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Mr. Khan: My hon. Friend gave the example of a householder making an innocent mistake in the absence of mens rea. Is not it another problem that the Bill will lack the risk jurisprudence and case law we already have
 
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under section 3 of the Criminal Law Act 1967? The new subsection (1A)(b), which talks about what

to the householder, compounds that error? Before, a subjective element was required, and that is missing here.

Mr. Dismore: I am not sure I entirely agree. If section 3 of the 1967 Act were to be amended, the new subsection (1A)(b) would, as I read, it provide an objective rather than a subjective test, in that it suggests something "ought" to have been apparent to the person using force, rather than relying on what that person believed.

Chris Bryant: I think I agree with my hon. Friend the Member for Hendon (Mr. Dismore) rather than my hon. Friend the Member for Tooting (Mr. Khan) on that point. However, the point surely is that in using the terms "proportionate" or "disproportionate", we do not ascertain what the response would be proportionate or disproportionate to. Is it proportionate or disproportionate to the amount of fear felt by an individual, or to the actual force used, or to the force that might possibly have been used? Surely that is a problem in the Bill.

Mr. Dismore: My hon. Friend is correct, and I hope to explore that issue later. The problem is that there is no common law interpretation of those terms, and nor is there any guidance in the Bill. Nor, for that matter, was there any guidance in the Criminal Justice Act 2003, which introduced the test into civil law, and which has been prayed in aid by the Opposition as they have made their proposals today.

Jim Dowd: To pursue the issue raised by my hon. Friend the Member for Rhondda (Chris Bryant), if there is no legal definition of "disproportionate", is there any legal definition of "grossly"? If we have no definition of "disproportionate", what is "grossly disproportionate"?

Mr. Dismore: My hon. Friend is absolutely right to raise that. I was construing the phrase "grossly disproportionate" jointly, but one can consider it disjunctively as well, which creates two questions. As far as I am aware, there is no guidance in the common law, and there is certainly none in the Bill or any other statute, on the definition of either term. Of course, it is bizarre to say that people should use disproportionate force, never mind grossly disproportionate force. The Bill would endorse people doing something disproportionate either to their fear or to the level of the attack they experienced, and that seems, as my hon. Friend the Member for Stoke-on-Trent, South said, to be a licence for vigilantism.

Mr. Khan: Are there not additional problems with "grossly disproportionate"? The concept is completely alien to the European convention on jurisprudence, which refers to proportionality and disproportionality, not "grossly disproportionate". Secondly, there is the reference to the Criminal Justice Act 2003 in that
 
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context. "Grossly disproportionate" applies in the civil context, where the burden of proof is quite clearly different from that in criminal law.

Mr. Dismore: My hon. Friend makes a good point. I hope to explore the difference between civil and criminal law later in my remarks. An important issue has been raised by the Opposition when they say, "We are only aligning criminal law with civil law." In fact, they are not. Weird and strange anomalies are created. The differences between the criminal and civil law systems must be explained if we are to ensure that the House has all the facts and arguments before it before deciding whether to give the Bill a Second Reading.

Clause 1 introduces new subsection (1A) to section 3 of the Criminal Law Act 1967 by referring to the definition of "person". There follows the issue of phraseology.

Jim Dowd: The proposed new subsection reads:

Will my hon. Friend enlighten us about what would happen if someone set a dog upon a supposed intruder? The dog would be using the force, but the person would have some control over the dog—or would they be held not to have that control?

Mr. Dismore: My hon. Friend raises an interesting series of questions by his intervention. In general terms, I think that the dog would be seen as a weapon, if it had been deliberately set on the burglar by the owner. There would then be the argument about whether the dog was, for example, a chihuahua, or a bull mastiff or a pitbull terrier. The answer might be different in those cases.

The position becomes even more complicated. Let us suppose that the dog of its own volition decides to sink its teeth into the burglar's trousers, without it being set upon the burglar by the owner who uses the force. There is nothing in the Bill that amends any of the laws relating to dangerous dogs legislation, which was controversial before I became a Member of this place. The Animals Act 1971 applies to the issue of whether the dog was acting lawfully or unlawfully. My hon. Friend has raised some interesting questions, which go way beyond the Bill that is before us.

Dr. Palmer: If no living creature is involved but the person has set an automatic defence, I think that my hon. Friend would agree that that is an indirect use of force by the person who set the mechanism in place. If that person had reason to fear serious assault—let us say by terrorists—but the mechanism went off to injure someone who had committed a quite harmless trespass, does my hon. Friend think that under the wording of the Bill it could be claimed that although the setting off of the mechanism was clearly grossly disproportionate, given that the intruder had been blown up, for example, it could not be held reasonably to be a parallel? The person would not have been there at the time. An automatic mechanism had been set for a real threat, although it had gone off for some minor occurrence.

Mr. Dismore: My hon. Friend makes an interesting point. The law in relation to setting a trap, as it stands,
 
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is clear. We should not do it. That is not to say that we cannot take steps physically to harden a property against intruders. Any physical hardening, in so far as it may cause injury, should be apparent. It should not be a trap. The law goes the other way, perhaps, in that it encourages people to have window locks, burglar alarms and so forth. A burglar alarm is a trap but there were the man-traps that we see in Victorian films, catching the poacher. Such traps clearly would be a trap and would be illegal. If I am wrong about that, what happens where the man-trap is in the grounds of a property rather than inside the building? We end up with a completely different set of circumstances.

If the man-trap is in the grounds of the castle, it would be caught by the existing law of reasonable force and clearly would not be protected. If it is inside the building, I suspect that it would probably be protected because the response is a trap and it is not for the purposes of the Bill. An interesting question has been raised and it is one that may have to be explored in more detail in Committee, should the Bill go that far.

Mr. Flello: My hon. Friend has raised some further thoughts in my mind. What if someone had set a device designed to give a mild electric shock to an intruder at a level where no harm would be expected but the intruder had a heart condition and the shock was sufficient to trigger a heart attack? Under the vigilante Bill as it stands such a system would not be disproportionate. What if something designed to stop an intruder accessing the roof was mounted on the outside of a building but fell into the grounds or the street? It would have gone from being something within a building to something outside a building. Where would that stand under the vigilante Bill?

Mr. Dismore: My hon. Friend makes an interesting point. Properties are often protected by barbed wire, razor wire or the new material called cactus, which is very effective. There is also the old-fashioned use of broken bottles stuck in concrete on top of a wall. Those are not traps because they are obvious. There may be civil remedies if someone is injured by them, but they are certainly not traps.

Mr. Gale: They are illegal.

Mr. Dismore: The hon. Gentleman says that they are illegal. That may be the case, but the issue that we are starting to address is what we mean by "trespasser". I shall go on to consider that because it is important that I make some progress.


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