Criminal Law (Amendment) (Householder Protection) Bill |
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Harry Cohen: I appreciate the points that my hon. Friend the Minister has made, particularly about the review of the law. However, will he ask the Law Officers to review sentences for burglary? Just because I, for one, like the Government, oppose the Bill— The Chairman: Order. The inquiry is not relevant to the point at issue today. We are not talking about sentencing. [Interruption.] We are not discussing, nor do we need to discuss, issues related to sentencing. The hon. Gentleman’s inquiry of the Minister is irrelevant and unnecessary. Paul Goggins: That exchange, which you may or may not want me to comment upon, Mr. Cook, illustrates the importance that we all attach to burglary. It is a serious offence and that should be the starting point for our deliberations. Lady Hermon: I am most grateful to the Minister for taking a second intervention so quickly— Column Number: 30 The Chairman: Order. May I ask the hon. Member to enunciate with a little more volume? I am partially deaf and it is difficult for me to hear what she says. If, as a result, I allow her to stray off the point, I shall be criticised by other members of the Committee. 4.30 pmLady Hermon: I apologise, Mr. Cook. I was not aware of the difficulty. The Minister introduced his remarks by referring to the Government’s clarification. He described it as being very clear. In a press release issued on 1 February 2005, the Home Secretary cited the Director of Public Prosecutions. He said:
However, in the same press release, he cited the Attorney-General, Lord Goldsmith, as saying:
Who is right: the DPP or the Attorney-General? Paul Goggins: It is not a matter of choice. The question is how to define what is reasonable. The problem for the public—this is possibly a misunderstanding—is that reasonable force can sometimes mean significant force. In certain circumstances, it could mean a householder taking action that resulted in a burglar losing his life. That could be reasonable. Clearly, it would need a major act to take someone’s life in that way, but it could still be reasonable. That is the what the guidance tries to make clear. It seeks to give more confidence to householders by saying that the law is on their side and that, when one is confined to one’s bedroom in the middle of the night, what is reasonable may mean that significant action can be taken. I do not read into the comments that the hon. Lady cited any difference or distinction between the views expressed. Lady Hermon: Will the Minister explain the distinction between “grossly disproportionate”, which appears in the Bill, and the words of the DPP— The Chairman: Order. I do not wish to curtail the breadth of debate, but the hon. Lady’s points are more pertinent to the debate on Government amendment No. 10. Perhaps we can leave her concerns until then. I ask the Minister to continue his response to the amendments under consideration. Paul Goggins: I accept your guidance, Mr. Cook, and I am sure that the hon. Lady will be happy to leave it until then. The Bill applies to a
It can be seen from that clear wording that it contains no express requirement that the person using the force is in the building too. We have heard of examples—not least from my hon. Friend the Member for Leyton and Wanstead—of the burglar being inside the property and the householder outside it. One of my hon.
I accept the point made by the hon. Member for Newark that the guidance allows for some pursuit of a burglar beyond the boundary of the property, but to go as far as the example given by my hon. Friend would not be acceptable. Once we get to such a situation, it will clearly be a matter for the police and law enforcement, and it will be for society to take action on behalf of the householder to bring the perpetrator to justice. My hon. Friend does us a service by clarifying the fact that we are talking about both the burglar and the householder being in the building. I am not saying that the hon. Member for Newark intends there to be a lack of clarity. We can explore these matters in much finer detail in Committee, but we cannot allow to pass through this House a Bill that is not clear enough to be applicable, because it would lead to more confusion. He made it clear on Second Reading that his purpose was to clarify an area of the law in which the public lack confidence. It is therefore important to make the terms of his Bill as clear as possible. “Any person, any building” must be the starting point for our deliberations this afternoon, because the danger is that we will end up with different laws operating in different ways when similar acts are being committed. Why should the Bill relate only to the householder in their house? What about someone in an office or an open space? We are talking about the same brutal attack or a sexual assault, and there should not be one rule for dealing with such an attack in the home and a different rule for dealing with it outside. If a young woman is viciously attacked and threatened with rape, she should be able to defend herself, vigorously and with reasonable force, in law, no matter where she is. Mr. Mitchell: The Minister is being extremely helpful in grappling with a problem of definition. His comments bear not on the main thrust of the Bill, but on the definitions that we all want to get right, and he is very helpfully setting out how he believes they should be clarified. With all the resources of his vast Department, it is inconceivable that neither he nor his colleagues have thought about how to produce a sensible draft. Will he, at an appropriate point in his remarks, explain how the Bill could be amended to satisfy the discrepancies that he sets out? Paul Goggins: Ministers always try to bring light and clarity to the world of difficult problems, but the fundamental problem with this Bill—I beg the indulgence of the Chairman at this point, because this will be in our next debate—is that the definition offers a different test of what action can be taken and whether that action is grossly disproportionate or reasonable. Having one test for an action to defend oneself inside one’s home and a different test for the same action to defend oneself outside it will lead to more confusion in the law, not greater clarity. Column Number: 32 Mr. Mitchell: Like the Minister, I do not want to pre-empt the next debate on Government new clause 10, but that is about the thrust of the Bill, and it addresses the point about whether existing law is satisfactory. We say that it is not, the Minister will argue that it is, and that will be the subject of the debate. However, he is dealing with a different point now, which is about the definition of those whom the Bill should encompass. I ask him the same question: will he, as he articulately advances his arguments, tell us how the drafting could be improved to respond to those points? Paul Goggins: The hon. Gentleman is being very kind to me, but I am obviously not being clear enough, as I have failed to explain that it would be impossible to draft the Bill so carefully and so tightly that it would work in practice, because it would rely on a definition of gross disproportionality rather than reasonableness. The test of reasonableness must be the test that applies, and it must therefore bring consistency to what happens inside someone’s home and what happens outside it. Patrick Mercer: If it is impossible to define gross disproportionality, why has that been adopted in civil law? Paul Goggins: Again, I am not explaining myself very well. It is possible to define gross disproportionality, and I look forward to the hon. Gentleman’s explanation of his definition of it to see how it differs from the definitions offered by other hon. Members. He is right that we applied a test of gross disproportionality in civil law under the Criminal Justice Act 2003 to prevent a burglar—the offender—from claiming damages from a householder if they suffer as a consequence of their illegal activity. We have the test of gross disproportionality. To apply it in these circumstances would produce so many anomalies and difficulties, which I shall try to outline, that it would not work in practice. My real concern is that it would add further confusion to the public mind on the matter. We seek greater clarity so that people can defend themselves with confidence and know that they will be backed up by the law when they defend their home, their loved ones and their property, which they have every right to do. The hon. Member for North Down was right to say that the home is a holy place, and the law should respect that. There is nothing in the test of reasonableness that detracts from that sanctity. Mr. Mitchell: May I make one more attempt to persuade the Minister that there is a way through this? He has again said that there is a difference between gross disproportionality and reasonableness, which will be the subject of our next debate. The issue is the groups of people to whom the subject of that debate will apply. He says that the current definition is confusing. For my part, I am prepared to accept that the Bill may not include every possible group in its terminology, because of drafting difficulties. Column Number: 33 I do not want the best to be the enemy of the good, and it may well be that we can settle on a broad definition that covers most of the people to whom my hon. and gallant Friend the Member for Newark is rightly seeking to bring clarity. That is why I ask, for the third time, whether the Minister can present a form of words that meets that definitional point before we get on to whether the current law is adequate in defending whoever needs defending. Paul Goggins: I am afraid that I have to disappoint the hon. Gentleman. I do not understand how I can improve something that is fundamentally flawed. Perhaps it is possible to improve the Bill slightly. My hon. Friends have attempted to do that by tabling their amendments, and I appreciate the fact that they have done so. However, the fact is that the Bill applies to any person and any building. As the Bill stands, it does not matter whether we are talking about a home, an office or a commercial premises, and it does not matter whether someone is the householder or not. My greatest concern is the distinction between an action taken to defend oneself in a public place or open space, such as a park or somewhere that is not a building, when a person may be faced by a terrible and life-threatening challenge. They should be able to take the same action in their house as outside, and the Bill would sow confusion and draw a different test for what happens in the home from what applies outside. Faced with that sort of challenge, individuals should be able to defend themselves with the greatest possible vigour in order to protect their lives, their families and their property. I do not want to cause any confusion between inside and outside. The hon. Gentleman will have further opportunities to test me as to whether I can develop ways of improving the legislation. He may table amendments that seek to do that, and perhaps we will have the opportunity to debate them. Harry Cohen: I agree with the Minister’s position and his response to the hon. Member for Sutton Coldfield. Whether inside or outside, the law should be comparable, and it should be very similar, if not the same. If there was to be a change, should there not be a complete review of the self-defence laws? If there were a separate law in relation to burglary and householders, as the Bill proposes, surely it should have an emphasis on self-defence that would be the same as it is for others in an outside environment? Paul Goggins: It might help my hon. Friend to know that although the Government are not undertaking a review of self-defence, we will be considering self-defence as part of the review of murder announced by my right hon. Friend the Home Secretary. That will be an important deliberation. Clearly, self-defence that results in somebody else losing their life is a dramatic step, but there are circumstances in which it can be justified. The review will consider that. Column Number: 34 4.45 pmMr. Mitchell: The Minister rather beguilingly tried to suggest that I might wish to bring forward amendments to seek to clarify what he and his Department are unable to clarify. At least, that is what I think he was saying. May I reassure him on that point? I have no amendments to make to the Bill. It is an excellent Bill. My constituents and, I submit, his constituents want to see the Bill on the statute book for all the reasons that my hon. and gallant Friend has given. I have no intention of tabling any amendments. Paul Goggins: That is obviously the hon. Gentleman’s choice. He was asking me to table amendments to clarify the position. As I failed to persuade him, I thought he might have sought to table amendments to bring the clarity he seeks. My constituents, like his, regard burglary and the ability to defend oneself when under attack as very important. That is why I am at pains to tell the hon. Gentleman’s constituents and all our constituents that the law is on their side. When faced with this kind of challenge, this affront to their private home and even to— The Chairman: Order. I pay tribute to the Minister’s patience and the patience of the rest of the Committee, but we keep returning to the Second Reading debate when we should be concentrating on amendments. I admonish hon. Members who seek to take us back there. It is needlessly absorbing time that should be spent on the amendments. Paul Goggins: I plead guilty to the Second Reading offence, although I am drawn back to it by interventions. I hope that I do not disappoint or upset my hon. Friend, the Member for Leyton and Wanstead but there are some difficulties with his amendment. He is a generous person and I am sure he will reflect on them. For example, the father whose children are at risk of attack within the home when he is outside the home would not be assisted by my hon. Friend’s amendment. He would be outside: his children would be inside. We may have to find a way of making it clear that he would need to be able to take some action to defend his loved ones. I am sure that my hon. Friend would agree that it would be rather odd if the father seeking to protect his children were placed in a different situation because he happened to be outside the home than if he were inside the home. That clearly illustrates again that even though my hon. Friend has tried to bring clarity here, it leaves some difficult areas that we would still need to address. I have already touched on the situation of a young woman who, under the promoter’s proposals, would be expected to use a different level of force to defend herself if she were attacked in a park than if she were attacked in a home. That seems quite wrong and is something that my hon. Friends have tried to address. Law enforcement officers and the courts would have to apply the old test of reasonableness to govern the degree of force if she were attacked in the park or an open space, but the new test if she were trying to stop a burglar in a home where no individual was directly
I turn now to amendments Nos. 4 to 9 tabled by my hon. Friend the Member for Ealing, North. The issues that he has covered were raised on Second Reading by other Members who are not members of this Committee. In doing so they exposed some of the many loopholes in the Bill. A particularly stark loophole is that although the title of the Bill includes the words “householder protection”, the Bill itself does not refer to householders and is therefore not limited to householders. It is any person in any building. I have already made it clear that the Government are still opposed to the Bill in principle. It is unnecessary and based on a misconception that the way to clarify public understanding is to change the law, rather than to improve public understanding of what the law allows. We must have consistency; we cannot allow a situation in which the law would operate differently for a strong person who was in a position to defend himself from how it would operate for a weaker person. In the end, we all rely on good, accessible law enforcement, which can come to the aid of a householder, or anybody, in distress. That is why the additional police officers that we have been able to resource are so important. Lady Hermon: Is the Minister aware of any statutory definition of the term “householder”? Paul Goggins: As I stand here now, I do not. I shall seek further advice on it. Patrick Mercer: To help the Minister, I cannot find any statutory definition of householder and that is why the Bill is drafted as it is. It continues to make sense for it to be any person and any building. Paul Goggins: In the public mind, a householder would be somebody who was occupying premises and who had lived there for a period of time, even if they did not own the property—perhaps even if they did not technically lease or rent the property. We discussed earlier whether it would extend to the babysitter. I shall seek further advice and come back to the hon. Lady. If the hon. Gentleman, who has assiduously researched the background to the Bill, has not been able to find a definition, I take comfort from the fact that I am in good company in not being able to respond to the hon. Lady, who has considerable knowledge. I am sure she will add some further comments to help us. I suspect that in asking the question, she either knows, or does not know— Lady Hermon: I have a high regard for the Minister. The whole point of not having a definition of a householder in the Bill is surely because it is not intended to be exhaustive. I had hoped that the Bill
Paul Goggins: Yes. That is the difficulty, because the way that the Bill has been portrayed publicly is that it is specifically about the householder. In reality, as the Bill applies, it is not so narrowly defined. Therefore, it moves away from the position of the householder to any person, which reduces the weight of the Bill. Patrick Mercer: I am surprised at what the Minister is saying. He and I engaged in several media debates and presentations, as did another member of the Committee. I made a particular point, all the time, of referring to a householder or a shop owner, and every time I said the word, including in the media debates and on Second Reading, I was assiduous in making it clear that the Bill did not apply just to what we might commonly assume to be a householder. Paul Goggins: But it would require somebody to be in a building, therefore there is still a discrepancy between the person in their home and the person who is outside their home, even though the attack or affront to them may be just as grave and just as severe. There are two tensions: whether it is a householder or any occupant of any building at any time, and the difference between activity in the home and activity in an open space, not a building, where the action may be very severe. Reference has been made to how often there have been prosecutions in such cases, and we are aware of only a few in which a person has been prosecuted for using force against an intruder. We cannot be precise about the numbers because they are not recorded in a way that helps us to identify the specific cases; we have had debates about precisely how many, but there are very few. The Director of Public Prosecutions has made it clear—the hon. Lady referred to some of what he said—and I will quote him:
Given the sensible and sympathetic way the courts and the police have interpreted the concept of “reasonable force” the Bill is unnecessary and a retrograde step. I emphasise that I do not criticise the hon. Gentleman for his concern about burglary—both the offence and the plight of the householder—but we have an absolute assurance from the Director of Public Prosecutions that only in the most extreme of circumstances would there be any question of a prosecution taking place. Lady Hermon: Does the Minister accept that although very few people are actually prosecuted at the end of a long trawl by the Director of Public Prosecutions, householders in the widest sense of the term have an agonising wait to know whether they will face prosecution? The issue is not how many are
Paul Goggins: I do not accept that the law is uncertain. However, I accept that the householder—the person who has had the crime committed against them—is in a very vulnerable position and should be treated with the utmost courtesy and respect and given support by the law enforcement agencies and others, including organisations such as Victim Support, that can provide help. One of the reassuring things included in the leaflet published by the Crown Prosecution Service and the police is that they intend in future to ensure that any case of that kind would be handled by a very senior and experienced person. We would all deprecate the kind of long delays in such cases that have been highlighted by the hon. Member for Newark in debates and elsewhere, and we should seek to minimise those delays. Of course, in any case in which there has been a burglary there will have to be a police investigation, because a crime has been committed, but the person who has been a victim of that crime— Chris Grayling: On a point of order, Mr. Cook. May I seek your guidance? You will be aware—your comments from the Chair have clearly indicated your awareness— that although this is a serious issue that requires proper debate, Labour Members appear to have been extending their remarks beyond what would normally be necessary to deal with a group of amendments such as this, to the extent that nearly two and a half hours have passed in this first sitting. The business of the House today is complicated, and 10 different votes are due at 7 o’clock, which will take some considerable time out of this evening. The Opposition suspect that the Government are seeking in some way to manipulate this debate for political purposes, either to ensure that it is delayed or to force it to be extended beyond the normal hours. May I seek your guidance on what happens in the event of a prolonged gap at 7 o’clock? Will the debate be postponed to another day and, if so, when? Would that be immediately or— 5 pmThe Chairman: Order. We are debating a private Member’s Bill. As such, it is not susceptible to the machinations of the usual channels. I must allow hon. Members to express their views while they remain within the framework of good order. At the moment, the Minister is trying to give the Government’s view on various aspects of the amendments before the Committee. The fact that it is taking time is largely the result of interventions and questions. To that extent, some of the observations expressed about the Labour Government’s view are slightly out of place. If we are to continue, perhaps we should suspend the sitting at 5.15 pm for 45 minutes, in order for hon. Members, including myself, to gain sustenance—something to bite and something to sip. At that time, the Committee may be of a mind to seek a sitting on another day as we are compelled to cease our deliberations at 7 pm. As we do not have the facilities
Chris Grayling: Further to that point of order, Mr. Cook. I am a newer Member of the House and not sure of the procedures that apply, but if the Committee should seek to adjourn till another day, would it normally have some choice over what that day should be and can you give us any sense of how quickly one can obtain a slot? The Chairman: The Member in charge of the Bill, the hon. Member for Newark, has the opportunity under the rules to make suggestions to the Committee. It is up to the Committee to consider them and to agree or disagree with them. If the Committee disagrees, hon. Members will have to come up with an alternative—an amendment. Paul Goggins: As you say, Mr. Cook, that is one area in which the usual channels do not operate. In a spirit of co-operation, I shall try to answer questions and respond to whatever comments are made. I return to the amendments in hand. The Bill would cover people who use force to protect a building that does not belong to them, such as a shop or a warehouse. For example, it would apply to the use of force on trespassers by security guards in commercial premises. They could act against burglars. |
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