| Previous Section | Index | Home Page |
Mr. Dismore:
On the second point, such householders would not be protected by the Bill, because the piece of land is not inside a building. My hon. Friend has presaged the eminent Professor Smith, who says:
2 Dec 2005 : Column 558
"To be a building, the structure must have some degree of permanence. A substantial portable structure may be a building but probably"—
The best advice that I can give my hon. Friend is that a tent would probably not be covered by the Bill. That highlights our problem with the Bill, because "probably" is not good enough when one is discussing matters of life and death, which one is when one considers the Bill.
Chris Bryant: My hon. Friend may recall from the Sexual Offences Act 2003 that a tent is defined in law as a structure, not a building.
Mr. Dismore: That is very interesting, because the eminent Professor states that
Perhaps my hon. Friend should write to Professor Smith to put him right. However, his point arises in a context other than the Theft Act 1968, with which we are concerned today. I am sure that Professor Smith would be very interested to know about the comparison with the Sexual Offences Act 2003, which may give him additional guidance on how to construe the 1968 Act and ultimately this Bill, were it to become law.
Jim Dowd: If I have understood my hon. Friend's definition of a building, which concerns the building's degree of permanence, I imagine that a cave would not be a building, but what about a tunnel that has been built and is a permanent structure? I mention that point because the Bill refers to the prevention of crime in general rather than just crime against persons or property. Criminal action on the permanent way is a great headache for the railway authorities. Would the railway authorities have powers under the Bill?
Mr. Dismore: My hon. Friend has raised two issues. First, what about troglodytes? Troglodytes are people who live in caves. Many people live in caves. Indeed, when I was on holiday in Spain, I visited several towns in which the houses were made out of caves. Are such caves buildings? My hon. Friend has posed a very good question. I presume that if they had a built-on front wall built and possessions inside they would be a building, whereas a tunnel would not. However, there may be a building inside a tunnel—for example, a sub-surface underground station. That raises interesting questions. If the British Transport police wanted to apprehend an offender who was in the ticket hall and then leaped over the barriers and ran down the tunnel, what would be the powers of the constables chasing him? Would those powers switch between the moment they left the ticket hall and the moment they entered the tunnel? Under the Bill, they probably would.
Chris Bryant:
I am not too worried about the troglodytes, but I am still worried about those who inhabit vehicles. The hon. Member for Vale of York (Miss McIntosh) referred to theft from a car. Very few cars would count as an inhabited vehicle. My hon. Friend drew a distinction between a Dormobile—the "dorm" element suggests that people sleep and perhaps
2 Dec 2005 : Column 559
live in it—and a caravan. Where would he place mobile homes, which for the most part are not mobile but stationary with no vehicular element?
Mr. Deputy Speaker (Sir Michael Lord): I am not criticising the hon. Gentleman for straying too far away from the main contents of the Bill, but he spent some time defining trespass and is now defining buildings. Those definitions must apply elsewhere in law. I hope that he will use his speech particularly to address the Bill before us instead of defining terms from the law generally.
Mr. Dismore: I would hate to quibble with you, Mr. Deputy Speaker, but the problem is that the Bill defines
by cross-reference to section 9 of the Theft Act 1968. I have been examining that Act's definition of a building because that is the definition that applies in the Bill. It is not my fault that the drafters made that cross-reference. I would far prefer that they had set out what they mean by "building" in the Bill. If we are to explore the Bill properly, I therefore have to consider how "building" is defined for the purposes of section 9 of the Theft Act. The work that I have been using as my bible is the seminal work on the law of theft.
My hon. Friend the Member for Rhondda asked about vehicles. Cars certainly do not apply. Before I come to the issue of mobile homes, though, it is important to set out the benchmark definition of a building. That was given by a former Master of the Rolls, Lord Esher, in a case that took place quite a while ago. He says that a building in the ordinary sense is a block of brick or stonework covered in by a roof, and a structure of considerable size that is intended to be permanent or at least to endure for a considerable time. He says that a telephone kiosk is not a building, that the outbuildings of a house are buildings, and that a detached garage, tool shed or greenhouse may be a building. He identifies a difficulty on building sites in that a roof will be thought necessary for a structure to be a building but says that there is no obvious answer to borderline cases. He says that one lodger may commit burglary by entering another lodger's room, that a guest in a hotel may commit a burglary by entering the room of another guest and that on a ship somebody could commit a burglary by going into another cabin. A whole series of examples are brought into the Bill by the cross-reference from the Theft Act.
Mr. Flello: This draft vigilante Bill gives me grave concern, because of the confusion that it would cause. Could my hon. Friend, with his vast experience of these matters, give me some guidance as to what would happen on a building site that had on-site security? If some of the buildings were partly completed and some were not, would the security guard be acting within the law under this vigilante Bill if he used disproportionate force when he caught someone trying to steal things from the site?
Mr. Dismore:
I have an example that I was going to use later in my speech, but it is relevant to my hon.
2 Dec 2005 : Column 560
Friend's question. I would pity the security guard in those circumstances. Let us suppose that, on a housing development, some of the houses had been finished, some had been constructed as far as the second floor and had a roof, some had only the first floor and no roof, and some were still just a wishful thought in the developer's eye, consisting only of footings or perhaps just open land.
The problem that the security guard would face as he chased the burglar from one part of the site to another would be that he would be able to use disproportionate force when he was in a finished house, but he may or may not be able to do so when he entered a half-finished house, depending on how much of it had been built, and when he chased the burglar over the open land heading for the gate, he would be back under the old rule of reasonable force. Frankly, nothing could better illustrate the anomalies that the Bill would create as a result of defining the word "building" insufficiently tightly. Instead, it sloppily cross-refers us to the Theft Act 1968 because its drafters could not be bothered to apply their minds to what a building should be, for the detailed and specific purposes of the proposals. The net consequence is that we should have all these amazing anomalies.
Mr. Khan: I am really troubled by that last example. My mind is drawn to our police officers, who are governed by their disciplinary codes, as well as by the civil law. Having read about these matters, what guidance would my hon. Friend give to a police officer giving chase, for example, to a teenage trespasser on a building site or on the railway—my hon. Friend the Member for Lewisham, West (Jim Dowd) mentioned tunnels earlier. How would the police officer know how not to fall foul of the Bill's provisions, by contrast with the provisions of the disciplinary code or the civil law provisions that might apply if they were sued, if someone were assaulted as a result of the way in which the police officer behaved?
Mr. Dismore: My hon. Friend raises an important point. I would hope that the police officer would exercise their common sense. A police officer is entitled to use reasonable force in apprehending a criminal, as is any citizen attempting to effect a citizen's arrest under the law as it stands. Police officers are trained in the criminal law, and they know when they may and may not use disproportionate force, but that would not be the case under the Bill, because of all the anomalies that it contains. I suspect that a police officer would have more sense than to use disproportionate force. I have rather greater respect for the police service than do the Conservatives, given their suggestion that police officers might wish to use disproportionate force beyond that necessary to detain a suspect.
| Next Section | Index | Home Page |