---

Mr. David Cameron (Witney) (Con) rose—

Tom Levitt (High Peak) (Lab) rose—

Mr. Mike Hancock (Portsmouth, South) (LD) rose—

Mr. Heath: I give way to my hon. Friend the Member for Portsmouth, South, then I shall not do so for a little while.

Mr. Hancock: My hon. Friend says that the Bill would not have made a difference in the Tony Martin case. Does he agree that it would make an awful lot of difference to those people who have been arrested and subsequently charged, and then had the case dropped but nevertheless had their lives destroyed by police action? The Bill would prevent that from happening.
 
4 Feb 2005 : Column 1088
 

Mr. Heath: My hon. Friend is right. That mischief needs to be addressed, but I am not convinced that the Bill would change the situation. Far more important is the guidance that is given to police officers in the execution of their duties and to prosecution authorities in cases that are brought forward.

Mr. Cameron: Will the hon. Gentleman give way?

Mr. Heath: I am still on the first section of my speech, and I should make progress.

The Government's guidance is more important than it has been given credit for, and I hope that we will have the opportunity to debate it further.

The difficulty with the law as it stands is that there is clearly a misunderstanding as to what is reasonable force. That misunderstanding lies not solely with the householder but with jurors, police and prosecution authorities. The latter two are the most problematic.

There is also the problem of what constitutes reasonable force in the circumstances—the test of the reasonable man. The Law Commission drew attention to that in its report of July 2003 on partial defences to murder, stating:

"We acknowledge that such a person, though genuinely acting in fear, might not always act 'reasonably' so as to attract the full defence of self-defence."

That acknowledges the fact that the householder whose home has been intruded upon and is in genuine fear for their own safety or that of their family may not act as a reasonable person who is devising a statute in this House or construing it in a court of law, because they are afraid and angry; they have a mixture of emotions that may cause them to act in a way that might appear unreasonable in the cold light of day but is entirely reasonable in the context of the circumstances in which they find themselves.

There is a further difficulty that applies in many of our constituencies. I represent a very rural area. In many parts of my constituency, someone who disturbs an intruder in their house will not, with the best will in the world, get a police response for some time. They are very frightened about that. My constituents often say to me, "If they come to me, sir, I will have a shotgun ready." I reply, "I should be very careful about the way you use that shotgun, but I understand your fear." People fear that they no longer have the protection of a police force. That applies particularly in rural areas, but also, I am sure, in many urban areas. It is perfectly reasonable for someone to be unreasonable in those circumstances because they are genuinely in fear of what will happen to them, and particularly to their loved ones. People in such circumstances sometimes act with a greater degree of force in protecting their loved ones than in protecting themselves; that is understandable.

Tom Levitt: The hon. Gentleman is making a very sensible speech and drawing attention to some of the Bill's practical difficulties. One that concerns me is that it applies only to trespassers. What about a situation, for example, in which a woman is defending herself against a rape by another member of her household? Under the Bill, she would be covered only by "reasonable force"—
 
4 Feb 2005 : Column 1089
 
she would not be allowed the same latitude in deciding how to respond to the attack as someone defending themselves against a burglar.

Mr. Heath: I am not a lawyer, so I will not go into that. My recollection of common law on defence is that it would cover that. Trespass of the person, which includes assault and sexual offences of that kind, gives latitude for defensive measures. However, the hon. Gentleman is right to make the point, which we debated in the context of the Domestic Violence, Crime and Victims Act 2004. We have to be very clear about what constitutes reasonable force in those areas as well. However, the hon. Gentleman is wrong to expect a private Member's Bill, which deals with a different subject, necessarily to apply in all circumstances.

The key point is the correlation between disproportionate and reasonable force, and whether "grossly disproportionate" has an effectively different meaning in law from what a court would hold to be unreasonable in the circumstances.

Mr. Cameron: Will the hon. Gentleman give way?

Mr. Heath: The hon. Gentleman has been persistent and he deserves to get in.

Mr. Cameron: Let me help the hon. Gentleman. He is arguing that "grossly disproportionate" will not really affect the way in which the courts and the police work. However, is he aware that one of the standard directions from judges to juries in the circumstances that we are considering under reasonable force is that the householder should use force

"no more than reasonably necessary to defend himself."?

Does not the hon. Gentleman understand that "grossly disproportionate" would mean that the guidance would have to be rewritten? That would be a real change.

Mr. Heath: I am not sure—I am willing to be persuaded—whether it would have any greater effect than the guidelines to the prosecuting authorities that we have already heard. We had a short debate earlier when we considered whether a baseball bat under the bed was disproportionate or reasonable. The answer is the context in which it was used. If it was used on a 10-year-old scrumping in the orchard, that would be an unreasonable use of a baseball bat. If it was used to defend oneself against an attacker with a knife in one's bedroom, that would constitute reasonable use. I do not believe that we can make easy constructions. All the definitions carry a great deal of difficulty.

David Davis: The hon. Gentleman is making a good speech that goes to the core of the issue: whether someone should be dragged before the courts and often end up being exonerated by the jury in an hour. I can cite examples of that if he wishes. We are considering whether gross disproportionality moves the margin in favour of the victim in the unique case where his home has been invaded while he is present. That is the change, which the right hon. Member for Birkenhead (Mr. Field) raised earlier. We are considering changing
 
4 Feb 2005 : Column 1090
 
the behaviour of the Crown Prosecution Service. It is precisely analogous to the Government's action in trying to prevent unnecessary law suits. They used the same word, with the intervention of the Attorney-General, if necessary, to prevent law suits. The Bill would prevent people from suffering the misery of going to court when they do not deserve to do so.

Mr. Heath: I agree with the intention that the right hon. Gentleman expressed in his last sentence. I am pleased that he mentioned the analogy with the Criminal Justice Act 2003. I was involved in considering the measure and we made it clear that we believed that it was extraordinary that a trespasser or burglar could bring a civil court action for damages, apart from in exceptional circumstances where somebody had acted disproportionately. People were rightly upset about the prospect of that. It was outrageous.

Tom Levitt: Will the hon. Gentleman give way?

Mr. Heath: No, I shall not give away again.

Earlier, the hon. Member for Hendon (Mr. Dismore) made a serious point, although it was slightly mocked at the time, about the fact that the Criminal Justice Act 2003 deals with civil actions. There is a difference because of the standard of proof that is required and because we are dealing with a prosecution that is brought by one individual against another rather than the state—that is where the lock of the Attorney-General comes in. It is not unreasonable—indeed, I strongly supported the view—that when a civil court action is brought, it should be clear that it is an exceptional circumstance, not anything that could fall within the sphere of reasonable behaviour. The phrase "grossly disproportionate" is relevant in that case.

If the right hon. Member for Haltemprice and Howden (David Davis) looks at the Criminal Justice Act 2003 again, it contains a further qualification that does not appear in the Bill. It provides that the defendant

"believed that the act was necessary to . . . defend himself or another person . . . protect or recover property . . . prevent the commission or continuation of an offence, or . . . apprehend, or secure the conviction, of the claimant after he had committed an offence".

There is a second lock that does not exist in the Bill, and it would be helpful if it included a tighter definition.

Although I understand the objective of the hon. Member for Newark, I am concerned about interpretation. I do not like legislation that is intended to send messages—I find it abhorrent because it normally sends perverse messages rather than what is intended. Law exists to provide for criminal convictions in the case of wrongdoing. We might be on safer ground if the hon. Gentleman further qualified the definition to make it clear that the Bill does not give a licence to shoot anybody who trespasses on one's property because that would be unreasonable and grossly disproportionate and that it does not encourage people to tangle with the burglar on their property in ways that might be to their huge disadvantage, given the disparity in the resources available to them.

I am not sure whether proposed new section (1B), which would require the intervention of the Attorney-General, is appropriate. The Director of Public Prosecutions is there
 
4 Feb 2005 : Column 1091
 
precisely for that purpose. It would be perfectly proper to provide that a prosecution should not be brought without the express agreement of the DPP, but I do not believe that it is a matter for the Attorney-General because we are considering the criminal prosecution authorities rather than an individual who may have been misguided in the advice that he received.

---