Standing Committee C

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Standing Committee C

The Committee consisted of the following Members:

Chairman:

Mr. Peter Pike

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

 
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Tuesday 5 April 2005

[Mr. Peter Pike in the Chair]

Criminal Law (Amendment) (Householder Protection) Bill

9.30 am

The Chairman: This will probably be the last Committee that I will chair, and we begin by discussing Government amendment No. 10.

Clause 1

Amendment of the Criminal Law Act 1967

The Parliamentary Under-Secretary of State for the Home Department (Paul Goggins): I beg to move amendment No. 10, in clause 1, page 1, line 8, leave out from ‘force’ to end of line 11 and insert

‘if the degree of force used was reasonable in the circumstances.’.

May I welcome you to the Chair, Mr. Pike? In light of your comments, I thank you for the huge contribution that you have made during your time in the House representing the proud town of Burnley, which has a football team with huge aspirations. You are a great supporter of that team. I also thank Mr. Cook, who acted speedily after our last attempt to debate the Bill to ensure that we had another opportunity to do so. I am sure that we will show in our deliberations that we intend to make speedy progress in consideration of the remaining matters.

Amendment No. 10 takes us to the heart of the Bill by proposing that we restore to the Bill the test of reasonableness that applies under section 3 of the Criminal Law Act 1967. The hon. Member for Newark (Patrick Mercer) is proposing to allow the use of force that is less than grossly disproportionate in defence of persons and property. The amendment takes us to the heart of the difference between the new test that he proposes and the test enshrined in the 1967 Act.

We should begin by reminding ourselves of matters on which the whole Committee agrees in relation to burglary, which is a horrendous experience for anyone to go through. It is a horrendous crime. People suffer enormous trauma when their house is burgled. We have shared personal experiences in the Committee, and our constituents have talked to us about it. We should particularly acknowledge that people feel vulnerable and under threat when their home is broken into in the middle of the night. There is no difference of opinion between hon. Members on that.

Nor is there any difference between us on the need for the householder to be able to act in self-defence with confidence that the law is on their side. We all acknowledge that the law needs to be understood and that the householder needs to be able to act with confidence. The key question is whether the proposal
 
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at the heart of the Bill to institute the new test of less than grossly disproportionate gives the householder any more confidence.

Lady Hermon (North Down) (UUP): On a personal note, may I say how sad I am that you will be leaving the House, Mr. Pike?

Will the Minister outline the evidence that the public and home owners are more confident about dealing with burglars entering their homes after the so-called clarification issued by the Home Office? What evidence is there that they are more confident now than they were before the Home Office’s clarification?

Paul Goggins: There is emerging evidence that the public are generally more confident in relation to crime and believe that the police are acting more urgently on their behalf. In relation to this specific issue, it is too early to have any definitive evidence. However, the fact that the hon. Member for Newark has raised the issue in his private Member’s Bill, the fact that we have reviewed the matter, the fact that the leaflet has gone out, the fact that the Crown Prosecution Service and the police have urgently reviewed their procedures, and the publicity that has accompanied all of that will help to reassure the public that the existing law is on their side and that change is not required.

Mr. Hugo Swire (East Devon) (Con): May I add my own plaudits for your chairmanship and your membership of this House, Mr. Pike? The Royal Marines—I represent the commando training camp at Lympstone—will also be losing a champion and a friend. I know that you have been a stalwart member of theirs and I see that you are wearing their tie.

Will the Minister concede that without this private Member’s Bill the legislation would not have been re-examined? It has taken an Opposition private Member’s Bill to get the Government to concentrate on this difficult issue.

Paul Goggins: It has been acknowledged by the House generally and in Committee that the decision by the hon. Member for Newark to raise this issue in a private Member’s Bill has started a debate in the House and in the country. The Government have responded. My right hon. Friend the Prime Minister set in train a review, and the conclusion is that we believe that the current law is strong, robust and on the side of the householder. The disagreement is with the measure that the hon. Gentleman proposes. I acknowledge that the fact that he has raised the issue for debate and that we have discussed it is helpful. It has raised the profile of the issue. I hope that, even if he is not successful and the Bill does not pass into legislation, householders in all our constituencies will feel more confident in the law as it stands. In that sense, Parliament will have done a service to law and order and to confidence in it.

Patrick Mercer (Newark) (Con): I bring this point to the Minister’s attention not as a criticism, but merely to help. I recently visited the police station in Dewsbury, which may be known to him. I spoke to the chief inspector there, who had received no notification
 
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of the leaflets and did not know of their existence. There were none in his station and he was totally unaware of the Government’s efforts to explain how things stand in practice. Clearly, one of the main outlets for the leaflet in the town of Dewsbury was to be the police station, but there were no leaflets there and the police were completely—I use this term advisedly—ignorant of the subject. If we take Dewsbury as an example, I fail to see how people can be reassured by that.

Paul Goggins: Clearly, I take the hon. Gentleman at his word. I think that, if the police officer in question were aware that he was visiting and knew the importance that he attaches to this issue, he could have done a bit of homework in advance and made himself aware of the issues. Every police station and police officer, of whatever rank, should know precisely what the law says and what the rights of householders are under current legislation. Initially, 100,000 leaflets were printed. Within a few days, another 200,000 were printed. As we all know, the leaflet is available on websites, through citizens advice bureaux and so on. There is no excuse for any police officer not knowing about the leaflet and the new guidance that has been issued. I hope that this debate will help to get the message out that we expect the police and the Crown Prosecution Service to have an active and thorough knowledge of these issues.

Lady Hermon: I am grateful to the Minister for his generosity in taking so many interventions, including two from me. Will he answer two small points? First, were any of the leaflets distributed in Northern Ireland? We should bear it in mind that, in the absence of any Assembly, this place is responsible for the criminal law in Northern Ireland.

Secondly, will the Minister explain again the Home Office guidance? The Home Office issued a press release on 1 February, in which the Home Secretary is said to have said:

“Ken McDonald, the Director of Public Prosecutions, has made it clear that householders will only be prosecuted if they use very excessive force in defending their home against intruders.”

However, the press release also states:

“The Attorney General Lord Goldsmith said . . .‘The guidance makes clear that the law supports the rights of householders to protect themselves, their families and their property against intruders by the use of reasonable force.’”

In the same press release, there is a contradiction between the advice given by the DPP, which is that prosecutions will take place only if very excessive force is used, and the advice of the Attorney-General, who says something quite different. Can the Minister reconcile those two statements?

Paul Goggins: I do not think that there is a contradiction in the press release. Stating that reasonable force is permitted acknowledges the law as it stands. Force must be reasonable. As long as it is reasonable, the householder is acting with the full force of the law on their side. Ken Macdonald’s use of the phrase “very excessive” is important. We must recognise the emphasis that he is placing on the practical judgment that he has made on the question of
 
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prosecution. In practice, reasonable force can sometimes mean considerable force. I shall come to that later in my speech. “Reasonable” can mean “considerable”. In that press release, Ken Macdonald is trying to get across the fact that only very excessive action would be outwith the law. I therefore do not see a contradiction between the two. One is trying to encapsulate the current legislation and the other is trying to state what the judgment would be in practice. Taken together, they should reinforce the confidence of individual householders.

Chris Grayling (Epsom and Ewell) (Con): Will the Minister give way?

Paul Goggins: I would like nothing more than to give way to hon. Members, so that they can ask questions.

Chris Grayling: I am sure that the Minister understands that courts of law can take decisions based on a very fine judgment—on their interpretation of the law as set out by Parliament and by our Law Officers. The Minister has just described a situation in which the DPP might decide to go ahead with a prosecution on the basis that, in the judgment of the CPS, very excessive force was used. However, the court could judge that analysis to be wrong and decide that the force that was used was not very excessive, but went slightly beyond reasonable. The Minister is potentially creating a world of legal confusion.

Paul Goggins: There is no confusion at all. The CPS has to make a decision, based on the evidence that it has, on whether a prosecution should take place. It has to decide whether a particular case is likely to be proved, and whether it is in the public interest to proceed with it. The DPP has made it clear that, for a prosecution even to begin, there would have to have been an excessive use of force. When that judgment has been made—in a very small number of cases, there have been prosecutions where the force was felt to have been excessive—it is then for the court to decide. If the court takes a different view from the prosecutor—that the force used was reasonable—the person will be acquitted. Indeed, in about half the cases that we know of, that is precisely what happened. Our justice system stands or falls on the view of the court and the jury as to whether a particular case is proved.

I therefore do not see any contradiction. It is the job of the Crown prosecutor to issue the guidance, so as to make clear the circumstances in which a prosecution would be brought. The court should then take a decision on whether a case is proved. There is not confusion but clarity about what the law says and about what the CPS will do in practice.

Mr. Frank Field (Birkenhead) (Lab): If we look at the matter from the point of view of the person whose property is being burgled, rather than considering what the police or the courts might think, does the Minister not agree that most Labour voters are like all other voters in thinking it unreasonable that anyone should enter their property? Those of us who have been burgled feel very unreasonable in tackling the person that so affronts us in that way. If there is any
 
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criticism of the Bill, which I wholeheartedly support, it is that it is not tough enough on the burglar—it is certainly not too tough.

Paul Goggins: Again, I make it clear that my starting point in the consideration of the Bill is to acknowledge the horrendous experience that people have when their home is burgled. It is unreasonable, illegal and outrageous for people to go into other people’s homes to threaten them, to steal their property and to violate their home. That is completely wrong and unreasonable. From the review that took place and from our debates, it has clearly emerged that the use of reasonable force in such circumstances can imply the use of considerable force. Indeed, in the leaflet, the question is asked, “What if the intruder dies?” Prosecution is not automatic even if the intruder dies, because the use of force in those circumstances might need to be considerable to deal with the threat posed by that intruder.

9.45 am

Mr. Swire: Does the Minister not concede that if he were to agree with my hon. and gallant Friend’s Bill, that would go some way towards addressing a widespread belief that the Government, seven years after saying that they would be tough on crime and tough on the causes of crime, are soft on the perpetrators of crime and tough on the victims of crime? If the Minister would concede the salient points that my hon. and gallant Friend has made throughout, and that the right hon. Member for Birkenhead (Mr. Field) made just now, we would all be winners.

Paul Goggins: I do not accept that point of view. I have made it absolutely clear that the Government regard all crime, particularly burglary and personal attack, as horrendous and a high priority. As a result of the actions that we have taken and the activities of the police, burglaries have gone down by 31 per cent. since 1999. People are less likely to be a victim of burglary than at any time in the past 20 years. We take that seriously: we have acted on the problem and have begun to see a real difference. Just because we do not accept the arguments of the hon. Member for Newark does not mean that we do not take this seriously.

I wish to make progress now, Mr. Pike—I am sure that you will be pleased to hear that—but I look forward to hearing the hon. Member for Newark explain how his new definition will take us any further forward in practice. As I shall explain, the issue of reasonableness, and its understanding within the law, makes it clear that the law is on the side of the householder.

Let me list some advantages in retaining the current use of reasonableness, which would be the effect of my amendment. First, the term “reasonable” is understood by the Crown Prosecution Service, the police and the whole justice system. It has been developed through common law and is enshrined in the Criminal Law Act 1967. It is worth reading into the record the definition in that Act:

 
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“A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.”

Force is reasonable if it is used in preventing a crime or detaining a person who has perpetrated a crime. The test of reasonableness is enshrined in our legislation and is understood by the justice system.

Secondly—this is a critical point that we have already debated, both on Second Reading and earlier in Committee—the test of reasonableness provides clarity and consistency on what happens inside or outside someone’s home. We used the example of a young woman subjected to a horrendous sexual attack. Wherever she is—in her home or in a public place—she has the right to use all reasonable force necessary to deal with her assailant. We certainly do not want different rules applying inside or outside, and adding confusion to the law. She should be able to use considerable force, which in those circumstances would be reasonable, to deal with her assailant. I am genuinely concerned that introducing a new test for what happens inside a home, as opposed to outside in the community, would produce confusion in the law.

Thirdly—I have made this point, but shall repeat it—a response can be at the same time reasonable and considerable. If a householder is faced with a giant of a man—6 ft 5 in tall—who is clearly ready to use considerable force, the use of force to deal with that assailant would have to be considerable. However, it could still be reasonable in the eyes of the law. As is clear from the definition that I gave, reasonable behaviour could allow someone to be proactive and go on the attack. They do not have to wait to be attacked by the assailant, and can take action to try to prevent them from being attacked. That is all made clear in the Crown Prosecution Service guidance and by the Director of Public Prosecutions, whose comments are worth reading into the record. He said:

“the law is on the side of householders. Being burgled is a frightening experience and householders who react instinctively and attack intruders will only be prosecuted if they use very excessive force. It is only in the most extreme circumstances that householders are prosecuted for violence against burglars.”

It should be hugely reassuring that not only does reasonableness in the eyes of the law mean that someone can use considerable force if necessary, but that those in charge of our prosecution service understand that.

The Committee understands the need for householders to feel confident that the law is on their side, and if that emerges from our debates, it will be a useful product of our deliberations. The leaflet published by the Crown Prosecution Service and the police has helped to clarify matters. Huge numbers of copies of the leaflet are available from the Home Office website on the internet and from local and national advice agencies, and it makes it absolutely clear that the law is on the side of the householder.

I repeat that because of the Government’s actions and because the police treat it as a high priority, the level of burglary has fallen by 31 per cent. since 1999. People are less likely to be a victim of burglary than at any time over the past 20 years, and that is an
 
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important step forward, but the unthinkable may happen and someone’s house may be burgled during the dead of night or in daytime. It is important that the householder knows that, if that happens, the law is on their side.

In conclusion, I can do no better than to quote Tony Martin’s barrister, Anthony Scrivener, who said that the law is

“simple and . . . overwhelmingly in favour of the householder”.

Given the representations that he made on behalf of his client, for him to conclude that should leave us in no doubt that a test of reasonableness is on the side of the householder. Therefore, I want reasonableness to be retained instead of adopting the new test proposed by the hon. Member for Newark.

Patrick Mercer: May I welcome you, Mr. Pike, to the Chair and thank you for all that you have done in a number of capacities? I particularly thank you for standing in today to help us through what I trust will be the last phase of the Committee. I should also point out that I know how much the Royal Marines appreciate your support and all that you have done for that noble and gallant corps over the years.

I thank Labour Members for being here and the Minister for his civilised and, as always, urbane presentation. It is also nice to see such crowded Opposition Benches. I wish that we had not had to come back for this sitting. Had the Government been able to swell their numbers slightly at our last sitting, we would not be here, but I am most grateful to everybody for coming to discuss the Bill.

The Minister carefully and clearly made the point that his amendment goes to the heart of my Bill. It does not do so at all; it eviscerates and tears the guts from my Bill, which is exactly what he intends to achieve. I shall be extremely brief because I laid out my stall on Second Reading. He is familiar with my arguments, and I will merely make one or two points that I hope will make a clear and compelling case for why the test of “grossly disproportionate” must be superimposed over the idea of reasonable force.

First and foremost, the phrase “grossly disproportionate”, as the Minister well knows, has been borrowed from legislation in civil law. We already have the test of gross disproportionality in civil law, and he will be fully aware that that was brought in on the back of the Tony Martin case. He has used the Tony Martin case helpfully. I do not want to go into it in too much detail, but I wonder how the quote from Tony Martin’s barrister, which the Minister used, compares with the comment by Brendon Fearon, one of the perpetrators, who was not shot, killed and executed—I use the phrase advisedly—but shot and wounded. He comes from Newark and is one of my constituents. When the Bill first saw the light of day, he was interviewed by that noble organ the Newark Advertiser.

The Chairman: We buy it every week.

Patrick Mercer: I am most grateful. I am sure that that will swell the sales hugely.

 
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When Brendon Fearon was interviewed about the Bill, he said—I am paraphrasing—that a change in the law would deter the sort of acts in which he had been involved. He is a convicted criminal, saying that if the law is changed in favour of the householder or shop owner, rather than the intruder or burglar, he would regard that as a distinct deterrent.

Harry Cohen (Leyton and Wanstead) (Lab): What did Brendon Fearon mean by that? Did he mean that the law should be changed to allow a householder to kill a burglar, or that he would not have attempted a burglary if a householder could kill a burglar? That is not what the hon. Gentleman’s Bill is about, so what does he think Brendon Fearon meant?

Patrick Mercer: Clearly, it is difficult for me to put words in the mouth of Brendon Fearon, and many other people have observed that difficulty, too. However, I believe he meant that the law is currently biased in favour of the burglar or intruder, and that the risk of imprisonment or physical harm lies with the householder or shop owner, rather than with the burglar. I believe that he meant that if the law is changed, that would form a deterrent.

I have received huge support from the police across the nation, and they have made it clear that if the Bill is changed, and the test of gross disproportionality is moved from civil to criminal law, and the same area of law has a single test rather then two separate tests, that would deter burglary. If it does so, the concomitant would be to deter the likelihood of bloody confrontation within the house.

Mr. Kevan Jones (North Durham) (Lab): In the Tony Martin case, surely Mr. Fearon was traumatised by the events. The fact is that Mr. Martin stuck a shotgun in somebody’s back at point-blank range and pulled the trigger. That may deter that individual from intruding again, but surely killing an innocent person in those circumstances does not make it right in a just society.

Patrick Mercer: I could not agree more. I am rarely in disagreement with the hon. Gentleman, and I agree with him now, as usual. If he had attended the previous Committee sitting, he would have heard me say the same thing, but the Bill would not give Tony Martin a defence in any shape or form. Had Bill been an Act and had Tony Martin been tried under it, he would have been found guilty of disproportionate behaviour that was way beyond reasonable force.

I refer the Minister to the leaflet and repeat that it has not been properly distributed. The Home Office has a habit of failing to distribute leaflets correctly, such as the counter-terrorism leaflet, and I like to think that I played a small part in provoking the Government to issue that last summer. However, 1.5 million households, and police stations up and down the country, have yet to receive this leaflet.

The Minister highlighted the column of the leaflet with the heading:

“What if the intruder dies?”

The bottom line of the column says:

 
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“You would be acting with very excessive and gratuitous force and could be prosecuted.”

If the phrase “reasonable force” is adequate, why is that not in the leaflet, and why did the new Metropolitan Police Commissioner say on the “Today” programme on 2 February:

“I’m not sure that the wording does go far enough . . . I thought reasonableness was quite a difficult concept at 4 o’clock in the morning in your kitchen. Whereas, something as stark as gross disproportionality did seem to me to be clearer”?

That is England’s senior police officer. He clearly supported a change in the law when he said:

“something as stark as gross disproportionality did seem to me to be clearer.”

I find that terribly compelling. Convicted criminals, professional police officers and an overwhelming number of people responding to polls seem to support what I am saying. The Minister’s duty is to listen to the voice of the people, and the voice of the people has made it clear that these changes must occur.

10 am

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Prepared 6 April 2005