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Standing Committee Debates
Criminal Law (Amendment) (Householder Protection) Bill

Criminal Law (Amendment) (Householder Protection) Bill

Column Number: 1

Standing Committee C

The Committee consisted of the following Members:


Mr. Frank Cook

†Campbell, Mr. Ronnie (Blyth Valley) (Lab)
†Clark, Mrs. Helen (Peterborough) (Lab)
†Cohen, Harry (Leyton and Wanstead) (Lab)
Field, Mr. Frank (Birkenhead) (Lab)
†Goggins, Paul (Parliamentary Under-Secretary of State for the Home Department)
†Grayling, Chris (Epsom and Ewell) (Con)
Hancock, Mr. Mike (Portsmouth, South) (LD)
†Hermon, Lady (North Down) (UUP)
Hoey, Kate (Vauxhall) (Lab)
†Jones, Mr. Kevan (North Durham) (Lab)
†Mann, John (Bassetlaw) (Lab)
†McIsaac, Shona (Cleethorpes) (Lab)
†Mercer, Patrick (Newark) (Con)
†Mitchell, Mr. Andrew (Sutton Coldfield) (Con)
†Pound, Mr. Stephen (Ealing, North) (Lab)
†Swire, Mr. Hugo (East Devon) (Con)
Colin Lee, Committee Clerk
† attended the Committee

Column Number: 3

Wednesday 9 March 2005

[Mr. Frank Cook in the Chair]

Criminal Law (Amendment) (Householder Protection) Bill

2.30 pm

The Chairman: I remind the Committee that adequate notice should be given of amendments. As a general rule, I do not intend to call starred amendments.

Clause 1

Amendment of the Criminal Law Act 1967

Harry Cohen (Leyton and Wanstead) (Lab): I beg to move amendment No. 1, in clause 1, page 1, line 4, after ‘person’, insert

    ‘in a building or part of a building’.

The Chairman: With this it will be convenient to discuss the following amendments: No. 2, in clause 1, page 1, line 5, leave out

    ‘any building or part of a building’

    and insert

    ‘that building or part’.

No. 4, in clause 1, page 1, line 13, at end add—

    ‘(1C)   Subsection (1A) does not apply unless these conditions are met—

      (a)   the building, or part of the building, in question is a house;

      (b)   the person who uses the force is the householder.’.

No. 5, in clause 1, page 1, line 13, at end add—

    ‘(1D)   In this section “house” means any dwelling (including a flat, caravan or boat).’.

No. 6, in clause 1, page 1, line 13, at end add—

    ‘(1E)   In this section any reference to a house, or part of a house, includes a reference to any garden or other ground belonging to that house or that part.’.

No. 7, in clause 1, page 1, line 13, at end add—

    ‘(1F)   In this section “householder”, in relation to a house, means any person who occupies the house as his residence.’.

No. 8, in clause 1, page 1, line 13, at end add—

    ‘(1G)   For the purpose of this section it does not matter whether a person occupies a house as his only residence, his main residence, or otherwise as his residence, including occupation as a holiday or other temporary residence.’.

No. 9, in clause 1, page 1, line 13, at end add—

    ‘(1H)   For the purpose of this section a person is not to be regarded as occupying a house as his residence if that occupation is as a trespasser.’.

Harry Cohen: May I say what a pleasure it is, Mr. Cook, to see you in the Chair? I know that all members of the Committee will get a good and fair hearing as a result of you chairing our proceedings.

Amendment Nos. 1 and 2 are mine. Amendments Nos. 4 to 9 were tabled by my hon. Friend the Member for Ealing, North (Mr. Pound), and I am sure that he
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will want to speak to his amendments in due course. They are good, well constructed amendments, and I shall be supporting them.

We had a good discussion on Second Reading, and I made clear my view, as did a number of my colleagues, some of whom are members of the Committee, that, for a number of reasons, the Bill is flawed. I shall not repeat what was said on Second Reading, but the amendments give us the chance to consider in detail some of the problems and flaws, and to see whether they can be ironed out. To an extent, the amendments are probing. They are intended to get answers from the hon. Member for Newark (Patrick Mercer), so that we can see where he stands.

The Bill’s title is typically bureaucratic, but I think that it is mistitled. As we can see from some of the amendments tabled by my hon. Friend the Member for Ealing, North, the Bill is not about the protection only of householders. Others could be covered by its provisions. I am sorry if some of the Bill’s supporters think that I am being a little cynical, but those who have to consider a Bill in Committee give the legislation a title of their own if its title does not quite fit in their mind. The title of the Criminal Law (Amendment) (Householder Protection) Bill does not quite stick in my mind, so I have been considering it under the title of “Kill a Burglar” Bill, because at its worst that is what it will authorise. I apologise for being a little cynical, but that is how I see it.

We are coming up to an election and the hon. Member for Newark will presumably be putting the Bill in his personal manifesto for his electorate—for him the Bill is, quite rightly, a good election campaigning point. I offer a word of advice. I do not think that it will go down particularly well if he says, “I promoted in Parliament my Criminal Law (Amendment) (Householder Protection) Bill.” Calling it a “Householder Protection” Bill would not be bad, but the rest is rather bureaucratic. It would be better still, in my view, if he said in his election manifesto that he had promoted his “Kill a Burglar” Bill. His electorate would at least know where he was coming from and what it was all about.

Mr. Stephen Pound (Ealing, North) (Lab): I am sure that most members of the Committee do not impute any such base or venal motives to the hon. and gallant Member for Newark, although I can understand my hon. Friend wishing to disaggregate the title. However, as my hon. Friend ponders over the title, he might consider the fact that it should be called not the “Kill a Burglar” Bill but the “kill absolutely anyone, including a wandering scout, the kid from next door trying to get his football back, or those who wander into someone else’s garden” Bill—but that is another title that does not trip off the tongue easily.

Harry Cohen: The point is well made. I am sure that we shall return to the issue of who has rights under the Bill.

Lady Hermon (North Down) (UUP): May I tell the hon. Gentleman ever so gently that, although he might poke fun, this is a serious issue? As someone who represents a Northern Ireland constituency, I can tell
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him that burglary and the crimes that occur when someone burgles a home are uppermost in people’s minds following the cessation of paramilitary violence in Northern Ireland.

Harry Cohen: Let me say that there was no venal motive behind my suggestion. At the end of the day, however, the issue of burglary is one of the headline points about the Bill, and I was drawing attention to it. The hon. Lady makes a good point, and I do not want to poke fun at the issue of burglary or at the victims of burglary. It is an extremely serious issue, which is why, on Second Reading, I made some other suggestions about how to deal with burglars. It is a serious problem, but the question is how we go about dealing with it. As I want to make clear, that is best done through the police and the authorities.

Mr. Andrew Mitchell (Sutton Coldfield) (Con): The hon. Gentleman offered my hon. Friend the Member for Newark some advice, but let me put his mind at rest. My hon. Friend does not require any advice on this issue. It does not matter how the Bill’s long title is changed. Everyone in the country knows precisely what my hon. Friend is trying to do in the Bill. He is trying to give householders rights of protection, because those rights are not clear at the moment. Whether or not he puts that in his manifesto, he will rightly get the credit for standing up for something, which the hon. Member for Ealing, North manifestly failed to do on the “Today”programme last year.

The Chairman: Order. I have been lenient for the first seven minutes in allowing comments that were more properly raised on Second Reading. I remind the Committee that we are discussing specific amendments and I would appreciate it if hon. Members concentrated on the contents of those amendments.

Harry Cohen: I said that I did not want to repeat Second Reading points. In a way, I was just making introductory remarks. However, perhaps I can return to the comment made by the hon. Member for Sutton Coldfield (Mr. Mitchell)? As I said on Second Reading, it is a worthy thing for the hon. Member for Newark to have introduced his Bill and for the House to consider it. He said that he had been successful in getting his own party to adopt it as party policy and in getting some movement from the Government. We have had a thorough review of the law, and, as a result, guidance has been issued by the Crown Prosecution Service and the police. The hon. Gentleman can claim credit for that. It is the detail of the Bill that gives rise to problems, however, and I deal with that in the amendment. This is a flawed Bill.

The Government have made it clear that the law is already on the side of the householder, who can use reasonable force. The benefit of the doubt will be with the householder, not the burglar, when the police and the CPS consider the matter. I oppose the death penalty, so I do not like the provision in the Bill that would give people the right to use excessive force. That has to be looked at carefully. As the hon. Member for
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Newark himself said on Second Reading, people cannot use grossly disproportionate force, and that is the subject of later amendments. I do not believe in the death penalty even for burglars, who, as has been said, are pretty awful, but they are not the worst criminals. We can all think of others who are worse, such as cold calculating murderers. I do believe in policing. The police need to do their job, which is where the drive needs to come from.

Nor do I believe in vigilantism, which is not a good way in which to proceed. The “Death Wish” films with Charles Bronson are a great example of that. They show what a fad this is. They were about street crime, which the Bill does not cover. The latest fad is a “Death Wish” type of vigilantism in the home against burglars. It is not a good policy, because only the strongest person, such as a big strong man, can take on a burglar in their own home. That is not an option for a vulnerable woman or an elderly and frail person.

That takes me right to my amendment. Although I am opposed to vigilantism, I am not against self-defence. We should consider self-defence that occurs on the street as well as in the home. The Bill makes a false distinction between the two, as my amendment highlights. Under the Bill, for example, the test for a victim who suffered rape in the street or in a park would be different from that for a victim who suffered it in their own home. That is not right. The rapist would be a trespasser in the home, but not outside it.

I have argued that the claim of self-defence should apply for women who kill a violent partner.

Lady Hermon: I have listened carefully to the hon. Gentleman. Will he explain why he wants

    “in a building or part of a building”

to be inserted after the word “person”? Surely he is confining the import of the Bill to a building rather than expanding it to include the street.

Harry Cohen: I do want to insert those words and, although you, Mr. Cook, are giving me anxious looks, I want to put the matter into context. The crucial part of my amendment is the distinction between vigilantism, with which I do not agree, and self-defence, with which I do agree. Self-defence is problematic because it must be genuine, but it should not be a different matter in the street from in the home. Nor should it be an excuse for someone to take the law into their own hands, which is a danger under the Bill.

Under the Bill, the householder who does the killing can be anywhere. He can be inside the building or outside it. He can be on the roof or in the street, within the boundary of the premises or outside it. He can be on the outside shooting in. The burglar must be inside the building or trying to get out of it. That is a ridiculous distinction, and is full of problems. Could not someone trying to get in be a window cleaner? Could someone say in their defence, “Well, I thought he was trying to get in, but he turned out to be a window cleaner,” or, “I shook his ladder and he fell
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off,” or, “He had an accident and got killed?” Their excuse would be in this provision, which is unacceptable.

2.45 pm

Lady Hermon: Is it the hon. Gentleman’s contention that if I, as a householder, see a burglar going into my home, I can do nothing until I run round, open the back or front door, get into the house and deal with him in my home? Is that what he wants to persuade us of by his amendment?

Harry Cohen: The law already provides the opportunity, which is not confined to householders or to those within the boundaries of the house—this was the point of my original remarks when I tried to set the scene—to use reasonable force in self-defence. As I said, that has been strengthened by the Government’s guidance. Clearly, therefore, doing nothing in those circumstances is not the issue. However, the question arises—and this opens the matter up seriously—of someone shooting from outside, albeit that it might be the householder. As we have been reminded by the amendments tabled by my hon. Friend the Member for Ealing, North, it might not be the householder but a security guard or someone similar. It is a problem.

Mrs. Helen Clark (Peterborough) (Lab): My hon. Friend has used a phrase that we have heard a lot in the House and in the media in relation to the Bill—the phrase “genuine self-defence”. Will he provide the Committee with a few examples to define that?

Harry Cohen: That is a good point, and there are probably people of a more legal turn of mind than mine and of more legal expertise who could set out that definition better than I can. However, we all know about and have come across relevant cases.

I have come across cases of battered women who have killed their violent partners and I have argued in the House that that was self-defence and that they should not have been given a mandatory life sentence. I have been involved in cases where people said that they were the victims of racial attacks and had struck back with force in self-defence. That has been a contentious issue and it is right that it should be a legal defence, even in the event of the person who was trying to attack being killed. There should still be a defence, as for the householder in the present instance.

However, there are risks to the approach It tends to make carrying a knife or a gun against the fear of an attack almost acceptable; I do not think that we want that. The Government have legislated against guns. What should be specified is genuine self-defence in the circumstances.

I want to return to the point of the amendment: the question of the householder outside the building shooting in and the burglar being inside, or trying to get inside, the building. I gave the example of the window cleaner. What about someone who had lost his key and was trying to get in through the window or over the fence? Someone else associated with the
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house, who would probably be another householder who perhaps did not recognise him—or who might not even be a householder, if the supposition of my hon. Friend the Member for Ealing, North is right—could assault the individual who was trying to get in. That would not be reasonable.

Perhaps a teenage son or daughter who was a member of the household might give their friend a key, while they went down the road to the shops to get a few beers, or a few sweets. They might say, “Let yourself into my house. Here’s the key. Wait for me there.” If their friend did so, the parent might come back before the return of the son or daughter of the household, see someone unknown to them in their home and, taken by surprise, assault them. I do not think that that would be a good reason, either. The question of attempts to get into the building is difficult and problematic.

Under my amendment, both the burglar and the householder would have to be inside the building or part of the building. The amendment tabled by my hon. Friend the Member for Ealing, North is more explicit, but I think that part of a building would probably include a garden or a garden shed or outbuildings such as a garage. That, incidentally, raises another interesting point—the Bill presumably gives the householder the right to attack a burglar who is in a garage, not for burglary but for auto theft or something akin to it. That, too, shows how, because of the range of circumstances, it is not easy to define what the Bill is about.

The worst aspect is that the distinction that is being made is a false one. The householder may be outside and the burglar may be inside, but what about a burglar running away with property? When he is off the premises, is it all right to attack him? That was an aspect of the Tony Martin defence.

Patrick Mercer (Newark) (Con): Has the hon. Gentleman studied the guidance that was given by the Crown Prosecution Service when the Bill was published a few weeks ago?

Harry Cohen: I have, indeed, and I referred to it on Second Reading. It is included in my speech somewhere, but I cannot find it now—I think that is because it relates to the next amendment on which I am due to speak. I have studied it and it certainly means that the CPS and police will consider cases sympathetically to the householder; there will be swift decisions and they will be favourable to the householder and not the burglar.

Patrick Mercer: If the hon. Gentleman has studied the guidance, he will have seen that even under the present law it is perfectly acceptable to try to apprehend a burglar who is off one’s property and making off with property that has been taken from the house, and that a degree of force may already be used. I fail to understand why the hon. Gentleman is questioning my Bill on those grounds.

Harry Cohen: That is the point about the law that already exists, and reasonable force. The Bill is adding a new category, under which householders will have
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more powers in the relevant circumstances—new and differential powers that they would not have in the street.

John Mann (Bassetlaw) (Lab): Is not that the point of the Bill—that additional powers are required? Its weakness, if there is a weakness in it, is that it is too modest in its reach; there should be the equivalent of a drainpipe clause, to give the householder protection against attempts to claim compensation by, for example, someone who has shinned up a damaged drainpipe and fallen off, breaking a leg or a back. That is the Bill’s only potential weakness.

Harry Cohen: I do not agree with my hon. Friend on the general point that he makes, but I do agree about the compensation culture. In the circumstances that he describes, compensation should not be given.

The Chairman: I hesitate to allow debate to continue down that drainpipe. Perhaps hon. Members can restrict their comments and logic to the amendments under consideration.

Harry Cohen: I ask the Committee to consider what might happen under the Bill if someone comes to the front door whom the householder believes to be a burglar or whatever, or with whom the householder has had some run-in in the past. Perhaps the person at the front door has come to apologise, or perhaps he has come to continue the feud, and the fracas or assault takes place at the front door without the person actually crossing the threshold. Presumably the householder in those circumstances would have a defence under the Bill. All they would have to say was, “Well, I thought he was going to try to force his way in.” That is problematic, because a bailiff has a right to force his way in and might do so.

Can a householder who assaults a bailiff say in his defence, “I thought he was a burglar. I thought he was going to commit trespass and take my possessions”? In my time as an MP, I have seen many cases in which constituents have been unfairly treated because of bills that have ended up with a visit from the bailiff. They could have said, “I was defending my property from being unfairly taken from me.” The provision could make the life of a bailiff much more dangerous.

The amendment seeks to establish that the trespasser and the householder are at least both on the premises when the assault or self-defence takes place. It is up to the hon. Member for Newark and his supporters to make their case for there being such exceptions under the Bill. Why can the householder shoot or assault the burglar from anywhere off the premises, but the burglar must be on the premises? That is why I made the point about the burglar running away. The Bill arises from the whole Tony Martin case. I know that there was some sympathy for him, but the Bill does not really address the matter.

Mr. Pound: My hon. Friend mentions the Tony Martin case, which it is almost impossible for us not to mention at some stage. I note that the future of the BBC is being discussed in the Chamber. Does my hon.
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Friend agree that all decent people will have noticed with a sense of horror that the BBC has paid Brendan Fearon, the surviving burglar in that case, £4,500?

The Chairman: Order. This is all fascinating stuff, but it is not entirely pertinent to the task in hand. I appeal to the Committee: for heaven’s sake, let us focus on the points at issue, or we will be all over the countryside next and into the western isles.

Harry Cohen: I shall not go down that route, other than to say that I hear the opinion expressed by my hon. Friend the Member for Ealing, North.

Patrick Mercer: As the Member of Parliament who has since been at the eye of the Tony Martin case, I should point out that only two of my constituents were involved. One was shot dead, and the other was shot and wounded. May I make it quite clear, as I have throughout our consideration of this measure, that the Bill would make no exception for Mr. Tony Martin? He would still go to prison. Speaking purely personally, and as Mr. Brendan Fearon’s Member of Parliament, I have absolutely no sympathy for Mr. Tony Martin.

Harry Cohen: I understand that, and I appreciate the hon. Gentleman’s statement. There is no doubt, however, that this drive for a change in the law arises from the Tony Martin case and the sympathy expressed by the then Leader of the Opposition and Opposition Front-Bench Members for at least certain aspects of his case. The hon. Gentleman is right, however, that his Bill does not fully address the issue raised by that case. My amendment draws to the attention of the Committee the fact that the issue is partly whether the burglar and the householder are on or off the premises, and whether we are talking about a house or other building.

Tony Martin waited to entrap the burglars; he had a shotgun and meant to kill them. That was excessive force; even under the Bill, it would probably be seen as disproportionate force, although he would have a better chance of getting off. My understanding is that he shot at Brendan Fearon when he was running off the premises, and that is very pertinent to the amendment: Brendan Fearon was off the premises when Tony Martin shot him.

3 pm

Patrick Mercer: That is irrelevant.

Harry Cohen: No, it is not, because the hon. Gentleman’s Bill, as it is currently worded, would not cover that case. Interestingly, I suspect that most of the Bill’s supporters, such as those on the “Today” programme, wanted a Bill that gave householders the power to tackle or assault a burglar in self-defence, and, if they could not do so on the premises, because the burglar had run off, perhaps with their property, to tackle him on the street as well. That relates directly to the amendment.

The Chairman: Order. I have deep respect for the logic that the hon. Gentleman is applying to the points under discussion, but his arguments are becoming
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circuitous and repetitive. If he can address himself to the specifics of the amendment, we can then perhaps open it to general debate.

Harry Cohen: The point was directly relevant to the amendment, but I take the point that you consider it repetitive, Mr. Cook. I shall try not to make it again. I was just saying that it was directly relevant to the amendment.

To move on, why does the Bill apply just to trespass? Why does it not, for example, apply to a rapist in the street, as opposed to one who is committing trespass? Why does it not apply to the perpetrators of domestic violence, perhaps against a spouse or a child? They are committing the same or a similar crime of assault in the home, but they would not be deemed to be trespassers, so the victim would not have the right of self-defence proposed in the Bill. Why does property have a higher priority than an individual? That is quite offensive. I come from a long line of socialists, and I think that the person is more important than property; at the very least, they should be equal.

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