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Mr. Dismore: There are other reasons for viewing criminal law and civil law differently. First, civil cases are tried separately by a judge alone rather than a jury. More complex legal questions are more easily tackled in those circumstances. Secondly, the purpose of civil law is to allow an individual to bring a claim, on advice from private lawyers, who, through a conditional fee arrangement, may have an interest in the case. That might act as a deterrent to taking on the case. Criminal proceedings are brought by the state prosecution authoritiesa very different set of circumstances.
We need to be clear in the guidance that we give the police and the prosecuting authorities. I agree with the hon. Member for Newark that it is abhorrent when someone who has acted in good faith and properly to protect themselves, their loved ones and their property is subsequently harassed by police investigation and potential prosecution. That applies far more widely than to the few cases that come to court. I am not yet convinced that that is a difficulty with the formulation of current law. I believe that it is a difficulty with the interpretation of the law by the investigating authorities.
I would not be happy if a person lay dead on somebody's property and the police did not conduct a proper investigation of the circumstances. I do not believe that anyone would argue that that should happen. I am not convinced whether the definition in the Bill is more robust in providing a framework than existing law. To some extent, the Law Commission shares that view. I suggest that the hon. Member for Newark and I might learn from the Law Commission's comments on that.
The hon. Gentleman has raised an important issue and the Government have reacted to it appropriately. The guidelines will require closer examination, and might still be deficient in some areas. However, the most important message that we must give is that people whose homes are broken into have a right to protect themselves and their property. They have a real fear that the police are not providing the support that they need, which is a concern for all of us. We must redouble our efforts to provide that protection. Whatever happens, the law must be as clear as possible. At the end of the day, it will be for the jury to determine what is reasonable and proportionate. That will be a matter for the courts to determine, whichever definition we use.
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Harry Cohen (Leyton and Wanstead) (Lab): I congratulate the hon. Member for Newark (Patrick Mercer) on his powerful and entertaining speech. I particularly liked his reference to the Prime Minister being like the character in "Little Britain" who says, "Yeah but no but yeah but no." Actually, that reminded me of the Conservatives' position on the war. Yes, they voted for the war. No, they did not like the consequences. Yes, they would still have voted for it despite the consequences. No, they do not want to be tarnished by it.
"the individual should always be able to defend himself, his family and his property, as long as he only uses force that is both reasonable and necessary."[Official Report, 14 December 1993, Vol. 234, c. 533W.]
Harry Cohen: My hon. Friend makes a good point, but I should not have given way so early. I had not even finished congratulating the hon. Member for Newark on coming first in the ballot. I have never even got into the top 20 in 21 years of entering the ballot, so that is an achievement in its own right. His Bill has had a response from his party, which has adopted it as party policy. Indeed, many Conservative Members are here today to cheer him on.
The hon. Gentleman has also had a response from the Government, in that there has been a thorough review and clarification of the law. A succinct leaflet has been issued, and clear statements have been made by the Crown Prosecution Service and the police. The leaflet offers guidance to householders, and the statements from the police have made it clear that people are unlikely to be prosecuted provided that they have acted "honestly and instinctively". They may use a weapon, if one comes to hand, but they may not use
Provisions relating to reasonable force already apply, as the leaflet shows, and I do not think that there is any need to change the law. It is already on the side of the householder. Anthony Scrivener, who was Tony Martin's barrister, said in the Eastern Daily Press on 14 December last year:
Mr. Roger Gale (North Thanet) (Con): The hon. Gentleman has just said that the leaflet refers to reasonable force. No. The law refers to reasonable force. The leaflet refers to "excessive and gratuitous" force. That is not enshrined in law.
Patrick Mercer: If the phrase "reasonable force" is adequate, why is it not in the leaflet? Why is another phrase used, which seems to me to set the threshold higher? Why was that phrase used, and why did the Commissioner of the Metropolitan Police continue to refer to it?
"You are not expected to make fine judgments over the level of force you use in the heat of the moment. So long as you only do what you honestly and instinctively believe is necessary in the heat of the moment, that would be the strongest evidence of you acting lawfully and in self-defence. This is still the case if you use something to hand as a weapon."
"If you have acted in reasonable self-defence, as described above, and the intruder dies, you will still have acted lawfully. Indeed, there are several such cases where the householder has not been prosecuted. However, if, for example . . . having knocked someone unconscious, you then decided to further hurt or kill them to punish them; or . . . you knew of an intended intruder and set a trap to hurt or kill them rather than involve the police . . . you would be acting with very excessive and gratuitous force and could be prosecuted."
Chris Grayling: Perhaps the hon. Gentleman could enlighten the House. When a court takes a decision on a particular case, should it use the exact words of the law as the basis on which to make its judgment, or should it use the guidance leaflet?
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