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Mr. Dismore: My hon. Friend makes an important point. He is right that when we consider self-defence, we have a mixed objective and subjective test. There is a slightly different test in the civil law, and I hope to refer to that shortly because the simple alignment of civil and criminal law is prayed in aid by those who support the Bill. However, the measure set out in the Bill is an objective test, so we are all over the place. Are we considering the mind of the person who commits an attack on the alleged criminal, the general reasonableness test, or a mixture of the two? The whole position will be very different depending on the circumstances in which an attack takes place.
Mr. Khan: Does my hon. Friend agree that if those who support the Bill are serious about getting it on to the statute book, it is disappointing that such matters have not been clarified since the last time that the House considered such a measure?
Mr. Dismore: My hon. Friend is absolutely right. A series of criticisms were made on Second Reading of the previous version of the Bill that was promoted by the hon. Member for Newark. I am surprised that the opportunity was not taken in the intervening period to get some of the tackle in order and produce a Bill that at least addressed some of those problems, which might have found more favour in the House today.
Mr. Flello: Does my hon. Friend agree that the existing legislation works and is sound, but is not widely understood by the public? I am sad that the promoter of the Bill, the hon. Member for Vale of York (Miss McIntosh), is not in the Chamber and is thus unable to hear what are hopefully my pearls of wisdom. Does my hon. Friend thus agree that Opposition Members would have done better to direct their energies at making the public more aware of the existing legislation and how it can be used to protect the householder and property owner?
My hon. Friend is right. The Bill has effectively suggested to people that they have a weaker right to defend themselves than they actually do. It is confusing the position to such an extent that people do not know where they stand. If Opposition Members had been acting responsibly, they would have given out copies of the CPS leaflet in their constituencies. I distributed a large number of those leaflets so that people would know where they stood if they faced such
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a situation. It would have been rather more constructive if Opposition Members had explained what the policies of the CPS were and what the law was, instead of trying to frighten people into thinking on the one hand that they cannot defend themselves, and on the other that the country is rife with burglary.
Janet Anderson: Does my hon. Friend agree that this is yet another example of Her Majesty's official Opposition ignoring the advice of the police? We know that the Association of Chief Police Officers does not think that the Bill is necessary, so Opposition Members are behaving in the same way in which they did when they ignored the advice of the police about the Terrorism Bill and refused to support the Government.
Mr. Dismore: My hon. Friend is absolutely right. I made that point a little earlier, but perhaps she was not in the Chamber at that stage. The Opposition have operated something of a double standardI put that neutrally, bearing in mind Madam Deputy Speaker's earlier constraints on the use of emotive language in the debate.
Mr. Khan: My hon. Friend explained the sensible and mature way in which he behaved as an MP by ensuring that his constituents were aware of the CPS guidance. Is he talking about the joint public statement of the CPS and ACPO that was issued earlier this year? He has not yet referred to guidance in his speech, so as I prepare for my speech, will he confirm whether he will do so?
I was talking about the black letter law expounded by Lord Morris, who was explaining the common law in the case of Palmer. Basically, it is a common sense test, and who can object to that? Many other myths have developed. In paragraph 19.42 in the section on offences against the person in "Archbold", the old rule that a man who is attacked must retreat as far as he can has disappeared. Whether the accused retreated is only one factor for the jury to consider when determining whether force was reasonably necessary. Moreover, the same paragraph states that there is no rule of law that a man must wait until he is struck before striking in self-defence. If another person strikes at him he is entitled to make his blow first if it is reasonably necessary to do so in self-defence. The existing law therefore goes further than most people think.
Moreover, if the defence of self-defence is offered, the burden of disproving it is on the prosecution, not on the defendant facing trial. "Archbold" says that where such a defence is offered, the burden of negativing it rests on the prosecution. If, on consideration of all the evidence, the jury is convinced of the innocence of the prisoner"Archbold" uses old terminology because it is citing an old caseor is left in doubt as to whether he was acting in necessary self-defence it should acquit. In the Crown v. Abraham the Court of Appeal said that a judge should deal with the issue by telling the jury that someone who acts reasonably in self-defence commits no unlawful act. Just as it is for the Crown to show that the plea of not guilty is not acceptable, so the Crown
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must convince the jury beyond reasonable doubt that self-defence has no basis in the present case. There are therefore many safeguards in the existing law.
We must also look at the charging standard text used by the CPS, which was published on 26 November 2004 and tells CPS staff how they should approach such cases. Prosecutors must consider all assaults in the context in which they were allegedly committed. Particular care must be taken in dealing with cases of assault where the allegation is made by a "victim" who, at the time, was engaged in criminal activity himself. An example relevant to today's debate is a burglar who claims to have been assaulted by the occupier of the premises concerned. Prosecutors are reminded that it is lawful to use reasonable force in the following circumstancesself-defence; to defend another person; to defend property; to prevent crime; and to lawfully arrest someone. Where the use of force in such circumstances is reasonable the assailantthe person about whom we are concernedhas an absolute defence, and charges relating to the assault should not be brought. Paragraph 5 of the CPS charging standard text therefore sets out the position in black and white.
The courts have shown that both questions are to be answered on the basis of the facts, as the accusedthe householderhonestly believed them to be. To return to my exchange with my hon. Friend the Member for Tooting, the test is a subjective one. The issue of whether a reasonable person would regard the force used as reasonable or excessive is the subsequent question, not the primary question.
Mr. Khan: My hon. Friend gave figures for the decreasing number of burglaries in the past 20 years. Last year, there were 943,000 burglaries, which is the lowest figure for 20 years. There have been approximately 10 million burglaries in the past 15 years, but there have been only seven cases in which a householder has been prosecuted for defending himself against an intruder. Does that not confirm that the CPS is applying the guidance that he cited correctly?
Mr. Dismore: My hon. Friend is basically right, and I hope that we can analyse some cases in more detail later. Many of the cases that have been prayed in aid by the Opposition predate the guidance in the CPS charging standard text, which was published in November 2004. They certainly predate the joint statement by the CPS and ACPO, which was first published in January 2005 and subsequently produced as a leaflet.
I am not aware, and I will happily give way to any hon. Member in the Chamber from any quarter who has information to the contrary, of a single case that has been prosecuted against a householder defending himself since those new guidelines and the joint statement were published.
I am sure my hon. Friend is aware that the leaflet to which he referred, the joint statement from the CPS and ACPO, makes it clear that householders do not have to wait to be attacked before they can take action. It states:
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