Criminal Law (Amendment) (Householder Protection) Bill |
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Harry Cohen: Would the legislation apply to a bouncer in a nightclub? Paul Goggins: If the bouncer was standing outside the building, the legislation as drafted would not apply because, as my hon. Friend has been at pains to tell us, according to his amendment the person doing the defending and the person doing the attacking would both need to be in the building. The bouncer outside would certainly not be covered, although if we return to the Theft Act— Mr. Pound: 1968. Paul Goggins: I remember it well. That Act’s definition of building would include commercial premises and other premises, such as clubs, nightclubs and so on. I hope that that helps. I assume that it would depend on whether the bouncer was inside or outside the building, but the bouncer would certainly not be a householder seeking to protect his property and his family and children, which is the essence of what the hon. Member for Newark seeks. However, I point out again that what he pursues will produce anomalies and will not necessarily get him what he wishes. I was explaining that security guards in commercial premises could use the Bill to justify their actions, but that security guards on the high street who were attacked by people using exactly the same force would not be able to use the Bill’s provisions in their defence because they would not be in a building. That is another anomaly. Similarly, the Bill would apply a different test to persons who were in a building as trespassers—perhaps as squatters, as my hon. Friend mentioned. As
I am pointing out again—perhaps rather painfully, Mr. Cook, as I see from the expression on your face—the anomalies that the Bill would introduce. In all my dealings with the hon. Gentleman, I have no doubt that his objective is sincere, but he must reflect on the anomalies. We will have the opportunity shortly to hear from him. The amendments tabled by my hon. Friends would ensure that the new test of not grossly disproportionate force would apply to those in occupation of a building, permanently or temporarily, as a residence. For the sake of clarity they apply to any dwelling—as my hon. Friend the Member for Ealing, North made it clear, that would include caravans, boats and so on. We have debated the word “building” a lot this afternoon. As it is used at the moment, however, it would not include a boat or a caravan. Once again, we see inconsistencies in the Bill. It would cover householders in some situations but not others, despite the fact that some structures are used as homes for some of the most vulnerable in society. My hon. Friend the Member for Ealing, North referred to people sleeping rough in cars, but the Bill would not protect them. My hon. Friend sought some clarity on where outside the home people could use the provisions of the Bill to their advantage. The ambit of the provision will be limited by the amendments to all residences, including holiday or other residences, and any other property occupied as a residence. That may be an important consideration, given second home ownership and the use of holiday homes, caravans and so on. The amendments would ensure that references to houses would cover gardens or other grounds belonging to them—whether or not they had hot tubs, they would all be included. It would be odd if the new test were to apply when the burglar was in the kitchen, but not if he was stealing from the garden or threatening a child or a partner in the garden. That is what the text of the Bill would provide at the moment. If the hon. Member for Newark believes in householders’ rights, then surely he would want to extend his provisions to include gardens, garages and garden sheds—structures that may form part of the property. Column Number: 40 The final amendment moved by my hon. Friend the Member for Ealing, North would ensure for the avoidance of doubt that a person cannot be regarded as occupying a house if that occupation arises from the fact that he is trespassing. As I pointed out, the Bill applies the new test that the person who uses the force does not need to be the owner, nor even a legitimate resident. My hon. Friend seeks to clarify that. The amendments limit the application of the offence. They would make it apply only to householders and not, for instance, to a security guard who found a potential thief attempting to enter a warehouse or other private premises—as my hon. Friend the Member for Ealing, North observed earlier this afternoon and on Second Reading. It would also not apply to anyone who was in someone else’s house—for instance someone who was visiting friends or who was house-sitting while their friends were away on holiday. In our view, those examples show the fundamental problem with the Bill. Why should the law distinguish between the amount of force that I may use in my house and the amount of force that the hon. Member for Newark may use in my house to defend me if I was being assailed or my house was being invaded? The same test should apply. It is a question of what is reasonable in the circumstances, not whether it is my house or his house, or whether we are inside or outside. Wherever one is, the only test is the reasonable force test. You have been very patient, Mr. Cook, as has the Committee. I have tried to respond as much as I can. I hope that my comments on what I regard as positive amendments have not given the impression that I agree in any way with the fundamental approach of the Bill. It ought to be clear—it will certainly become clear in other debates—that I remain utterly opposed to the Bill. However, I look forward to hearing what the hon. Member for Newark has to say. Patrick Mercer: I am conscious, Mr. Cook, that I have only a few minutes before the suspension that you rightly ordered. I start by welcoming you to the Chair. I also thank the Minister for all the work that he has put into the Bill; for presenting an extremely reasonable, reasoned and fair case; and for seeking not to extend the time that he took to argue his case. I also thank everyone else, particularly those on my own Benches. As you are aware, Mr. Cook, it falls to me, as the private Member who introduced the Bill, to find those for the list. Mr. Hugo Swire (East Devon) (Con): Pressed men. Patrick Mercer: I hear the words “pressed men” from behind me, and I should say that I am particularly grateful to the Labour Members on the Committee. Clearly, I have no control over members of other parties, but the hon. Members for Blyth Valley (Mr. Campbell) and for North Durham (Mr. Jones) both volunteered at short notice to help take this important Bill through the Committee, joining all the other volunteers who had come forward. I therefore thank them in particular. The hon. Member
The niceties over, I shall endeavour to concentrate my comments on the amendments. If I may make so bold—this is, of course, no criticism of you, Mr. Cook—I am conscious of the fact that the debate has strayed endlessly onto issues that we are likely to debate under other amendments. At this point, therefore, I shall deliberately not pick up some of the Minister’s comments in particular because, with the greatest respect, we may rely on them being addressed more properly later in the debate. I want now to focus on amendments Nos. 1, 2 and 4 to 9. The hon. Member for Leyton and Wanstead produced a serious of comments that I found extraordinarily difficult to follow. I say that with huge respect, because I like to think that he and I are friends, and we have certainly discussed these issues in the margin previously. His comments were particularly fallacious, given that the Minister criticised amendments Nos. 1 and 2, and I shall pick up on the very arguments that the Minister used. I think that the hon. Member for Leyton and Wanstead was trying to suggest in the amendments—with respect, I must repeat that the wording is not easy to follow—that the Bill should apply only to those who are in the same building at the same time, face to face, tooth to tooth and hand to hand. The hon. Gentleman used the word “vigilante” which, again, I find extremely difficult to understand. I should underline a point that I have made before: one reason why I decided to bring this private Member’s Bill before the House is because I have witnessed a huge amount of debate in my area of Newark and Retford as a result of the Tony Martin case. I fear, therefore, that words such as “vigilante” are desperately emotive. Unlike the Barras family, who have been deprived of their son, Mr. Fearon’s family, thank God, still have a son to love and cherish, despite the circumstances and despite what one might think of his conduct. If I were to put the word “vigilante” into that excellent organ the Newark Advertiser, I fear, given the background and environment from which I draw my case, that we would be howled at and ridiculed. Harry Cohen: Does not the hon. Gentleman acknowledge that the wording of the Bill gives scope for vigilantes? It uses the phrase:
It does not talk about a householder. A householder could bring in someone to act as a vigilante. Patrick Mercer: I am grateful to the hon. Gentleman, but I do not think that that is right. I do not want to detain the Committee by defining the word “vigilante”, but the fact remains that if a person—whether a vigilante or someone who has been hired as a hit-man or something of that ilk—acts improperly, going beyond the provision of gross disproportionality, they will be tried under the Bill. If they are tried successfully, they will go to prison. Column Number: 42 5.15 pmSitting suspended. 6 pmOn resuming— Patrick Mercer: I am most grateful for the break. I have no doubt that you enjoyed it as much as I did, Mr. Cook. I have a few remaining comments about amendments Nos. 1 and 2. I had almost finished criticising them—I will not say condemning them because that would be unfair—on the basis of the points already made by the Minister. If the amendments are accepted, it will be impossible for a father tending to plants in his garden or walking the dog late at night, who detected a burglar while his children were inside the house, to enjoy the protection of the Bill. That is a straightforward case, but let me go further. Sometimes, my wife and son, when he is back from school, are inside the house, and I am outside as night falls trying to shoot rabbits with the only firearm that I now handle, namely, an air rifle. The hon. Member for Leyton and Wanstead made a good point. If I detected a burglar or intruder inside the house and, for the sake of argument, peered through the window, believed that the person was robbing my house or looking thoroughly unpleasant, stuck a shotgun through the window and fired at the man or woman, I would have acted grossly disproportionately and would be liable to prosecution under the Bill as I have written it. Therefore, the two amendments are needless and would detract from the strength of the Bill. The various suggestions made by the hon. Member for Ealing, North are more complex and pose a more difficult problem. We know each other well, and I am conscious that the issue of householder protection has caused him difficulty in the past—I shall not needle him about that because it has already been done and it is improper. The title of the Bill caused me a problem. It had to make sense and to attract the public’s understanding. The hon. Gentleman’s suggestion, which was flippant but based on rational thought, was that the Bill should have a long and complex title to cover all eventualities. We did not go for that, because it would not have aided or abetted my aim of making the Bill understood to the voting public. That is why “householder protection” is in the short title of the Bill. However, the point has already been made that it would cover not only householders, but any person in any building such as, I would hope, shop owners and babysitters. Although I understand that some of the amendments are intended to be genuinely helpful and to throw light on the way in which the Bill has been drafted, I will end up rejecting them all. It is clear that, in essence, amendment No. 4 would emasculate proposed new subsection (1A) by adding paragraphs (a) and (b). As I said earlier, inherent in the cause and design of the Bill is protection for householders and shop owners. At no stage before the Committee stage have I referred to anything other than that. If amendment No. 4 were to stand, the Bill would not cover shop owners, and that would not
In amendment No. 5, the hon. Gentleman attempted to define the meaning of “house”. The hon. Member for North Down made the point much better than I can—I am no lawyer, heaven forfend—that it is already clearly defined in the Theft Act 1968. Furthermore, the burglary and aggravated burglary section of “Archbold”, a tome from which I never thought I would quote, defines “building”. If we can make no reference to existing law, if every detail must be written down, redefined and spelled out, why do we have laws, and why did we take the language from criminal law when we were drafting the Bill? The definition in chapter 21-117 states:
Therefore, “Archbold” and all the comments contained therein make amendment No. 5 redundant. We have a clear definition of “building”, and it would be otiose to spell it out again in the Bill. Mr. Pound: The Bill seeks to amend the Criminal Law Act 1967, and we are referring to the Theft Act 1968. I do not disagree with the hon. Gentleman’s analysis and definitions, but would not it have been simpler to say in the Bill that the definition of “house” is the one in the 1968 Act? Had he done that, we could have saved ourselves the problem about what would happen if it were a public building, an office or any of the other myriad and marvellous structures that we have created before our eyes this afternoon. Had he thought of doing that? Patrick Mercer: The hon. Gentleman makes a good point, as always. He is a simple sailor, I am a simple soldier. We understand each other in straightforward English as we speak it. Neither of us, I am glad to say, has need frequently to refer to lawyers. Mr. Pound: Let us not tempt fate. Patrick Mercer: Not yet. However, with respect, the law is not interpreted by simple people such as us. Lawyers, whether barristers or solicitors, will understand the Bill’s phrasing in a way that I do not. I do not mean to sound over-simplistic. It would be wrong and a lie for me to say that I sat down with my pen behind my ear and prepared the Bill without expert advice—of course I did not. I wish I could, but I do not have the talent, experience or skill. However, I am reliably informed by the several QCs who assisted me in drafting the Bill that its wording takes in everything that the hon. Gentleman has suggested. If he wishes to probe me further, I fear that I am at the absolute limit of my understanding of legal language and could therefore
Mr. Pound indicated dissent. Patrick Mercer: I thank the hon. Gentleman. I have already referred to the fact that I think that amendment No. 6, to an extent, contradicts amendment No. 4. I have spent more time perhaps than I should skulking around bushes, gardens, ditches and the out-houses of other people’s houses. It is clear to me that the ability to misinterpret actions in gardens and similar areas is much greater than inside a house for no other reason than that, if darkness reigns and someone is in a garden, it is unlikely that they will be illuminated quickly and that that their intentions will become clear quickly. Inside a house, it is much more likely that a light will be put on or a torch will be shone on them. I reject amendment No. 6 not only because of the contradiction that has already been noted but because of the fact that we deliberately wish to avoid any misinterpretation. For instance, a party of army cadets might rightly and properly cross a garden by mistake, armed, in the middle of the night. Their intentions would be entirely honourable. It is a wholly different matter to try to legislate for what goes on in a garden, a field, a meadow or whatever. That is why we have crafted the Bill, and I use the phrase advisedly, as carefully as we have. We have already touched on amendment No. 7. With the greatest of respect to the hon. Member for Ealing, North, this is the one amendment that made me scratch my head, and it is the reason that I questioned him so tediously and closely about exactly what he thought of the examples of the shop owner and the babysitter. The Bill takes both categories into account. I know that the hon. Member for North Down will feel strongly on the subject, but one of the biggest examples of crime in my constituency is the breaking into places such as pharmacies and chemists, where drugs are kept, by those who steal them to sell or to use themselves. I have had any amount of representation from shop owners that the Bill should cover their premises. That is why I have been so careful to point out that this is a householders and shop owners protection Bill, although I can quite understand the criticisms. If I agree to amendment No. 7, we will not cover shop owners. We will not cover babysitters. There are a host of other examples, and I fully appreciate that. Mercifully, my son is well beyond the stage where he needs a babysitter, but I believe that the hon. Gentleman has a young son. If a babysitter in his house is charged in loco parentis with the protection, well-being and general good of his child, should that babysitter not be effected the same protection as any one of us and, indeed, as the hon. Gentleman? They should. That is why I must reject amendment No. 7. Mr. Swire: If we were to adopt the amendment, does my hon. Friend not agree that it would leave housesitters—that category of people increasingly
Patrick Mercer: As usual, my hon. Friend makes an extremely good point that had totally eluded me. In my constituency, we have a number of Royal Air Force married quarters. I do not know whether it is a good or a bad thing, but the RAF is heavily used on operations at the moment. Its pilots and air crew are incessantly abroad fighting, in my belief, for a good cause. He is quite right: those married quarters are frequently left with housesitters or quarters-sitters—whatever we call them. If we agree to amendment No. 7, those housesitters, babysitters and shop owners will not have the protection that I hope that the Bill will offer. 6.15 pmMr. Pound: That is interesting. The hon. Gentleman has posited two different sets of circumstances, one involving a commercial premises and the other involving a housesitter or babysitter. The latter deserves further consideration because I doubt that there is anyone in Committee who disagrees with him when he says that we should include those people who occupy premises by express permission of the householder. However, he has chosen to define his Bill in terms of the motive that the person has for entering the building. He has used the word “trespasser”. A person does not trespass when they go into a shop, but they could still assault the shop owner. Does he not realise that a lack of definition—if not a lack of clarity—creates problems? Shop owners will not be protected because the hon. Gentleman defines entry in terms of trespass. Patrick Mercer: Again, I am no lawyer, but I believe that, if a shop has an open door—I am looking for some help—clearly, the shop owner is inviting a person on to their property, albeit without having to articulate that. The fact that the door is open is enough. However, if an offence is then caused on that property, I believe that that can be defined as trespass. Lady Hermon: I am happy to assist the hon. Gentleman. We have spent quite a bit of time talking about the fact that there is some confusion over whether the word “building” is too wide in its definition because it covers shops. It is well established in law already that, when it comes to sentencing, there is a distinction between burglaries of dwellings and burglaries of non-dwellings, meaning shops. I am repeating myself slightly, because I have already referred to the practice direction, which was printed in 2002. There are separate guidelines for sentencing those involved with burglaries of dwellings and burglaries of non-dwellings. Column Number: 46 Patrick Mercer: I am awfully grateful to the hon. Lady. I hope that her intervention throws more light on the subject than I could, with my limited background in and understanding of these subjects. We have already touched on amendment No. 8. We are talking about any person in any house and that includes those who might be in temporary residence in a house. I have dealt with that enough already. The situation is similar with amendment No. 9. I hate to quote from this tome but in “Archbold” on page 1953, chapter 21-116— Paul Goggins: The hon. Gentleman is enjoying this. Patrick Mercer: No, I am not. I am loth to pretend to be something that I am not—although that seems to involve me 24 hours a day at the moment. Mr. Pound: Does that apply to your politics? Patrick Mercer: It is up to the hon. Gentleman to judge. “Archbold” defines trespass and entry as a trespasser in some detail. It states that
That is sufficient for the jury to decide that the person is in fact a trespasser. The hon. Gentleman can probe me as much he wishes. All I can say to him and to others on the Government Benches is that I have been given this advice by a series of extremely well versed, knowledgeable QCs, who understand these things better than me. That is the definition of trespass. If we try to define it in any other way in the Bill, that will detract from the Bill. Amendment No. 9 is therefore unnecessary and I will seek to reject it. You have been very patient, Mr. Cook, listening to my long-winded explanation of why we will resist the amendments. There are other debates to come, and I do not wish to trespass on them. The fact remains that with this Bill I have enjoyed a huge amount of sensible co-operation from hon. Members on both sides of the House. I honestly believe that the Bill enjoys the support of 90 per cent. of the population. That is what the polls tell us anyway. I do not seek to gain party political advantage. I seek to reassure ordinary citizens that they will be protected by the law, and to deter burglars from entering houses, dwellings or any building. If we can reassure and deter, it should lead to a decrease in the sort of bloody affray that we saw in Norfolk some years ago, which has left scars upon a Norfolk farmer and a Newark lad. If we can achieve that, we will have taken steps in the right direction for all parties and for any party that ends up in government. Although I respect the reasoning and the thoughts behind the amendments, I ask the hon. Gentlemen who tabled them not to press them to a vote, so that the Bill can continue unamended. Column Number: 47 Harry Cohen: The hon. Member for Newark has asked whether the amendment can be withdrawn. Before I come on to that, it was very interesting, in quoting at length “Archibold”—[Hon. Members: “Archbold.”] That is interesting, because that name is very similar to that of a horse running in next week’s Champion Hurdle at Cheltenham. Perhaps it is an omen and I should get a few bob on it. My hon. Friend the Member for Ealing, North and the Minister pointed out, as I tried to do in my contribution, that there were many anomalies and flaws in the Bill. I do not want to repeat those, Mr. Cook, as I can see that you are getting a bit irritated. The Minister said that there were difficulties with my amendment. He mentioned the point about the father who is outside and the children who are inside the building. That was repeated by the hon. Member for Newark, and I take that point on board. It shows the complexity of and difficulty in making the Bill coherent. We could argue that the Bill itself has similar difficulties. The father could be anywhere, but the burglar who is frightening the children could be escaping and off the premises, so that would create difficulties with the Bill as it stands. My amendments were probing, and if those or similar matters need exploring we will wait to see if there is an opportunity on Report. On that basis I am prepared to withdraw my amendments. |
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