My hon. Friend is making an important point. The hon. Member for Newark (Patrick Mercer) would have a police constable attending the scene of an incident in which a death or serious injury had occurred, and deciding whether the action had been grossly disproportionate. That is wholly wrong. In those circumstances, the police constable's first duty must be to secure evidence, making sure that none is removed, and ensure that anyone who may be a witness is alerted to that fact, so that if an investigation is needed later, it can take place. It is then for the CPS to decide whether there is sufficient evidence of grossly disproportionate force being used to proceed with a prosecution.
Mr. Pound: My hon. Friend the Member for High Peak (Tom Levitt), which I believe is usually known as the most beautiful constituency in the United Kingdom, particularly when my hon. Friend is speaking, makes an extremely good point.
I admit, with some pride, that I am not a lawyer. Although another profession claims to be the oldest, I rather suspect that on the very first day in Pleistocene times, when human beings tried to order their affairs, somebody came up with an example of why a particular law would not work. If we are talking about individual cases, I must point out that for every Kenneth Noye, there is a Robin Baker-White. My hon. Friend's point is absolutely right. Let us not forget that the pump-action shotgun that Tony Martin used to kill 16-year-old Fred Barras was an illegally held weapon. Robin Baker-White's shotguns were entirely legitimately held. But how do we know that? We know that because the police investigated; the CPS did not prosecute; Robin Baker-White was exonerated. Tony Martin was prosecuted.
Mr. Hendrick : I concur with the point that my hon. Friend just made, but will he answer a question? If the Bill made it into statute, and if householders were given carte blanche to let any burglar have both barrels or give him a good hiding with a baseball bat, would not more burglars and intruders be armed, as we see in some states in the United States? That would result in high levels of violence and more deaths than the relatively small number mentioned by the hon. Member for Newark (Patrick Mercer).
Mr. Pound: I am grateful for that intervention, but I was made a little nervous by the apparent relish with which my hon. Friend seemed to regard the prospect of good hidings with baseball bats. He has put his finger on one of the crucial points in the whole discussion.
The United States performs many useful functions and services. One of the best of those is to provide us with examples and case law. Among its different states there is different legislation. If a Dodge City, Tombstone, vigilante-type law applied in one state but not in another, and in the first state there were no burglarscertainly no live onesand in state B burglary was rampant, we could say, with some justice, "Make my day, punk. I've got a Magnum under the pillow," or perhaps, in the Preston parlance, a baseball bat. In reality that is not the case. In some states, such as Alabama and Georgia, where one can carry a concealed
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weapon about one's person, they have just as much, if not more, assault and burglary as in states such as New York, where one cannot carry a concealed weapon.
The hon. and gallant Member for Newark spoke of his discussions with police officers in Nottinghamshire. Every police officer to whom I have spoken said that absolutely the last thing they want is an arms race in Acacia avenue. They do not want more and more weapons being matched by bigger and bigger weapons. They do not want Granny Smith to have a shotgun and the scrote to have a Kalashnikov. My hon. Friend the Member for Preston (Mr. Hendrick) makes a very good point.
Mr. Hancock: In a typically entertaining speech, the hon. Gentleman is trying to cloud the issue, divert the argument and bring up a number of red herrings. He implies that someone today has suggested, although the hon. Member for Newark (Patrick Mercer) did not, nor has anyone else within my hearing, that any of the laws relating to a person's death in any circumstancesif a person is killed as a result of someone defending their homewill be changed by the Bill. If the hon. Gentleman has heard or read something that states otherwise, will he explain it to the House? If he has not, will he stop using that red herring?
Mr. Pound: I have always respected the hon. Gentleman, whichever political party he is in at the time, but I have to say that he is being a little audacious. The hon. Member for Newark is proposing precisely that
Mr. Cash: In his interesting dissertation on the American position, the hon. Gentlemandeliberately or otherwisemoved the argument to the type of gun rather than to what is going on in the room when the burglar enters. Is he aware of the Oklahoma test? In a nutshell, it states that if a person has any reason to be concerned that they will be assaulted, they may take such action as they think fitin other words, they can use all necessary force. Does he support that position? On balance, I have a lot of sympathy with it, even though I totally support my hon. Friend the Member for Newark.
The hon. Gentleman brings his fine forensic brain and his wide knowledge to bear on the subject. I believe that the Oklahoma test was struck down by the state legislature, although it was reintroduced in slightly different form, so the general point is relevant.
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I do not see the difference between the Oklahoma test and what Kenneth Macdonald, director of the CPS, meant when he spoke of the presumption being on the side of the victim. Who, in the peace and calm of Lincoln's Inn, can look at a piece of law and say, "This should apply," or, "That should not apply," in the case of an attack at 4 o'clock in the morning? The Oklahoma test arose from specific circumstances in a moment of extremis. We recognise that, which is why the Government, the CPS and ACPO all say that the law is on the side of the victim, not on the side of the burglar. Beyond that, however, we cannot say what a person should do if he is awoken by an intruder at 4 o'clock in the morning. Rationality often disappears with consciousnessthat is, when one falls asleep. How can a person be rational when he is awoken at 4 o'clock in the morning?
Mr. Cash: I have a lot of respect for the hon. Gentleman's comments on many subjects and I accept what he said on the "Today" programme in respect of the Bill, but the question is whether the Government seriously suppose that their guidelines could somehow be handed to the burglar, or that what they contain could be in the mind of either of the people who were facing each another at that moment. The real problem is not what is going on in Lincoln's Inn that matters, but what is going on in that room. That is why the Bill is so important and why it will, no doubt, be discussed further in Committee.
Mr. Pound: I say with some reluctance that the hon. Gentleman makes an excellent point and I agree with most of it. The question is whether a burglar who is likely to commit a serious assault or attack is acting rationally. Do burglars stop outside the house that they intend to burgle and say to themselves, "I shall consult the law to see exactly where I standoh good heavens, section 27B of the 1967 Act prohibits me from doing this. I'd better find some other country that will." The hon. Gentleman is right: they do not behave in that way. That is why we use words such as "gross" and "reasonable"we have to legislate for the broad spectrum of human activity and human response. People do not act roboticallyoften, they do not act rationally or logicallyso the hon. Member for Stone is absolutely right, but does that make a difference?
Before I come to point made by my hon. Friend the Member for High Peak, the real point was touched on by the hon. Member for Newark when he talked about signals. Although this proposition may be attractive to many of the lawyers and soi-disant lawyers in the House, a lot of the debate is not about nit-picking at the minutiae of the law, but about how the law, how legislation and how Parliament appear to the people of this country.
One thing that, surely to God, we can all agree on is that we want not just the householder, but the innocent citizen to feel not just safe, but that the law is on their side. The inevitable corollary of that is that we want the person in the balaclava mask or carrying the shotgun, as we heard in an earlier case, to feel that not just the householder, the shopkeeper and the local community, but the full weight and majesty of the law is against them. That is what we want. We all agree on that.
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We have two propositions before us, one of which is that we use the existing law, stick with it, work with the police, make it stronger, enforce it harder and perhaps follow the confiscatory suggestions of my hon. Friend the Member for Leyton and Wanstead (Harry Cohen). The other proposition is that we somehow think that we can solve the problem with a two-clause Bill.