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House of Commons
Friday 4 February 2005
The House met at half-past Nine o'clock
PRAYERS
The First Deputy Chairman of Ways and Means took the Chair as Deputy Speaker, pursuant to the Standing Order.
[Sylvia Heal in the Chair]
Orders of the Day
Criminal Law (Amendment) (Householder Protection) Bill
Order for Second Reading read.
9.34 am
Patrick Mercer (Newark) (Con): I beg to move, That the Bill be now read a Second time.
I am grateful for this opportunity to bring to the House a Bill in which I passionately believe. I start by quoting the case of Brett Osborn from Romford. In 2003, he stabbed a drug-crazed intruder who was threatening a pregnant woman in the house in which he found himself. It turned out that the stabs that Brett Osborn had inflicted killed that intruder, and he is now serving five years for manslaughter because, apparently, he failed to warn the intruder that he was armed and that he intended to strike. Was that reasonable force? I do not know.
The second case, perhaps less dramatic, is of Charlie Mayall, a 59-year-old ex-soldier living in my constituency, who in August 2004 was struck on the patio in his garden by an intruder with a piece of wood. Charlie retaliated, and in trying to defend himself he broke the intruder's jaw. He was arrested, and over the last six months he has appeared in court three times; he has been involved in countless police interviews; and he has suffered all the trauma, stress and lack of earnings that due process involves. Very recently, the case was dropped by the Crown Prosecution Service owing to lack of evidence.
What is fascinating is the other side of the coin, because not only is Charlie Mayall thoroughly confused by what is going on, and thoroughly put upon; the police believed the CPS advice that there was a good chance of the prosecution proceeding. Indeed, when guidelines were issued to the police just before Christmas they were reinforced in their belief. Then suddenly the case was dropped. Where does the definition of reasonable force lie? Clearly it is vague. The law is difficult to enforce. Charlie Mayall came away delighted. The police came away bemused by this law that simply does not make
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sense and in which the public have lost confidence. I suggest that a law in which there is no confidence must be changed.
My Bill consists of two simple amendments. The first would replace "reasonable force" with the idea of force that is not "grossly disproportionate". Those words are not mine—they already exist in civil law. They were designed by the Government to make sure that civil law started to work, and were enshrined in 2003. Currently, as my right hon. and learned Friend the Leader of the Opposition said the other day, we have two wholly different tests in the same area of law. The first is "grossly disproportionate" in civil law and the other is "reasonable force" in criminal law. Civil law was not working, so it was changed. Now, I suggest, criminal law needs to be brought into line with civil law so that the two tests make eminent sense and can be compared easily and comprehensibly.
Mr. Andrew Dismore (Hendon) (Lab): Does the hon. Gentleman accept that there is a difference between criminal and civil law, in that the standard of proof in civil law is the balance of probabilities, whereas in criminal law it is beyond all reasonable doubt? In looking at enforcing the law, one has to bear in mind the standard of proof that has to be applied. If one has a definition, like that in the hon. Gentleman's Bill, which is not referred to or inscribed in law in any way, that can create significant problems in trying to enforce the law.
Patrick Mercer: I am grateful to the hon. Gentleman for his intervention.
The fact remains that this is a question of public confidence. Public confidence in civil law clearly failed, so the law was changed. Public confidence in criminal law is failing, and the law needs changing. To my mind, that is extremely simple.
Miss Julie Kirkbride (Bromsgrove) (Con): The hon. Member for Hendon (Mr. Dismore) said that the criminal law uses a standard of proof beyond reasonable doubt, yet courts are being asked to assess whether some action is reasonable. It seems to me that the action must be clearly proved to have gone well beyond reasonable force if the test that he described is to apply.
Patrick Mercer: I am grateful to my hon. Friend for her clear and helpful intervention. Later in my speech I shall answer her point much more clearly than I can now.
I believe that use of the phrase "grossly disproportionate" raises the threshold and makes the matter clear to householders, shop owners, burglars, intruders and, indeed, juries who have to try to interpret the law. Let us be clear: the 12 good men and true of a jury need simple guidelines, but the present guidelines, revolving as they do around "reasonable force", are vague.
Donald Anderson (Swansea, East) (Lab): The hon. Gentleman talks about simple guidelines, but is it not a fact that, whichever formula is chosen, uncertainty at the edges is inevitable? He has done his homework, so he will know that very few cases have proceeded to trial. Can he give one example of a case that did proceed to trial that would not have done under his test?
Patrick Mercer:
Brett Osborn's.
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The definition of reasonable force has had to be clarified—that is clear from the issuing of a leaflet this week. If the law is a good law, if it is working, why is an A4 leaflet necessary to clarify it? Why do the Government need to indulge themselves in trying to explain that wholly obscure phrase? I wrote to the Crown Prosecution Service to discover its definition of reasonable force; I have yet to receive a coherent answer. We contacted the Home Office and several police stations to test them on what the phrase means. We asked whether keeping a baseball bat by the bed was reasonable. The reply from Home Office was,
and we were asked to refer our question to the Department for Constitutional Affairs—but that Department referred us back to the Home Office. A police constable in the Home Secretary's Norwich constituency thought that the baseball bat was reasonable, but another officer in Durham thought that it was
Clearly, if a leaflet is necessary, there is huge confusion through which we must try to force some beam of light, some kind of common sense.
Dr. Julian Lewis (New Forest, East) (Con): I, too, noted the issuing of the leaflet. One of the things it said that struck me was that one must not lay a trap for anyone. Let us suppose that a person has been consistently targeted by burglars. Does the rule mean that as long as that person goes to sleep, wakes up in time—before he is attacked—and then uses reasonable force on a burglar, it is all right, but if, because he has previously been targeted, he stays up at night and then uses reasonable force on a burglar, he can be convicted because he laid a trap?
Patrick Mercer: I simply do not know. The law does not make it clear. Despite the fact that a scrap of A4 paper has been issued—albeit only 100,000 copies—I cannot give a clear answer to my hon. Friend's question. Interestingly—
Mr. Dismore: Will the hon. Gentleman give way?
Mike Gapes (Ilford, South) (Lab/Co-op): Will the hon. Gentleman give way?
Madam Deputy Speaker: Order. The hon. Gentleman is not willing to give way at this moment.
Patrick Mercer: Thank you, Madam Deputy Speaker.
On Tuesday this week, Sir Ian Blair, the new Commissioner of Police of the Metropolis, appeared on the "Today" programme. Apparently, hard though it is to believe, he had not yet seen the famous leaflet when he said,
"I'm not sure that the wording does go far enough. I mean I'll, I'll wait and see. I haven't actually seen the leaflet yet but I did say on your programme"
"that I thought reasonableness was quite a difficult concept at four o'clock . . . in the morning in your kitchen. Whereas something as stark as gross disproportionality"—
At 12.30—presumably, in the intervening hours, he had a couple of phone calls or perhaps an interview at No. 10—Sir Ian said:
At 4.10, Scotland Yard made this statement:
"Sir Ian has seen the guidance and is happy it makes clear that only when very excessive or gratuitous force is used will someone be prosecuted".
The new Metropolitan Police Commissioner did not use the phrase "reasonable force" in any of those statements: either he talks about "gross disproportionality", or he uses the phrase that is used in the scrap of paper, "very excessive or gratuitous".
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