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Clause read a Second time, and added to the Bill.
After section 127 of the Criminal Justice and Public Order Act 1994 (c. 33) insert—
“127A Power to suspend the operation of section 127
(1) The Secretary of State may make orders suspending, or later reviving, the operation of section 127.
(2) An order under this section may make different provision in relation to different descriptions of prison officer.
(3) The power to make orders under this section is exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.”— [Mr. Straw.]
Brought up, read the First and Second time, and added to the Bill.
Amendment made: No. 169, in page 120, line 31 [Clause 175], at end insert—
‘( ) sections (Amendment of section 127 of the Criminal Justice and Public Order Act 1994) and (Power to suspend the operation of section 127 of the Criminal Justice and Public Order Act 1994).’— [Mr. Straw.]
Amendment made: No. 170, in title, line 9, after ‘criminality;’ insert
‘to amend section 127 of the Criminal Justice and Public Order Act 1994 and confer power to suspend the operation of that section;’.— [Mr. Straw.]
‘(1) This section applies where in proceedings for an offence—
(a) an issue arises as to whether a person charged with the offence (“D”) is entitled to rely on a defence within subsection (2), and
(b) the question arises whether the degree of force used by D against a person (“V”) was reasonable in the circumstances.
(a) the common law defence of self-defence; and
(b) the defences provided by section 3(1) of the Criminal Law Act 1967 (c. 58) or section 3(1) of the Criminal Law Act (Northern Ireland) 1967 (c. 18 (N.I.)) (use of force in prevention of crime or making arrest).
(3) The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be, and subsections (4) and (5) also apply in connection with deciding that question.
(4) The degree of force used by D is not to be regarded as having been reasonable in those circumstances if it was disproportionate in those circumstances.
(5) In deciding the question the following considerations are to be taken into account (so far as relevant in the circumstances of the case)—
(a) that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and
(b) that evidence of a person’s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.
(6) Subsection (5) is not to be read as preventing other matters from being taken into account where they are relevant to deciding the question mentioned in subsection (3).
(7) This section is intended to clarify the operation of the existing defences mentioned in subsection (2).
(8) For the purposes of references in this section to what D believed, it is immaterial whether—
(a) any belief of D’s was mistaken, or
(b) (if it was mistaken) the mistake was reasonable.
(9) But subsection (3) does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced.
(a) “legitimate purpose” means—
(i) the purpose of self-defence under the common law, or
(ii) the prevention of crime or effecting or assisting in the lawful arrest of persons mentioned in the provisions referred to in subsection (2)(b);
(b) references to self-defence include acting in defence of another person; and
(c) references to the degree of force used are to the type and amount of force used.’.— [Mr. Straw.]
Brought up, and read the First time.
Mr. Straw: I beg to move, That the clause be read a Second time.
Mr. Deputy Speaker: With this it will be convenient to discuss the following: amendment (a) to the proposed new clause, in subsection (8)(a), leave out from ‘mistaken’ to end of that paragraph.
New clause 8— Amendment of the Criminal Law Act 1967 —
‘(1) The Criminal Law Act 1967 (c. 58) is amended as follows.
(2) In section 3 (use of force in making arrest, etc.), after subsection (1), insert—
“(1A) Where a person uses force in the prevention of crime or in the defence of persons or property on another who is in any building or part of a building having entered as a trespasser or is attempting so to enter, that person shall not be guilty of any offence in respect of the use of that force unless—
(a) the degree of force used was grossly disproportionate, and
(b) this was or ought to have been apparent to the person using such force.
(1B) No prosecution shall be brought against a person subject to subsection (1A) without the leave of the Attorney General.
(1C) In this section “building or part of a building” shall have the same meaning as in section 9 of the Theft Act 1968 (c. 60) (burglary).”.’.
New clause 9— Amendment of the Criminal Law Act (Northern Ireland) 1967 —
‘(1) The Criminal Law Act (Northern Ireland) 1967 (c. 18 NI)) is amended as follows.
(2) In section 3 (use of force in making arrest, etc.), after subsection (1), insert—
“(1A) Where a person uses force in the prevention of crime or in the defence of persons or property on another who is in any building or part of a building having entered as a trespasser or is attempting so to enter, that person shall not be guilty of any offence in respect of the use of that force unless—
(a) the degree of force used was grossly disproportionate, and
(b) this was or ought to have been apparent to the person using such force.
(1B) No prosecution shall be brought against a person subject to subsection (1A) without the leave of the Attorney General.
(1C) In this section “building or part of a building” shall have the same meaning as in section 9 of the Theft Act (Northern Ireland) 1969 (c. 16 NI)) (burglary).”.’.
Amendment No. 125, in page 120, line 2, clause 174, at end insert—
‘(aa) section [Amendment of the Criminal Law Act (Northern Ireland) 1967];’.
Government amendments No. 103 and 113.
Mr. Straw: The purpose of our provisions is to amend and clarify for the better the law on self-defence. This is a matter of considerable public concern. The House will know of my experiences on four separate occasions of seeking to apprehend someone—there was one burglar and three street robbers. Anyone who has been involved in such circumstances, or who knows of someone who has, will know that on such occasions there is no time to make a careful, fine judgment about the balance of the law. One does these things instinctively. Where people act reasonably, in good faith, the law should clearly be on their side.
I hope and believe that there is general support for new clause 6. I know that there will be a debate about the proposed changes involving something being deemed wholly “disproportionate”, but I am afraid that we cannot accept them.
Miss Anne McIntosh (Vale of York) (Con) rose—
Mr. Straw: Before I give way to the hon. Lady and to other Conservative Members, I want to place on record my appreciation of the way in which they have brought this matter forward. We are dealing with an issue of considerable public concern. My judgment has always been that, interestingly, it is very rare for a case to become a decision for a court—normally it would be for the jury—where any reasonable person would regard it as unfair. The number of such cases that go to court are very few. In an informal trawl in 2004, the Crown Prosecution Service found 11 cases in the previous 15 where people had been prosecuted for attacking intruders, and seven of them related to household burglaries.
Miss Ann Widdecombe (Maidstone and The Weald) (Con) rose—
Mr. Straw: I shall give way in a moment, first to the hon. Lady and then to the right hon. Lady.
Something that worries me, hon. Members on both sides of the House and members of the police force is that there have been more occasions when someone has acted reasonably, in good faith and on the spur of the moment, but a police investigation has none the less taken place. Such an investigation may drag on for months, with all the anxiety that that involves. Two years ago, the CPS and the Association of Chief Police Officers produced an excellent joint leaflet that gave guidance about that.
Mr. Edward Vaizey (Wantage) (Con) rose—
Mr. Straw: I shall give way in a moment. Although such guidance is helpful, it is not the law. The purpose of our proposed changes is to draw on the best and most positive of case law, and to clarify the law.
Miss McIntosh: I am grateful for the Secretary of State’s openness in meeting to discuss the text. The leaflet to which he referred weakly states that if the intruder dies, the victim of the crime could be accused of
“acting with very excessive and gratuitous force and could be prosecuted.”
Let us consider the wording in new clause 6, in particular subsection (1)(b) and subsection (4). There is general agreement on both sides of the House that we need enhanced legal protection and greater clarity in the wording of the law. I submit to him, given that the wording is the same as it was in my private Member’s Bill, that our new clauses 8 and 9 are much clearer in that regard.
Mr. Straw: This has been the subject of considerable debate, but it ultimately comes down to a matter of judgment.
May I just deal with the issue of “grossly disproportionate” force, which I have thought about a lot? I am sure that the hon. Lady and other Conservative Members will say, “Hang on a second”. They will do so because as a result of Brendon Fearon seeking compensation over the Tony Martin case, the Labour Government introduced amendments in the Criminal Justice Act 2003 to create a test in respect of any claim by a criminal against a victim who had assaulted or damaged them in some way. Such a claim could be sustained only if the force used against the criminal was grossly disproportionate. The issue is whether that part of the civil law can be imported into the criminal law. I have been clearly advised, and I accept, that that is not possible, not least because of the European convention on human rights—not because of the Human Rights Act 1998.
Mr. Dominic Grieve (Beaconsfield) (Con) rose—
Mr. Straw:
I say as gently as possible to the hon. Gentleman that I have three interventions to take first, but I look forward to his contribution. The advice that I have received, which I accept, is that such a move
would be outwith the ECHR, and I remind Conservative Members that whatever views they have about the Human Rights Act, they have accepted that we should remain subject to the ECHR.
Patrick Mercer (Newark) (Con) rose—
Mr. Straw: I shall give way to the hon. Gentleman.
Patrick Mercer: I am most grateful that the Justice Secretary has brought up the name of my constituent, Brendon Fearon, who was involved in the Tony Martin case. It might be apposite to remind the House that when I introduced a private Member’s Bill on this matter, which was taken up ably by my hon. Friends the Member for Vale of York (Miss McIntosh) and for North-West Cambridgeshire (Mr. Vara), Brendon Fearon said how very useful he believed the proposed changes would be, and that if what is currently enshrined in civil law were to be enshrined in criminal law, he, as a professional criminal and a recidivist, would find it deeply deterring.
Mr. Straw: I am not grateful to Mr. Fearon —[Interruption.] I was Home Secretary when the Tony Martin case arose. It was a difficult one, although I think that few people argue with the jury’s verdict in those exceptional circumstances. I do not regard Mr. Fearon on an equal footing with the judicial Committee of the House of Lords or even with the European Court of Human Rights in Strasbourg. I shall now give way to the right hon. Member for Maidstone and The Weald (Miss Widdecombe).
Miss Widdecombe: Get on with the speech, Jack.
Mr. Straw: I shall give way to the Front-Bench spokesman.
Mr. Grieve: The Lord Chancellor has to accept that his new clause is a restatement of the existing law. As the law envisages that there are perfectly clear cases in which disproportionate force may be legitimate, surely by saying that only in cases of “grossly disproportionate” force should prosecutions lie we are well within the scope of article 2 of the European convention on human rights. I find it difficult to see how we would fall foul of the convention if new clauses 8 or 9 were to be adopted, particularly in the restricted circumstances to which they apply, which concern householders and closed premises when a victim is under a particular difficulty because they are unable to get away, temporise or disengage.
Mr. Straw: To some degree, we may end up arguing about the size of the head of a pin. In the rare cases where such a prosecution reached court, it would be for a jury to decide behind closed doors whether it thought that the force used was acceptable. I put on the record the advice that I have received, which I accept. That is an issue between us.
The new clause seeks to clarify the law in a positive way. It is drawn from the best of existing case law, but everyone knows that not even good lawyers can always access that with ease. We have sought to put on the face of the Bill the circumstances that should be taken into account by the court not only when it decides guilt or
innocence, but earlier down the track when it decides whether to initiate an investigation. Proposed new subsection (5) states that in deciding whether someone is guilty of an offence,
“the following considerations are to be taken into account...that a person acting for a legitimate purpose”—
that is, to prevent a crime or apprehend a criminal—
“may not be able to weigh to a nicety the exact measure of any necessary action; and...that evidence of a person’s having done only what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.”
In other words, if that person honestly and instinctively thought that their action was reasonable, that would weigh heavily with the court, leaving aside the issue of whether it was proportionate or grossly disproportionate.
My final point is that proposed new subsection (8) means that in terms of what the defendant believed it is immaterial whether the belief was mistaken and, if it was mistaken, whether the belief was reasonable. I commend the proposals to the House.
Mr. Straw: I want to allow the House time to debate what is proposed, so if I may, on this occasion I shall sit down early and invite the Opposition spokesmen to speak.
Nick Herbert: In accepting Government new clause 6, I want to explain why we do not believe that it goes far enough and why new clauses 8 and 9 remain the approach that the House should adopt.
The private Members’ Bills introduced over the past few years by my hon. Friends the Members for Vale of York (Miss McIntosh), for Newark (Patrick Mercer) and for North-West Cambridgeshire (Mr. Vara), all of whom are present today, sought, as we do, to give greater clarity to the law not by introducing the concept of people acting reasonably but by permitting them, when protecting themselves or their property against a trespasser, to use a degree of force provided that that force was not grossly disproportionate and as long as it should not have been apparent to the person that such force was grossly disproportionate.
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