Criminal Law (Amendment) (Householder Protection) Bill |
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Lady Hermon: Let me just pick up on that point. The hon. Gentleman has asked a rhetorical question: why is property more important than the person? However, that is not the issue. Does he accept that a special sanctity applies to one’s home? Does he agree with the Home Secretary—his Home Secretary—who said:
Does the hon. Gentleman agree with that or not? Harry Cohen: I do, and I have made speeches in the House saying that a person’s home is his castle. That is why I introduced my Racial Harassment Bill to ensure that people did not have to suffer harassment in their own homes. Indeed, that is why the Government have introduced their guidance and tipped the balance firmly in favour of the householder, as opposed to the burglar. I do not think, therefore, that the hon. Lady’s criticism of me is fair. Chris Grayling (Epsom and Ewell) (Con): I have been listening to the hon. Gentleman for half an hour and I have completely forgotten the point that he was originally trying to make. Could he possibly explain the purpose of the amendment in a few sentences and then sit down and let the rest of the Committee consider his point? Harry Cohen: I will do that again, but I fear that, having done it three or four times, I will be accused of repetitiveness. Let me just spell out my point again. Under the Bill as it is currently worded, the householder can be anywhere, including outside the premises shooting in, while the burglar has to be in the building and cannot be running away outside the premises. I am saying—these are the few words that the hon. Gentleman wants—that that is incongruous. It is not the right way to deal with the situation. It is an example of how the Bill’s whole approach is wrong. As I was saying, assaults in the street are just as important as assaults in the home, and the rights of the individual
I know that we all want to debate that point, but I should like to put a few examples to the Committee. I have jotted them down, and although some may be deemed to be relatively small beer, I should like to make them. What about a mentally ill person, for example? Mr. Mitchell: I have listened more carefully than the hon. Gentleman deserves to what he has said so far. He is clearly going on at great length and injecting a frivolous tone into what is a matter of great concern to our constituents. Let me just comfort him with the point that Her Majesty’s Opposition will ensure that his constituents see the Hansard report of what he is saying so that they can judge whether he is bringing to the matter the seriousness that it deserves. Furthermore, every point that the hon. Gentleman has made so far was answered on Second Reading by my hon. Friend the Member for Newark, whose excellent speech he undoubtedly heard. Harry Cohen: I heard the hon. Gentleman’s speech, but I do not think that he answered the particular points relating to the amendment. Otherwise, the amendment would not be on the amendment paper. Indeed, its purpose is to make him explain why there is the distinction I described. I am happy for the Hansard from Second Reading and this debate to go out to my constituents, and to say that I strongly support the Government’s guidance, which gives much stronger weighting to householders than burglars in how the police and Crown Prosecution Service deal with such a situation. On Second Reading, I put forward proposals to have even stronger measures against multiple burglars, and I am also happy for that to be on record. I shall give my examples. A mentally ill person coming to the door— The Chairman: Order. I would be remiss in my duty if I were to permit repetition of examples. I am happy to hear examples that illustrate the difficulties that the Committee has faced, but I hope that these are new examples and not repeats of ones given previously. Harry Cohen: There is no repeat. I jotted the examples down in the lunch break. I will not give them all to the Committee, but let me give just a couple. One example happened to me a long time ago. When my step-son was in his teens, an angry man came to the door and demanded to be let in, saying that he had a shotgun, because my son was going out with his daughter and he was very upset about it. The first route to take was not to let him in—especially as he had a shotgun—and then to phone the police; it was not for me to go out and start a fight with him. I have not got a gun or some other weapon, but if I had, it would not have been right for me to get it, challenge him and have
Mr. Mitchell: On a point of order, Mr. Cook. I understand your injunction that you cannot allow repetition, but can you tell the Committee whether there comes a point when a contribution is so otiose and low-grade that you feel that you have to bring it to a close? The Chairman: That is not a point of order for the Chair. Harry Cohen: We do not have much of an Opposition at the moment, but we would not have much of an Opposition in terms of what they said if decisions were made based on what was low-grade. The Chairman: Order. I have ruled on the point of order. Can we now continue with the amendment? Harry Cohen: Let me give another example, then. What about a paedophile who has been released and is in his own home when vigilantes who want to assault him knock on his door to try to get into his house, where they would be trespassers? Presumably that man would have the right under this measure to defend his property and start shooting at everybody. He would have cause to have fear of assault and of being killed; there have been cases of paedophiles being killed by vigilantes. Is the best solution not that they have this sort of law available to them, but that they can go to the police and get things sorted out in that way? What about youths who pick on an individual and stone his home? There have been a number of such cases. The youths are not trespassers, as they are throwing stones from outside the premises. That individual in his own home has the same right to protection as any other householder. There is no distinction between someone coming on to the premises and someone throwing stones at it. I am aware that others want to speak and although I have several other examples I shall not give them as I want to hear what the hon. Member for Newark has to say in response to the debate. I want to know why the clause is drafted as it is, why he favours vigilantism over policing, and why an offence in the street is not punished in the same way as a similar offence in the house, creating an anomalous situation. The Bill as drafted, especially the clause, is not fully thought through; it is appropriate to explore it in depth and Standing Committee is the place to do so. Despite the bad feeling generated by Conservative Members, I have no regrets at raising the issue and probing it, because I want the answers. We are not helped by having flawed and inadequate legislation on the statute book, certainly not when the Government have already produced excellence guidance, which is a better way to help people. Mr. Pound: I rise to speak to amendments Nos. 4 to 9. Without wishing to embarrass you, Mr. Cook, I add my gratitude to that of my hon. Friend the Member for Leyton and Wanstead (Harry Cohen) for the pleasure of serving under your chairmanship. I was on the
It is important to put on record two matters that relate directly to my amendments and those tabled by my hon. Friend. First, I repeat a point that was touched on earlier: the hon. and gallant Member for Newark has brought this business to the House in the best possible spirit and for the best motives. I impute to him none of the motives that have been mentioned outside the House; he has acted correctly and properly and recognised a deep concern that has spread throughout the land, a point that the hon. Member for North Down (Lady Hermon) mentioned, too. There is no doubt that the people of this country are concerned and worried, and I respect and admire the hon. and gallant Gentleman for addressing the issue. I am extremely grateful for the assistance that he has given me in our discussions since Second Reading and for the assistance that Heather Millican, of his staff, has given me in replying to my questions. Secondly, before I go on to the detail, I want to reiterate the seriousness of the issue and the fact that concern exists. We are discussing the amendments simply because they are designed to make the Bill better. The objective is not to destroy it, because to do so would be, in the words of the hon. Member for Sutton Coldfield, otiose. There is a real concern, and my amendments are designed not to destroy, but to enhance. 3.15 pmI understand the motives of the hon. and gallant Gentleman in presenting a Bill of this size—a bijou Bill. However, I think that in this case he has fallen between the Scylla and Charybdis of brevity and coherence. Mr. Mitchell: It is pronounced “Charybdis”. Mr. Pound: Mr. Cook, you will forgive me. Unlike the hon. Gentleman, I did not have the benefit of a private education and I left school at 15. Therefore, I am self-taught. [Interruption.] I will certainly give way to someone who is more skilled in demotic Greek or Latin than I am. Patrick Mercer: I am grateful to the hon. Gentleman for all the comments that he has made so far and for his recognition of the motives behind the Bill. May I say that I would rather fall between the two bodies that he has mentioned than between two stools? Mr. Pound: I think that I am grateful to the hon. and gallant Gentleman for that comment, but I am not entirely sure, to be perfectly honest. The limitations of my education are yet again revealed. I was making the point that, in presenting a brief Bill, the hon. and gallant Gentleman has produced legislation that, frankly, would be unworkable. The Bill has already attracted the attention of people outside the House who see it as a legitimisation of violence Bill. The courage that the hon. and gallant Gentleman showed in a very distinguished military career has been matched by his courage this afternoon
Lady Hermon: The hon. Gentleman has said that he believes the Bill in its present form to be “unworkable”. Will he expound on that and say exactly why he thinks it unworkable? Mr. Pound: I am grateful to the hon. Lady, as always. Both she and her husband have much more experience of far greater stresses in such matters than ever I could pretend to understand. I respect very much her position and the information and experience that she brings to the Committee. The measure does not give carte blanche to the householder. It does not even define a householder. The Bill is inaccurately titled because it is not a householder defence Bill and does not even define a householder. The hon. and gallant Gentleman uses the phrase “grossly disproportionate”. He accepts that the existing common law self-defence argument is applicable, because otherwise he would not qualify it by use of that phrase. Therefore, the present law is demonstrably capable of being used as a resolution in this case. The Bill is unworkable on the grounds of definition, but I will come to that. I also gently and respectfully suggest that the Bill is unworkable because of proposed new subsection (1A)(b) in clause 1(2), which states that
the fact that the degree of force used was grossly disproportionate—
I am proud not to be a lawyer and understand that far too many lawyers are in the House of Commons. I apologise to any learned Members if they feel offended by that, but there are rather too many of them. [Interruption.] The hon. Member for North Down was a law lecturer. A law lecturer requires a far higher degree of skill than a mere practitioner. However, even a lecturer in law as distinguished as the hon. Lady would surely have immense difficulty in trying to analyse the words in the Bill:
Few of us are capable of mind-reading, but how in heaven’s name could we analyse the frame of mind of a householder or, as my hon. Friend the Member for Leyton and Wanstead mentioned, a security guard, a squatter or even the father of the girlfriend of his son? Such cases would end up in a court of law because there would have to be an inquest if someone was killed during a burglary. Lawyers on thousands of guineas an hour would spend day after day leafing through their musty tomes of Archbold, and the various other volumes that I see the hon. Member for Newark has brought along, to try to calculate what
Even the wonderful Heather Millican could not produce that sort of information in her supporting documentation. Column Number: 16 Harry Cohen: My hon. Friend mentioned the example of a squatter. That is the subject of one of his amendments; I did not go into that. Could a squatter be a householder under the Bill, and therefore assault a genuine home owner—albeit an absent home owner—trying to enter the premises? The Bill would give rights to squatters which I do not think its promoter envisaged. Will my hon. Friend discuss that a little more? Mr. Pound: I was coming to my subsequent amendments. My hon. Friend has, over his many years in this place, won a reputation for being one of the great analysts and someone who studies the minutiae of the law. His forensic skills have been displayed to the delectation of the House and to a wider audience on many occasions. I have no doubt that when his many constituents, who vote for him with regularity and eagerness, receive the copy of Hansard, which the hon. Member for Sutton Coldfield has generously offered to circulate at his own expense, they will appreciate his words even more. Amendments Nos. 4 to 9—I see a look of relief on your face, Mr. Cook—would clarify inconsistencies. The Bill refers to buildings and could relate to buildings other than residences, which is a problem. We all have in our minds the picture of a house—the word “householder” is in the title—but it is not limited to houses. It could apply to shops, offices or warehouses. As my hon. Friend the Member for Leyton and Wanstead said, it is not confined to a resident, as we would describe the poor so and so who pays the mortgage or the rent, the householder or the occupier, but anyone in the building. He gave some dramatic examples so I will not bore the Committee by going through another litany of examples, but I could— Mr. Mitchell: Heaven forfend. Mr. Pound: I could because there is an inconsistency. The example of a squatter is valid. I spent many years working for a housing association in London and frequently had to deal with squatters. I was assaulted by them many times and would not particularly like them to be given the right of redress under common law. The Bill would enable an undefined anyone to use force against anyone else—also undefined—who is in the building or attempting to enter it. My amendments would ensure that the Bill applies specifically to householders or residents only. Lady Hermon: Will the hon. Gentleman address one point? Amendment No. 4 will narrow significantly the Bill’s provisions by introducing the words “the householder”. What would happen if I, as a visitor to a house, were present there with my children when an intruder came in with a shotgun or a knife? Would I be entitled to lift a hand to defend my children? Mr. Pound: The hon. Lady puts her finger precisely on the problem. At present, the Bill is called the “Householder Protection” Bill, but it does not protect householders because it does not define them. The
Lady Hermon: The hon. Gentleman often tables a series of amendments, as he is perfectly aware. I draw his attention to amendment No. 7. In it, he defines “householder” to include
Residence surely means staying in a particular house at least overnight and at least once. What would happen to me as a visitor when visiting such a house? Have I no right to protect my children? That was my original question. Mr. Pound: One would almost suspect that the hon. Lady had read my notes. I have no secrets from her. Indeed, it would do me no good if I tried to keep anything secret, because she can see right through me. The hon. Lady refers to amendment No. 7, which states:
In the two pillars of law—in common law, and in housing law going back to the Housing Act 1985—the occupation of a building as a residence is a defined legal phrase. Occupying the building as tenant, a housing association tenant, an owner or an owner-occupier are all contained within the ambit of that legal definition. I am trying to address that precise point. On one hand, I entirely accept that the squatter would have no right to attack the innocent young officer of the housing association or the returning owner; on the other hand, it would equally disfranchise the casual guest—the overnight guest—who happens to have an unpleasant experience. It is that sort of anomaly that makes the difficulties in the Bill so obvious. Mrs. Clark: We have been talking a lot about householders, and presumably about buildings in which people live, eat and sleep. Does my hon. Friend agree that some people may own other buildings, such as garages and sheds, and spend a lot of their time there? What would be the law as far as those buildings are concerned? Mr. Pound: My hon. Friend may choose to cast an eye over amendments Nos. 5 and 6, which address those very points. She says that a house is a building in which people eat and sleep. Mrs. Clark: Or spend a lot of time in. Mr. Pound: People do many things in them. My amendments mention flats, caravans and boats. We have people living on canal boats or narrow boats in my part of the world—bearing in mind the price of housing in west London, that is entirely understandable. Equally, amendment No. 6 specifically widens the Bill’s ambit to include Column Number: 18
I hope that people in Newark and throughout the country recognise that I am trying to help by addressing precisely the sort of concern that the keen forensic mind of my hon. Friend the Member for Peterborough (Mrs. Clark) draws to the Committee’s attention. Patrick Mercer: I appreciate that many of the hon. Gentleman’s amendments verge on the helpful, but amendment No. 7 states:
How would a babysitter or a shop owner fit into that definition? He has touched on both those points, but if he could clarify that matter for the purposes of the record, I would be most grateful. 3.30 pmMr. Pound: I am grateful to the hon. Gentleman for his intervention, but it in some ways illuminates the centrality of the difficulty faced by the Committee in trying both to achieve legal and legislative clarity and to take account of all the different ways in which people live their lives. The answer to the question about commercial premises is that they do not fit into the definition, because the Bill—it is a householder protection Bill—does not cover commercial premises. We are not discussing commercial premises; that is a different pillar of the law. We can certainly do so, and I am sure that we will do so again. Those of us who gather here after May may find ourselves doing precisely that. The hon. and gallant Member for Newark looks quizzically at me. I was just saying that there is a rumour abroad that there may be an election in the spring, although I would naturally discount it—[Interruption.] The hon. and gallant Gentleman mentioned the situation in respect of a babysitter, an au pair, or someone else who is occupying the premises by permission of the householder. Were he to table an amendment to address that matter, it would certainly attract wide support, because that area needs to be defined. Were he to suggest a provision relating to anyone in the property, be it a house, boat, caravan, garden or garden shed, who is there by express permission as the agent or, in the legal term, as the servant of the person who has the right to give that power, we could discuss the matter in a more positive way. However, the hon. and gallant Gentleman’s Bill does not mention that matter; there is no au pair subsection or babysitter clause. There is nothing in the Bill that refers to people occupying the premises by permission of the householder. We have rightly concentrated on those who occupy the premises without permission of the householder, because that is of much more concern to us in terms of the phrasing of the Bill. However, the hon. and gallant Gentleman has, almost certainly unwittingly, virtually destroyed the main thrust of his argument by introducing that example, because it shows precisely
Lady Hermon: I am grateful to the hon. Gentleman; he has been generous in taking interventions, and I appreciate that. This is a serious issue, and I appreciate the seriousness with which he has addressed it. In order to give him some sleep this evening and to avoid his worrying needlessly, the Committee should be reminded that, since 2002, Practice Directions (Criminal Proceedings: Consolidation) have existed, which provide separate guidelines for burglary at a dwelling house and burglary at a non-dwelling. The issue of how a house is defined is covered in those guidelines. Mr. Pound: Had I been one of the hon. Lady’s students at Queen’s, I would undoubtedly have been a better person and a finer Member of Parliament—[Hon. Members: “Hear, hear.”] The enthusiasm with which that comment was greeted might seem to imply that I am somehow failing in my duties at present. I agree with the hon. Lady, because the problem with the Bill as drafted is that that definition is not explicit. There are legal definitions and current legal guidelines. Reference to the Association of Chief Police Officers and the Crown Prosecution Service booklet has already been made. If we refer to the rubric of that guide note, we will see that the existing law can and should be used. However, it demonstrably does not address the issue of confidence, which the hon. and gallant Gentleman rightly illuminates by introducing the Bill. It is that juxtaposition between a law that is usable and the failure to attain confidence in that law that is the most useful product of our discussion. Harry Cohen: I would like to go down a different path. My hon. Friend said that the Bill did not apply to commercial premises, but I believe that it could. Although “householder protection” is in the short title, the long title does not refer to householders. There is no definition of householder in the Bill either. My hon. Friend has tabled an amendment to limit it to householders. Clause 1(2) is key. It states:
That surely could be commercial premises. A nightclub bouncer could use the clause as a defence. Is there any reason why that is not so? Is my logic flawed there? Could commercial premises be covered? Mr. Pound: I am grateful for my hon. Friend’s intervention. I am not the author of this Bill. If I were I might have made the contradistinction between commercial and domestic premises. I am a humble Back Bencher seeking to help the promoter of the Bill by introducing some clarity. I have tried to define “house” in the context of “householder” in amendment No. 4. Had I to cast my net even wider I would certainly have included commercial premises, but my amendment refers to “house”. Column Number: 20 On Second Reading, I referred to the case of a village postmaster who in the face of a most vicious, unprovoked attack by someone who broke into his post office, defended himself. It resulted in his attacker’s death but he was exonerated and acquitted. That example preyed on my mind a great deal and I wondered why we could not extend the Bill to commercial premises. The answer—and I am again grateful to the promoter of the Bill and his staff for their assistance—is that the Bill is aimed specifically at the domestic context. If he wishes to expand it to the commercial world he has the right to do so, but at present we are talking about a domestic situation. We are talking about householders in both the long and short titles. I am trying to clarify use of the word “householder” by defining the legal status of the householder and the legal status of the house. Some who are following our proceedings may think that this is merely MPs arguing about how many angels can dance on the head of a pin, but let us never forget for one second that we are talking about life and death. We do not need to come up with lurid examples, but a person could be killed and the courts would have to judge whether the killing was lawful under the terms of the Bill and the existing common law. Definition is utterly crucial. To say that it is a matter of life or death is not an exaggeration but an illustration of the seriousness of the subject. |
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