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Mr. Dominic Grieve (Beaconsfield) (Con): I am grateful to my hon. Friend for defining the nature of the offence. It was suggested earlier that if someone entered premises such as a shop and committed an offence, those provisions would not apply. Is she aware that someone who enters and exceeds the term of their licence for entering premises becomes a trespasser ab initio and can be charged with burglary?
Miss McIntosh:
The whole House has benefited from my hon. Friend's astute clarification which, I hope, will
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lead to even greater support for the Bill. I asked the Home Office for the level of burglary detection in each of the past eight years. Incredibly, it has fallen dramatically. When the Conservatives left government in 1997, 23 per cent. of burglaries were detected by the police in England and Wales. As of 2001–02, that rate had reduced to 12 per cent., and the detection rates for offences of burglary recorded by the police in England and Wales was only 13 per cent. in 2004. Right hon. and hon. Members will know that many people who report burglaries, particularly of vehicles, are simply given a police number. Those burglaries are not investigated or detected, so the offenders are never brought to book. Even more worryingly, only 3.6 per cent. of defendants were convicted of burglary in the courts in 2004–05. In the same year, only 1.6 per cent. of defendants were sentenced to immediate custody or given a custodial sentence for burglary.
What message are we as legislators giving victims and, indeed, potential burglars other than suggesting that burglary is completely risk-free? To receive a criminal sentence and be designated a criminal someone must be accused, and their crime must be detected, recorded and prosecuted. The figures show that that is simply not happening. In clause 2, I seek to extend the provisions of the Bill to Northern Ireland, and I pay tribute to my hon. Friend the Member for Newark, because when his Bill was in Committee he said that such measures should be relevant to Northern Ireland as well as to England and Wales. I would like the provisions of my Bill to extend to Scotland, as I am qualified as a Scottish advocate, albeit a non-practising one. I hope to pursue that proposal if I am fortunate enough to see my Bill proceed to Committee. Under proposed new subsection (1A), a property owner is not guilty of an offence unless they use "grossly disproportionate" force and unless the excessive nature of that force is apparent to them.
Mr. Owen Paterson (North Shropshire) (Con): Can my hon. Friend confirm that the phrase "grossly disproportionate" originated in the Government's own amendment to civil law?
Miss McIntosh: My hon. Friend has been listening closely, as the Criminal Justice Act 2003 sets out the test for an offence to be grossly disproportionate. The Government had to revisit the issue in the light of the claim by Brendan Fearon against Tony Martin in the constituency of my hon. Friend the Member for North-West Norfolk. Brendan Fearon was granted legal aid, reportedly to claim compensation of £15,000 for the injuries that he received. I am delighted that in September 2003 the case was settled out of court when Brendan Fearon dropped his claim and Tony Martin therefore dropped his counter-claim. Such cases make a mockery of the law. I am arguing, with the support of my hon. Friends, that we need a consistent test. Burglars should not be able to sue us for damages that we may inflict on them when they intrude and trespass on our property and commit a criminal act so, under the Bill, there is a higher test of grossly proportionate force for the householder.
Mr. Bellingham:
My hon. Friend has alighted on a very important point indeed. When Brendan Fearon sued Tony Martin for damages for the injuries that he
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sustained, that provoked outrage. Does my hon. Friend agree that any burglar who breaks into a property and commits a serious criminal offence should not be able to profit in a civil court?
Rob Marris (Wolverhampton, South-West) (Lab): Brendan Fearon has not profited.
Miss McIntosh: Brendan Fearon would have profited if his civil action was successful. I am delighted that my hon. Friend the Member for North-West Norfolk has clarified the point for us.
The arguments for the Bill are forceful. Burglary is virtually risk-free, and detection rates are at a 25-year low. Fewer than one in seven burglaries are cleared up by the police. Only three in 100 burglaries result in conviction. Public fear of crime in general and burglary in particular has increased, yet police in rural areas are severely stretched. My right hon. Friend the Member for Haltemprice and Howden (David Davis), the shadow Home Secretary, said:
"The term 'grossly disproportionate' was actually introduced by the present government in 2003 when it amended the civil law. I believe that it would be beneficial to amend the criminal law act in the same way, restoring the balance to the victim rather than the criminal. At a time when just three out of every one hundred burglaries results in a conviction, people need to be able to feel that they can protect their lives and property."
Miss McIntosh: In conclusion, I am grateful for the wide support that the Bill has received.
Dr. Palmer: On a point of order, Madam Deputy Speaker. Is it in order for the hon. Lady to strangle debate by giving way only to Conservative Members?
Madam Deputy Speaker: It is entirely the decision of the Member making the speech as to whether they choose to give way or not.
Miss McIntosh: I am mindful of the wide interest in the Bill, Madam Deputy Speaker, and I want to allow as many colleagues as possible to speak. I have been generous in giving way to Government Members.
I thank everyone who supports the Bill in every part of England, Wales and Northern Ireland. I thank the Federation of Small Businesses, the Security Institute, the National Neighbourhood Watch Association and the former burglar Bob Turney, who has lent his not insignificant expertise. I humbly submit that the Bill is very much needed. It would extend to both residential and commercial property owners the right to defend their lives, property and belongings without fear of prosecution. It would allow people to take action only where that was deemed not to be grossly disproportionate to the threat that they faced and, in such circumstances, they would not face criminal charges. It would bring criminal and civil law into line, restoring the balance in favour of the victim rather than the criminal, and it would increase protection for people throughout England, Wales and Northern Ireland, who expect the House to vote in favour of its provisions.
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10.19 am
Dr. Nick Palmer (Broxtowe) (Lab): Initially, I shall ask some of the questions that the hon. Member for Vale of York (Miss McIntosh) did not allow me to put during her own presentation. The first is that the crucial distinction made by her Bill by comparison with the current state of affairs is to replace the test of reasonableness with the test of gross disproportionality. She was asked by the hon. Member for Wellingborough (Mr. Bone), who left the Chamber immediately afterwards, what would happen if his wife set the dog on an intruder. The hon. Lady responded—with respect to her—evasively, saying that that was a matter for the courts to decide. Is that not a classic example of the state of uncertainty, about which she and her hon. Friends complain, in the current situation?
At present, if the hon. Lady were to break into my house and I had to decide how far I could deter her, I would have to consider what would be deemed reasonable. Under her Bill, I would have to consider what was grossly disproportionate. It is possible to imagine situations where behaviour is unreasonable but not grossly disproportionate, or cases where it is grossly disproportionate but not unreasonable.
Let us take, for example, the case of the British tourist who, in one of the southern states of America, one dark night got lost. He went up the path to a remote house and wanted to ask the way. As he approached, the nervous householder, who I believe had been burgled several times, thought he was another intruder and shot the tourist dead. We could all agree that that was grossly disproportionate—[Hon. Members: "Some of us would."] Unlike the hon. Lady, I shall be glad to give way if she wishes to intervene, but I hope she would agree that that was grossly disproportionate.
Could we also say that that was unreasonable? Looking at the case, at least through British eyes, we would say, yes, it was unreasonable. But suppose the householder had not shot the tourist dead, but merely wounded him. An American court, and, I submit, a British court might in that case have said, "Well, this is grossly disproportionate—using a firearm to attack somebody who has not yet done anything worse than walk up the drive—but is it unreasonable?" One could argue that with a history of burglaries, it is understandable if the householder feels nervous.
Here we have a case where the householder would be prosecuted under the hon. Lady's Bill, but not under the current law. Her Bill would replace one uncertainty with another uncertainty. That is being done not to resolve the uncertainty—if that was her intention she would merely adopt the formulation that the householder can do anything on his own premises—but to seek partisan advantage, by pretending to bring forward a different form of words which in practice would do nothing to reassure the householder that they would be able to operate. The householder would have exactly the same dilemma: to judge what a court might think of his or her behaviour—
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