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Mr. Gale: As a matter of interest, hon. Members were given counselling by security force personnel because of terrorist threats to Members. We were warned that we had to be very careful about how we protected our homes. I fear that the concept that your home is your castle is not true.
Mr. Dismore: I am grateful to the hon. Gentleman. In my property, I have employed security measures such as window locks, deadlocks and burglar alarms that are unlikely to harm anyone. That is the best way to go, as I hope to explain later.
The intervention of the hon. Member for North Thanet (Mr. Gale) is useful, because it appears
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that the current position is that the use of barbed wire or glass is proportionate if a lad kicks his ball over a wall and is injured. If that is the case, will my hon. Friend comment on what might happen to youngsters going over a wall to get their ball back if a householder was allowed to use disproportionate and excessive means to protect his or her property?
Mr. Dismore: The child might be injured but the householder would not be protected by the Bill because the ball would presumably be in the yard or garden. The householder might not draw the distinction that a QC would between the house itself and its immediate surroundings. People might think that they are protected by the Bill in using disproportionate force in dealing with a lad trespassing while chasing a ball, but find themselves in the dock because the Bill would not protect them. That is the sort of problem that arises when there is a duplicity of standards in respect of the law of self-defence.
Let us consider what we mean by "entered as a trespasser", which is the phrase used in the third line of what would become new subsection (1A) of the Criminal Law Act 1967. I happen to have with me a copy of the eighth edition of Professor Sir John Smith's "Law of Theft", which, if we follow its advice, produces some interesting anomalies in respect of the Bill.
Let us first consider the definition of "enters". The common law rule was that the insertion of any part of the body, however small, was a sufficient entry. If a burglar pushed through a window pane and the forepart of his finger was observed to be inside the building, that was enough. The Theft Act gives no express guidance and it seems to have been assumed in Parliament that the common law rules apply. Under common law, if an instrument is inserted into the building for the purpose of committing the offence, it counts as an entry, even though no part of the body was introduced into the building. Someone who just pokes a finger through the window could be met by disproportionate force when the mad householder with an axe comes along and chops it off. That is disproportionate for sure, but is it excessive? We do not know, but I believe that the House does not really expect or wish to see that happening.
We know that the common law still applies, because Professor Smith, one of this country's leading experts in criminal law, explains it in his book. He goes through a whole series of anomalies that can occur, but he goes on to say at the end of the section that deals with "peculiar effects" that the "best course" is probably to assume "the continued existence" of the "common law rules". He provides some very strange examples. One of the most interesting is the case of transvestites who hooked dresses worth £600 through the letter boxes of shops and pleaded guilty to burglary. Well, if that is committing a burglary and if the essence of burglary is trespass, I dread to think what might have happened if the householder had got hold of them while they were hooking things through his letter box.
Now that we have looked into the question of entering, we have to understand exactly what is meant by trespassing. A trespasser is a legal concept that is rooted in the civil law rather than the criminal law. The basic rule in civil law is that entry with the consent of the occupier cannot be trespass, but obviously the opposite is the case. "Mistake" by the person who enters the
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property is no defence if, for example, the person accused of being a trespasser and therefore at risk under the Bill were to enter the house next door, mistaking it for his own, on a very dark night. That would still be regarded as an intentional entry in trespass law, even if the person doing the entering had made an honest and reasonable mistake. To revert to my earlier example of the neighbour returning the lawnmower, one wonders whether the full force of excessive force is appropriate in those circumstances.
I can provide an even better example than that. Let us suppose that the person allegedly committing the trespass were separated from his wife and he wrongly supposed that he had the right to enter the matrimonial home of which he was still technically the owner-occupier as he was still paying towards the cost of the home. He thought that he had the right to go in, even though he may not have had that right in law, and enters with the intent of removing some of the belongings. In fact, even in law, he may be a trespasser, but he is not actually a burglar because he can rely on some of the defences that apply in the law of trespass. My concern in that case is that he is potentially a trespasser for the purposes of the Bill, but he is not a burglar for the purposes of the Theft Act 1968. He could be beaten up by whoever happens to be inside the propertyby his wife's new partner, for exampleand if he were subjected to excessive force, it would be covered by the Bill even though in law he was not really a burglar at all.
Mr. Khan: Is there not a problem with the words "entered as a trespasser"? Earlier, an Opposition Member, who is no longer in his place, referred to an example, in which "but for the law" he would have been a hero for retaliating against someone who came into his shop to commit an act of theft. As my hon. Friend knows, the reality is that if someone commits a criminal act on a property, the licence is revoked and he then becomes a trespasser. If someone enters a shop as an innocent purchaser of an item without the intention of breaking the law, but subsequently decides to commit a criminal act thereby becoming a trespasser, he or she did not enter the shop or property as a trespasser, which is the threshold required for the provisions to apply. Is not that the problem?
Mr. Dismore: My hon. Friend makes a very interesting point, which relates to the Theft Act. If someone decides to commit a theft at a particular stage, they become a trespasser from the moment they entered the building and could theoretically face the charge of burglary; in practice, they are usually charged with theft. Technically, if they were to jump over the counter and raid the till, I suspect that it would be classed as burglary.
Chris Bryant: Let us consider the example given earlier of an estranged husband returning to the matrimonial home, which he still half owns. He might not be entering as a trespasser and may have no intention of committing a burglary of any kind. None the less, in an altercation he might end up offering violence against his wife, and at that point it might be necessary for her to offer violence in return. Of course, this Bill would not protect her in any sense.
To be fair, I am not sure that that is accurate. In that situation, the husband would probably
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be committing the offence of burglary anyway, because burglary is not just thieving: rape and grievous bodily harm, for example, can constitute burglary. People often think that burglary is just stealing; it is not. It can include other offences linked to breaking into a property. The problem is that the Bill refers not to burglary but simply to people trespassing on buildings. The definitions of trespass in civil law and in criminal law are different, as are the definitions of the motive of the person entering the building. The situation is very confusing indeed, and part of the problem is that the Bill is unclear on the circumstances to which it would apply.
As has been demonstrated in a number of different examples given today, under the Bill, the person defending themselves could be completely unclear as to which test applies: the reasonable force test or the excessive, disproportionate force test. They would not know where they stood, and the creation of such confusion would put them in a very difficult position. There is a very real risk that they might naturally assume that they could use disproportionate force in circumstances where they in fact could not. The consequence could be entirely the opposite of that intended. People could end up appearing in the dock to defend themselves who currently would not need to, because as it stands they would be using reasonable, rather than disproportionate, force. If someone used the latter in circumstances where they were entitled to use only the former, they would rightly be charged with a criminal offence. That could happen under the Bill, simply because it has led them up the garden path.
Mr. Flello: Under this vigilante Bill, burglars could decide to stop committing burglaries and start mugging instead, because the prize is the same but the chances of being beaten up are reduced. In other words, it could push burglars out into the parks to mug people. Moreover, under this very woolly vigilante Bill, somebody threatened with being mugged in the park might rush to the nearest house and hammer on the door to get in, only for the person behind the door to think, "Somebody is trespassing on my premises; I can now use disproportionate force against them." What are my hon. Friend's thoughts on that?
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