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Mr. Flello: If a police officer giving pursuit to a drug dealer, for example, were in plain clothes and went across the building site that we talked about earlier, he would need not only to think about apprehending the criminal but to be cognisant of the fact that the security guard on the premises could use disproportionate force against him, not realising that he was a police officer because he was in plain clothes. Would not the police officer therefore have to take into account the fact that
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he might encounter disproportionate force simply because of the area in which he was pursuing the criminal?

Mr. Dismore: My hon. Friend's example is not at all fanciful. I think that it was the case of Kenneth Nye—

Jim Dowd: Kenneth Noye.

Mr. Dismore: I am grateful to my hon. Friend for his correction. Kenneth Noye was a well known member of the organised crime fraternity. He killed a plain clothes police officer who was staking out his property, because he thought he was a trespasser. Noye escaped conviction, even under the existing law of reasonable force. What would be the position were the new proposals in the Bill to apply? Plain clothes police officers could be subject to disproportionate force all over the place, both in the circumstances that we have heard described and in many others that I am sure that everyone in the House can imagine.

Mr. Khan: An additional point is the criticism that a police officer would face if he or she used excessive or disproportionate force but not grossly disproportionate force. My hon. Friend and I, and our hon. Friends who work with the police, are aware that that would lead to criticism of the police when they were not falling foul of the Bill.

Mr. Dismore: My hon. Friend is right. All that one can say to police officers in those circumstances is that they should use their common sense, and use the reasonable force that they consider necessary to apprehend the offender. Ultimately, I suspect that that is the advice that we would all have to give to householders, or anybody else, even if the Bill were passed. To do anything else would still lead to the grey areas mentioned by my hon. Friend the Member for Broxtowe.

Dr. Palmer: Does my hon. Friend agree that we would end up back where we started if we gave householders the advice that the law is not completely clear and that they must rely on the common sense of the jury and behave reasonably, which makes the task of the jury that much harder? Does not he agree that there will be situations in which the use of force to make an arrest is an ongoing process? The police officer might have to hit the suspect several times to subdue him. If the first blow was in a building, and the second blow was not, the question arises as to whether the first blow has become disproportionate.

Mr. Dismore: My hon. Friend raises an interesting set of circumstances, but the force was probably not even reasonable if it did not lay out the offender.

On the definition of "building" as it applies to the Theft Act 1968, cross-referred to the Bill, a number of interventions asked about the position of mobile homes, which is an interesting way of summing up the anomalies in that regard. I mentioned dormobiles and motorised caravans, which are used for the ordinary purpose of a motor car during most of the year but are occasionally lived in, usually when the owner is on holiday. While the vehicle is being lived in, it is
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undoubtedly an inhabited vehicle, but when it is being used for the purposes of a car, it is not. The exact moment at which it becomes an inhabited vehicle might be difficult to ascertain. Is it when the family has loaded their possessions before going on holiday, when they take to the road, or when they park up at the seaside? When they use the vehicle as a car when on holiday, is it covered? A whole series of anomalies are created in relation to mobile homes.

The Bill is not good enough in this respect. It must be much more specific and clear in its definition of a building. We heard earlier about the Englishman's home being his castle. What if it is a ruined castle? Is that a building? What if it is ruined castle now being restored? At what stage does it become a building? Perhaps it is a house; perhaps it is not. The problem is that the Englishman's home might be his castle, but it might not be his building for the purposes of defending it under the Bill.

What about the position of trains? We still have sleeper trains. If people break into one cabin from another, the chances are that it would be covered by the Bill. Were the great train robbery to occur now, however, the train driver and the post office workers who were victims would not be covered by the Bill, because the mail van, and the driver's cab, would not be considered parts of a building for this purpose. I suspect that the cabins might be.

What about a prisoner who invades the cell of another prisoner in jail? The prisoner, who is the "owner" of the cell, might wish to use disproportionate force to defend his property from the prisoner invading his cell, and the next thing is that we have a prison riot on our hands. That is encouraged by the terms of the Bill.

As a result of the different tests of self-defence in different circumstances, the anomalies are legion. The definition of a building should have been drawn a lot tighter, rather than trusting to luck, sticking a finger in the air, testing the wind and referring to the Theft Act.

We have had a lot of discussion today about the definition of grossly disproportionate, which is the meat of the Bill. Clause 1 would insert new subsection (1A)(a) into the Criminal Law Act 1967 and introduce the phrase,

If the defence is that the force was disproportionate but not grossly disproportionate, the prosecution has to prove that the force was not just disproportionate but grossly disproportionate.

Jim Dowd: We briefly touched on the matter a few minutes ago, but I find deeply troubling the use of the term "grossly". Where does it sit in the gradation of disproportionality? Is it worse than severely, markedly, significantly or extravagantly? How is a jury, for example, to distinguish between mere disproportionality, slight disproportionality, severe disproportionality and gross disproportionality?

Mr. Dismore: My hon. Friend raises an interesting point. The Joint Committee on Human Rights report on the Bill introduced by the hon. Member for Newark, which contained exactly the same language, said that judges could have a problem interpreting it. If the judges
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have a problem interpreting it, how can the ordinary householder in the street, never mind my hon. Friend, not have problems interpreting it?

The problem is that neither disproportionate nor grossly disproportionate are defined in the law anywhere. There is no case law on it—civil or criminal. There have been no cases under section 329 of the Criminal Justice Act 2003, which introduced the term into civil law. There is no guidance in the law.

Chris Bryant: I do not know whether my hon. Friend is aware that there are in fact two places in the law where the term grossly disproportionate is used. The other place is schedule 3, paragraph 4 of the Opencast Coal Act 1958, which refers to the estimated cost of the work being

Does he accept that the concept of the proportionality is much easier to use when one is attributing financial or some other value, rather than when one is talking about the action of an individual?

Mr. Dismore: My hon. Friend makes an interesting point. We know that the Bill is about defending property. I will bear in mind your constraints earlier, Mr. Deputy Speaker, and not stray down the highways and byways of other Acts and measures that the House has passed, although those may be the only guidance. It will be interesting to know, if I may say in parenthesis, whether that terminology has ever been interpreted in the courts or whether it simply appears in the statute. If that is so, it will not provide us with any more guidance than we have to start with.

Mr. Flello: Does my hon. Friend envisage a situation where the Association of Chief Police Officers will have to distribute large amounts of leaflets explaining what proportionality, disproportionality and grossly disproportionate mean? Will that not be a tremendous waste of money?

Mr. Dismore: I envisage ACPO having to distribute tomes the size of "Archbold", rather than a leaflet, to explain to people what the new law will be. I have had to trawl through "Archbold" to try to find some definitions. Those will have to be incorporated in the leaflet. My hon. Friend is right: it is important that people are made aware of what the law is. However, I suspect that it would need to be rather bigger than a leaflet. It would be at the very least a thick pamphlet or a tome along the lines of "Archbold" if it is to make clear what the law is, should the Bill go through.

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