public are likely to have a fair sense of what is a reasonable and proportionate reaction, and what is not.
Mr. Bacon: I am listening to the hon. Gentleman with interest. Does he not understand that the law-abiding householder's fear that if he acts, he will be had up in court, is a deterrent to his acting at all? As a result, the presumption is in favour of the burglar and against the householder, which is part of the problem.
Dr. Palmer: The hon. Gentleman is echoing the point that I made a couple of minutes ago. The problem is that people are uncertain, and they therefore feel inhibited in taking action that a jury would in fact consider reasonable and proportionate conduct. We cannot dismiss this issue.
There are two basic problems with the proposal, which achieves clarity at the expense of common sense: proportionality, and the people whom it affects. On proportionality, as the hon. Gentleman has stressed, the Bill suspends the entire criminal code if the householder—according to their own judgment, and with no other opinion involved—believes that they are threatened by trespass. As has been emphasised, in such circumstances any act is then explicitly authorised. Let us suppose that the householder believes that the person who has walked into his garden is an intruder. If the householder is of a somewhat paranoid persuasion, he might think that there is a second intruder. Under the Bill, he would be entitled not only to detain the supposed intruder, but to torture him in order to establish whether he had accomplices.
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Mr. Bacon: The hon. Gentleman says that the householder would be entitled to torture an intruder. Where in the Bill is reference made to torture?
Dr. Palmer: I shall read the relevant passage. Clause 1(2) states:
"Where this section applies, A is not guilty of an offence by reason of any act"—
"done by him in relation to the person . . . who is attempting to gain entry to the dwelling, if A believes"
that he is acting, among other things, "in prevention of crime", and if he believes that the person concerned
"is, or . . . would be, a trespasser."
In the example that I gave, the householder believes that he is trying to prevent crime by apprehending a second suspected intruder, and that the person he is torturing is a trespasser. Under the terms of the proposal, he would be immune from the process of law. That seems to me, and would seem to most people, disproportionate.
We have talked about an Englishman's home being his castle. An ancestor of mine called Black Douglas had a castle on the borders of Scotland. A neighbouring Laird sent an emissary to discuss a particular feature of their border. When the emissary did not return, the Laird sent a further emissary to ask what had happened to the first one. Black Douglas sent the second emissary back with the message, "You can pick up the first emissary any time—he doth but lack his head." In principle, such a process would be legal under the Bill, so long as my ancestor Black Douglas believed that the first emissary was a trespasser, and that by cutting off his head he was preventing crime.
We have discussed whether Tony Martin would have been protected by the legislation.
Mr. Leigh: Was the hon. Gentleman's ancestor acting in self-defence or to protect his property at the time?
Dr. Palmer: We can only speculate, but my ancestor would undoubtedly have felt that he was preventing crime, which is covered by clause 1(2)(a)(v).
Let us move on to Tony Martin. I do not want the public to feel that we are treating the Bill frivolously. We all indulge in slightly wilder excursions at some time, but I want to treat the Bill seriously. Tony Martin would, under clause 1(2)(a)(v), be entitled to believe that by shooting Fred Barras he was preventing crime. Indeed, he probably was preventing crime by shooting him, because Fred Barras had a long record of criminal convictions and would likely have gone on to commit some more. Tony Martin could also reasonably say that Fred Barras was a trespasser—no one disputes that. There is no doubt—the hon. Member for Gainsborough (Mr. Leigh) may disagree—that the Bill would have provided Tony Martin with a defence for his action.
Mr. Leigh:
We could have an argument about this matter in the courts, whenever the hon. Gentleman wishes, but the fact that the intruder was running away
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at the time was a crucial consideration for the court and suggests that the Bill would not apply to those circumstances. It would have been very different if the intruder had been running towards Mr. Martin. There, however, he may well have had a defence under existing legislation.
Dr. Palmer: The hon. Gentleman makes my point. He says that it would have been difficult, given that Fred Barras was running away, to persuade the courts that Tony Martin could reasonably have thought that he was preventing crime. However, at the very core of the Bill is the assumption that he would not have to show that he was being reasonable. Tony Martin could unreasonably believe that he was preventing crime. It is current law that refers to being "reasonably" of such a belief and proportionate action follows from that, but under the Bill, anyone is entitled to act "unreasonably" without any limit whatever. That is the fundamental flaw in the Bill. Tony Martin is one example, but it is possible to consider more extreme ones. The hon. Member for Ludlow (Matthew Green) mentioned intelligence agents intruding on the property of a suspected terrorist.
That brings me to my second major objection, which is about who the Bill may affect. As I said earlier, one is potentially exposed to the Bill the moment one puts one's hand on the garden gate of a property. That is seen explicitly in clause 4(1), which covers "any yard" or "garden" of a property
"belonging to it and occupied with it."
A postman, a Jehovah's witness or anyone else calling on the home and touching the garden gate could—if the occupier believes, reasonably or unreasonably, that the person is an intruder and will be a trespasser when he walks through the gate, or that a crime may be prevented—lawfully be shot. Indeed, the householder would be entitled to do anything. That is clearly indefensible and I do not believe that that can be seriously intended. I appreciate that Bills can always be improved in Committee, but they need a fundamental connection with common sense and reality.
Let me take another concrete example from real life. A British tourist was visiting the United States—Florida, I believe—and on a rainy night, he went a little astray and walked up a garden path to ask the householder the way. The householder saw a figure approaching his house, in the late evening on a rainy night, took out a gun and shot him dead.
That was an innocent British tourist who had done nothing wrong. He was not behaving in a threatening manner, and no reasonable person would say that his behaviour could be interpreted as threatening. However, the Bill would not require that the householder be a reasonable person or reasonably interpret such behaviour. Indeed, as I said in an intervention in the speech by my hon. Friend the Member for Ealing, North (Mr. Pound), if the householder is mentally deranged or under the influence of drugs, it is still not a problem because he would not have to prove that he had acted reasonably. He would merely have to say that in his state of mind at the time he believed that he was preventing crime and that the person approaching his home was a potential trespasser.
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The hon. Member for North Thanet said that the Bill was not about the 12-year-old who kicks a football into a garden and is shot by a blunderbuss. However, under the Bill, if a 12-year-old kicked a ball into a stranger's garden and entered it, the householder would be immune from prosecution if he shot the child, as long as he believed that he was protecting his property and that the child was a trespasser. The child would undoubtedly be a trespasser if he had entered a garden to retrieve a ball. If the householder believed that the child might break his greenhouse by kicking the ball around, he could argue that he was protecting his property by shooting him. One might say that the householder was being unreasonable, but the Bill specifies that the householder does not have to be reasonable. He is entitled to take any action against that 12-year-old child, as long as he believes that he is thereby protecting his property.
The basic difficulty of the Bill is that it moves away from the time-honoured principle in British law of the reasonable man. In jury trials we are accustomed to the idea that juries are able to assess the circumstances, listen to both sides of the case, and weigh up whether the behaviour of the accused was reasonable or unreasonable.
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