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Mr. Dismore: My hon. Friend offers yet another example of how this Bill creates many anomalies. Creating two different laws of self-defence for two different sets of circumstances is dangerous and would lead to serious problems.
Mr. Khan: At the beginning of his excellent speech, my hon. Friend said that the Bill's title, which refers to the "Protection of Property", gave the game away. Will he confirm, in the light of the intervention from my hon. Friend the Member for Stoke-on-Trent, South (Mr. Flello), that under this Bill those who live in gated developments or castles, and who drive everywhere, would enjoy better protection than those of us who walk or commute, and who live in communities? Nor, as my hon. Friend the Member for Rhondda (Chris Bryant) said, would the Bill protect those living in rural areas.
In an intervention, my hon. Friend the Member for Stoke-on-Trent, South mentioned the displacement of crime from burglary to street robbery. Well, that may happen anyway if we are able to bear down on the incidence of burglary; indeed, there has been a rise in street crime as a consequence of the fact that burglary has become a more difficult crime to commit. The problem with the Bill is that it may drive people further into that type of criminal behaviour.
I mentioned previously the problem of displacement from properties where the householder may be thought to have weapons to defend himself to the home of a little old lady who could not defend herself. The Bill would inevitably lead to such displacement, and my hon. Friend is right to say that there will also be displacement from burglary to street robbery, perhaps as an alternative way of funding a drug habit. Obviously, we have to deal with street crime, too, but the Bill does not provide the same protection for victims of street robbery as it does for the lord in his castle.
Dr. Palmer: We all admire my hon. Friend's ability to retain the thread of his remarks despite our interventions. I want to take him back to an intervention that he did not fully deal with: my hon. Friend the Member for Tooting (Mr. Khan) pointed out that under the Bill the situation would be different for someone who entered as a trespasser and for an opportunist who went into a shop and then decided to commit a burglary. A householder would not necessarily know which of those two things had occurred, so the exemption in subsection (1A)(b)
relates only to the degree of force. If a householder came across someone who had appeared in the building unlawfully but did not know whether they originally intended to trespass, the householder would not know whether they could use disproportionate force.
Mr. Dismore: That is one of the problems. My hon. Friend switched from a shop owner to a householder halfway through his analogy, but I think it would be interesting if we stayed with the shop owner. If somebody enters a shop and tries to steal goods or raid the till, they retrospectively become a trespasser for the purposes of the Theft Act, so technically would fall to be dealt with under the Bill. The problem is that the shop owner may not know that. I suspect that most shop owners do not know the law of trespass well enough to draw that distinction. Yet again, we would be in the difficult position where different rules applied in different circumstances, with a complete lack of clarity for the victim about the extent to which they are entitled to defend themselveswhether the high test in the Bill or the common-sense test in the existing law of self-defence.
A further problem with trespass relates to inviteesfor example, friends who visit the house, other tenants in a house of multiple occupation, squatters, a neighbour borrowing a lawnmower or a neighbour in a dispute. They might not enter a particular place as trespassers but they could all become trespassers for the reasons that I have outlined. That creates a serious situation, because most people would not know where the line was drawn, or that the status of someone who had entered the building could change. The arguments that we have
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been having during the debate about trespass show that the law of trespass is not as fully understood as it should be even by those who might have read "Archbold's Criminal Pleadings" or "Clerk and Lindsell on Torts"
Mr. Dismore: Even most bookshops would not have those books unless they were law bookshops, and there are not many of those about. Of course, whether the shop staff had actually read the books is another question altogether.
The law of trespass gives rise to serious problems, especially in cases where people gain entry by deception. We have all heard about burglary by artificethe dodgy gas or electricity man whose object is not to read the meter but to rob the teapot. In those circumstances, even if the dodgy gas man was invited in because the householder did not think that he was a trespasser, in law he would be. To pick up the second point made by my hon. Friend the Member for Broxtowe when he switched his analogy, the householder would, under the Bill, be entitled to use disproportionate force to defend themselves but would probably be unaware of that fact. The Bill would create misapprehension about what people could do.
Chris Bryant: My hon. Friend might recall that the right hon. Member for West Dorset (Mr. Letwin) invited a gentleman into his home at 2 o'clock one morning because the man knocked on the door and said that he needed to use the toilet. Even such an esteemed figure as the right hon. Gentleman might not have fully understood the nature of trespass. If the Bill came into law, he thus might not fully understand the precise degree of force that he could use.
Mr. Dismore: My hon. Friend is right. If we are talking about the countryside, there is an interesting point that people who have limited authority to do one thing and may thus enter a place legally can become trespassers if they do something outside the extent of that authority. An example cited under the Game Act 1831 is of someone who had permission to go on to land to hunt for rabbits, but then started hunting hares. It might be splitting hairs to raise the case, but such evidence of trespass under the Game Act 1831 would presumably be evidence of trespass under the Bill if the animals in question were inside a buildingwe would presumably be considering battery-farmed rabbits or hares in such circumstances.
My hon. Friend talks about the householder being unclear about whether someone is a trespasser. One of the arguments for the Bill that is being pressed by members of Her Majesty's official Opposition is the fact that it would reduce the number of burglaries committed, because possible burglars would be scared off and deterred by the draconian
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powers open to a householder. However, would not a possible burglar also be confused about the position? Any chance of the Bill deterring burglars would be limited by their confusion about the powers of the householder.
Mr. Dismore: I am not entirely sure that I agree with my hon. Friend's argument. The Opposition say that a burglar would assume the worst in such circumstances. If that is the case, it might be an argument in support of the Bill. However, if my hon. Friend is rightin this context I suspect that he isit would not have that deterrent effect at all, because burglars would assume, as criminals always do, that they would not get caught and that the lesser rules would apply. They are not very intelligent people, which explains why they undertake such business, although I suppose that we can think of the famous jewel thieves whom we sometimes see in fiction.
Chris Bryant: Is not the other problem with the concept of trespass the fact that the tort of trespass originally related to landand still primarily does in lawrather than to buildings? I know that the concept of trespass in a building comes from the Theft Act 1968, but the situation is none the less confusing.
Mr. Dismore: My hon. Friend makes an interesting point. If ordinary people were to read the Bill, they would think that "trespass" applied to anywhere on their property. They might not read the small print that refers to a
One might think that that is a relatively uncontroversial aspect of the Bill that raises no significant problems, but that is not the case. Property does not have to be either lawfully owned or legal property in its own right.
Let us suppose that the legal owner of a TV or video discovered that it had been stolen by another person in their tower block. If the owner decided to go and repatriate it, they might think that they were entitled to use disproportionate force to recover it, because they would be acting inside a building to prevent crime. However, the burglar in his flat could also use disproportionate force to defend the stolen property from its lawful owner and fight back, so the situation would ratchet up. Each person is legally entitled to use disproportionate force against the other. That is surely not the Bill's intention, but it is the inevitable and logical consequence of the way in which it is drafted. The lawful owner of the property is preventing crime while operating inside a building, and the burglar, who is also inside the building, is defending property, even though it is not his. According to the Bill, each can use disproportionate force against the other. Who knows where it will end, except with two corpses on the carpet? Surely, that is not the Bill's intention.
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