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Mr. Dismore: My hon. Friend is right. The statement was welcome, as it clarified the law. As I said, I was able to obtain a number of copies—several thousand—which I distributed door to door, to people who had raised crime issues with me in my constituency. Letting people know where they stood was a far more constructive way to approach the debate than the Opposition's attempt to change the law.
Mr. Khan: My hon. Friend may wish to point out, for the record, that it is clear from the Library research paper and from other research that I have done that there are no current cases where a householder is being prosecuted.
Mr. Dismore: I am grateful to my hon. Friend for that intervention. That is exactly the case. The guidance from the Crown Prosecution Service and the statement from ACPO and the CPS have made the position much clearer and people now know where they stand.
Mr. Flello: I am disappointed that the hon. Member for Newark (Patrick Mercer) has just left his place. I had hoped to get the intervention in while he was still in the Chamber. I would be interested to hear my hon. Friend's comments on my previous intervention on the hon. Member for Newark, when I referred to the case that was cited. The individual in question was arrested and would still be arrested under the proposal in the Bill. The second intervention, which I sadly was not permitted, was intended to highlight the fact that the CPS guidance to which my hon. Friend refers would address that issue and would not allow that to happen under the current law dealing with reasonable force.
Mr. Dismore: My hon. Friend makes the point clearly. It would be helpful to the House if we looked at what the ACPO and CPS statement says. It accepts at the beginning:
By issuing the statement, the two bodies are responding to public concern about householders defending themselves. It goes on to state quite clearly:
"Anyone can use reasonable force to protect themselves or others . . . You are not expected to make fine judgements over the level of force you use in the heat of the moment. So long as you only do what you honestly and instinctively believe is necessary in the heat of the moment, that would be the strongest evidence of you acting lawfully and in self-defence. This is still the case if you use something to hand as a weapon.
As a general rule, the more extreme the circumstances and the fear felt, the more force you can lawfully use in self-defence."
It goes on to say, as we heard from my hon. Friend the Member for Rossendale and Darwen, that
Dr. Palmer:
One point that has not been explored in detail yet is that the Bill states that even grossly disproportionate force can be used if the person using that force was not aware that it was grossly
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disproportionate. Does that not open an enormous grey area, which is not present in the current law? In the current law there is the test of reasonableness that juries interpret in a reasonable way. Under the Bill, if I can persuade the jury that I was not aware that it was grossly disproportionate to stab somebody who had just walked on to my garden, I would be required to be acquitted. Is that not a very large grey area?
Mr. Dismore: My hon. Friend raises an interesting point which is to do with what the law calls mens rea. To be honest and fair to the promoter of the Bill, I am not entirely sure that my hon. Friend has construed the Bill accurately in that respect, but I hope to come to the issue in due course.
Before that intervention, I was referring to the joint statement by the CPS and ACPO, which deals with what happens if an intruder dies. It makes it clear that if a householder acts in reasonable self-defence and an intruder dies, then the householder will still have acted lawfully. However, it goes on to caution that if, having knocked someone unconscious, a householder decides to hurt or kill an intruder in order to punish them, or if a householder knows about an intended intruder and sets a trap to hurt or kill them, that householder would be acting with excessive and gratuitous force. In such cases, the householder would be prosecuted under the existing law. Even if the Bill were passed, a householder in those circumstances would still be prosecuted. Where is the additional advantage to the public from that change?
One of the concerns that has been expressed today is about what happens if the police turn up and believe the intruder rather than the householder. The statement makes it clear that
"The police weight all the facts when investigating an incident. This includes the fact that the intruder caused the situation to arise in the first place."
However, it also makes the fair point that investigations are necessary, because
"On occasions people pretend a burglary has taken place to cover up other crimes such as a fight between drug dealers."
Importantly, the police and the CPS have said that they are determined that when cases are investigated,
"they must be investigated and reviewed as swiftly and as sympathetically as possible . . . An experienced investigator will oversee the case . . . and the case will be prioritised to ensure . . . a quick decision."
"It is a fact that very few householders have ever been prosecuted for actions resulting from the use of force against intruders."
On the day before that statement was issued, the Director of Public Prosecutions, Mr. Ken Macdonald QC, who is in a sense the chief prosecutor in the country, made his position clear:
"The law is on the side of householders . . . It is only in the most extreme circumstances that householders are prosecuted for violence against burglars . . . the law understands that when people are under attack in their own homes they cannot judge precisely the level of their response . . . So long as they do no more than they honestly and instinctively feel is necessary in the heat of the moment, that will be the strongest evidence that the householder has acted lawfully. Indeed we routinely refuse to prosecute those reacting in the heat of the moment . . . So householders who have killed burglars . . . have not been
- prosecuted. Householders who have shot burglars have not been prosecuted. Householders who have stabbed burglars have not been prosecuted. Householders who have struck burglars on the head, fracturing their skulls, have not been not prosecuted."
Mr. Macdonald goes on to say that the CPS has been able to find only a handful cases in which prosecutions have resulted from domestic household burglaries.
Mr. Flello: Is my hon. Friend surprised to hear that in informal conversations with serving police officers at a level far junior to that which he has just quoted, those officers all expressed the view that cases in which a householder takes reasonable steps in confronting a burglar never even reach the point at which charges are laid, unless the householder in question brags that they were lying in wait? Police officers use their common sense when they see that people have behaved reasonably.
Mr. Dismore: My hon. Friend is right. That is the common sense required by the Crown v. Palmer and the dictum of Lord Morris, when he set out the law more than 30 years ago. The present position was best summed up by the Under-Secretary of State for the Home Department, my hon. Friend the Member for Wythenshawe and Sale, East (Paul Goggins), who replied to the debate on the Bill introduced by the hon. Member for Newark:
which I have described as the black letter law,
most Labour Members share that view—
"to allow householders to take whatever steps are necessary to defend themselves and their families . . . secondly, the leaflet explains that law in simple, straightforward terms to the general public . . . thirdly, we have the guidance against which the police and the CPS weigh each case."—[Official Report, 4 February 2005; Vol. 430, c. 1132.]
That belt and braces approach has borne fruit, which is why we have seen no prosecutions whatsoever since those changes were introduced more than a year ago.
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