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I wish that the Conservatives would accept that they have won the argument. The Lord Chancellor has come round to their point of view and has come forward with a formulation that I think actually works. However, if they will persist with new clause 8, I have to say that I think that there are two problems with it. The first is that it would replace one test, that of reasonableness, with another, the test of what is “grossly disproportionate”. Both are still subjective, in the sense that interpretation is required—in the first case by the investigation and prosecution authorities,
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who have to decide whether to bring the case, and in the second by the jury, who have to interpret the word “grossly”.

That does not take us much further. Of course there is a difference in mood between the two, in the sense that, in common parlance, one would expect “grossly disproportionate” to constitute a higher test than what is reasonable, but in reality it leaves a blurring of the edges, which is not acceptable. Where I part company with the hon. Member for North-West Norfolk (Mr. Bellingham), with whom I often agree on such matters, is that, as I have said repeatedly, I do not believe that the purpose of statute law is to send signals. We do not use this place as a means of semaphore; we use it as a means of providing workable law. The problem with new clause 8 is that it replaces a test that is subjective in the eyes of the prosecution and the court with another test that is subjective in the eyes of the prosecution and the court. That is what worries me.

Mr. Vaizey: The hon. Gentleman has just contradicted himself. He said earlier that he was minded to support new clause 6 precisely because it sends a signal to the police not to conduct prosecutions. Now he is saying that he will not support new clause 8 because it is being used to send a signal. Does he not understand that new clause 6 simply sends a signal, whereas new clause 8 would genuinely change the law to protect the householder? The hon. Gentleman should therefore support new clause 8, as it represents a change of the law, not a signal.

Mr. Heath: Quite the reverse. That is the difficulty that I have with the Conservatives’ position. I do not think that they have read new clause 6 properly and compared it with their own new clause 8. My view is that new clause 6 provides a more stringent safeguard for the householder than does new clause 8.

That brings me to my second objection, which is the point raised by my hon. Friend the Member for Cambridge. Let us go back to the Tony Martin case. Let us set aside for the moment the person of Tony Martin and the circumstances of that case, and consider the point of law that was exposed by the Court of Appeal. The Court of Appeal distinguished between an error made by that person as to whether he was under attack, and an error made about the danger that was posed by that attack. In the first instance, the statement is subjective.

David Howarth: My hon. Friend is on the right lines. The Court of Appeal said that if the question were simply whether the defendant believed that he was under attack, what the defendant believed would be accepted. But when the question was whether the danger posed by the attack was serious, the question would become a matter of reasonableness for the jury to decide, which is quite different.

Mr. Heath: I wish I had not allowed my hon. Friend to intervene. That is what I was saying. The point is exactly as he makes it. The first test is whether the defendant believed he was under attack. The answer is yes or no. The second test as to the gravity of the attack, and therefore the response, must be tested objectively in terms of reasonableness. That is still the
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situation under new clause 8, but under the Government’s proposals in new clause 6, let us consider subsections (5) and (8).

Subsection (8) is crucial. It states:

In other words, where a person meets an intruder in his house in the middle of the night and may be entirely mistaken about what the intruder is about to do to him, provided that he reacts in an appropriate way, even if it is not reasonable in the cold light of day, he is protected by the law. Under the Conservative amendment, he would not be protected by the law. That is the distinction that I am trying to make.

3.45 pm

Mr. Grieve: I do not want to get involved in an exercise in semantics, but subsection (4) of new clause 6, which states:

qualifies subsection (3). As a result, the suggestion that in some way the Government have magicked in a wholly subjective test, is wrong. I would have been surprised and rather shattered if the Government had gone that far, and I would have suggested that it was far too far to go.

New clause 8 is far more simply worded and clearly provides that

It focuses on the degree of force used, and whether it was grossly disproportionate. That is a much simpler and more straightforward way of viewing it than the convolutions that, the more the interventions have gone on, seem to be coming from those on the Liberal Democrat Benches.

Mr. Heath: The hon. Gentleman says that he does not want to get involved in semantics. I am sorry, but in that case he is in the wrong place. This is what we are about. We are about trying to construe a new piece of legislation here. While he continues in his present position, he will have to grin and bear it, and go through the process of deconstruction of clauses.

I do not agree with the hon. Gentleman. I look at subsection (4) and I see that it is qualified by subsections (5) and (8), which gives that latitude in terms of the state of mind of the person under attack at the time, and allows them to believe something that is wholly wrong, provided that they genuinely believed it at the time and can show that to the court. I look at new clause 8 and I see a quite different test—that it should have been apparent to the person that he was using “grossly disproportionate force”, a term that is undefined. So the householder is still left in the quandary: “Is what I am doing grossly disproportionate? Will a court find at the end of the day that what I did was grossly disproportionate? I don’t know. It’s the middle of the night, I have a golf club in my hand, do I give him a thwack or not?” That is the real problem.

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On that basis, I prefer new clause 6. It is a better formulation. It provides that latitude in law, but at the same time better defines the law. I do not accept that this is a signal, because it goes further than that and changes the ground rules for the legislation that applies. That will be of benefit to householders. New clause 8 may be of benefit, but not as much benefit as the Conservative party appears to think. Its determination to press the new clause to a vote in competition is absurd under the circumstances—grossly disproportionate, I might say.

Miss McIntosh: I congratulate the hon. Member for Somerton and Frome (Mr. Heath) on his sterling performance, but I disagree with most of what he said. I hope that the House welcomes this debate, and I am trying to find the head of the pin on which the Secretary of State for Justice was dancing so that I can join him there.

I hope that the Opposition Front-Bench spokesmen will press new clauses 8 and 9 to a vote. In supporting the Opposition’s arguments, I want briefly to show why new clause 6 is defective. As the shadow Attorney-General has said, the law should be simple, precise and easy to apply, and that is why the Secretary of State has had the hindsight to come forward with the new clause, which I welcome. However, as the shadow Justice Secretary has said, it simply does not go far enough.

I want to focus on the two tests. One is the test of force—we are arguing about whether force is grossly disproportionate or disproportionate, so it is a matter of semantics—and the other is reasonableness. The main reason why new clause 6 is defective is that it does not give enough guidance. It would be helpful if the Minister could clarify for the House how the joint Association of Chief Police Officers/Crown Prosecution Service statement is to be amended.

I believe that new clause 8, in particular, is clearer and would make it easier for a jury or court to reach a decision. New clause 6(1)(b) contains the phrase “reasonable in the circumstances”, but what would those circumstances be and who would judge? Would the reasonable man on the jury decide, or would the reasonable prosecutor decide whether a prosecution would be brought? Furthermore, subsection (4) states:

Again, the Secretary of State’s argument is flimsy and unconvincing in that regard.

The right hon. Gentleman is such a nice person; perhaps that is why he chose the word “nicety” for subsection (5)(a). However, “nicety” is not even as clear as the current joint statement, one of whose sentences starts:

I do not believe that new clause 6 brings anything extra to that. Subsection 5(b) states:

presumably, self-defence. New clause 6 is simply too weak.

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Mr. Straw: I shall reflect on what the hon. Lady has said, but this has been the subject of a huge amount of work. There is an honest argument about whether new clause 6 or new clause 8 is more effective. A point was missed by Conservative Front-Bench Members as they sought to undermine new clause 6. There seems to be an agreement across the House that that new clause should be the basis of the law for the apprehension of a criminal in all circumstances, save in respect of the apprehension of a burglar. On three occasions I have been involved in the arrest of a street robber; in such circumstances, new clause 6, not new clause 8, would apply. I advise the hon. Lady not to be too destructive of new clause 6, because it seems that she accepts it as well.

Miss McIntosh: With the greatest respect, the right hon. Gentleman has to accept that a robbery in an open space, in a public place on a street, is completely different from being attacked in the privacy of one’s own home or business.

Mr. Straw: I do not think that we should have a competition, but I speak from direct experience. Another guy—an elderly gentleman—and I were rolling around in the middle of a carriageway holding a robber whom I had luckily knocked down. He was shouting and screaming for other people of a like mind to join in. I do not think that that was necessarily either a less good or a safer situation than some circumstances—although not all circumstances—in which someone apprehends a burglar. It depends entirely on the precise circumstances of the case. However, no one who has been in the situation that I have described would think that it is easy.

Miss McIntosh: I simply conclude by saying that I rest my case. I commend new clauses 8 and 9 to the House. The prospect of seeing the Secretary of State for Justice embracing or mauling a street robber is too graphic to consider. However, I hope that the right hon. Gentleman will take on board the basis and wording of new clauses 8 and 9 and marry them together with clause 6. Our clauses are clearer, simpler and easier to interpret.

Mr. Bellingham: Members might well believe that I come to this issue entirely on the basis of the Tony Martin case. Tony Martin is a constituent of mine and the case was nearly 10 years ago, when the current Lord Chancellor was Home Secretary. Although I have every sympathy for Tony Martin, I should make it clear that one single case is not a good basis for changing the law. However, the case triggered an unprecedented public debate on householders’ rights and the conclusion was that the law was a complete muddle. There were too many investigations taking place and too many cases going to court. In the heat of the moment, when a householder has to react and take a split-second decision, he needs to know that the law is broadly on his side. The vast majority of the public who have been commenting on this issue feel strongly that burglars and intruders should leave the vast majority of their rights outside the building that they break into or intrude on.

Of course, there will be exceptions to that rule. That is why, in essence, the three private Members’ Bills on this subject were based on the concept of gross
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disproportionality. The first of those Bills was introduced by my hon. Friend the Member for North Thanet (Mr. Gale), the second by my hon. Friend the Member for Newark (Patrick Mercer), and the third by my hon. Friend the Member for Vale of York (Miss McIntosh)—not forgetting my hon. Friend the Member for North-West Cambridgeshire (Mr. Vara), who tried to bring in a Bill but found that there was no time for it. I sat through many of those debates, and in each and every case the Government were incredibly negative, although they had plenty of time to respond positively. Sadly, they are taking action only after a great deal of persuasion and public debate, having eventually realised that the public mood was running against them.

I accept that new clause 6 is a small improvement, but it is incredibly complicated and convoluted. One has to read it about 10 times to make sense of it. As a lawyer, I find it difficult to understand how intelligent lawyers in the Department have come up with a clause that is quite so verbose and complicated. New clauses 8 and 9 have the great virtue of simplicity. The law needs clarifying and changing, and I urge the House to support our new clause. I look forward to hearing what my hon. Friend the Member for Newark has to say.

Patrick Mercer rose—

Mr. Deputy Speaker (Sir Alan Haselhurst): Order. I am sorry to disappoint the hon. Gentleman, but I am going to call Mr. Ed Vaizey.

Mr. Vaizey: It is unprecedented, Mr. Deputy Speaker, that I should take precedence over my hon. Friend the Member for Newark (Patrick Mercer), so I will keep my remarks extremely brief.

We are debating new clause 6 because the Secretary of State for Justice, who has always opposed changing the law in this area, sought an eye-catching initiative at the last Labour party conference, when we were gearing up for a general election. He sat down with his advisers and said, “What can we do to get ourselves on the front page of the newspapers?” They said, “Why not bring forward this policy, which you have always opposed?” The new clause simply restates the law. That is made explicit in subsection (2), which has the gall to cite

to remind people that there is such a thing, and then to restate the defences in existing legislation. Subsection (5) merely adds into what is already a matter of precedent factors that the courts can take into account. The key difference between new clause 6, which does not change the law at all—

Mr. Deputy Speaker: Order—with apologies to the hon. Member for Newark (Patrick Mercer).

Question put and agreed to.

Clause read a Second time, and added to the Bill.

It being three and a quarter hours after the commencement of proceedings on the programme motion, Mr. Deputy Speaker proceeded to put forthwith the Questions necessary for the disposal of business to be concluded at that hour, pursuant to Order [this day] .

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Clause 174


Amendments made: No. 102, page 119, line 46, at end insert—

‘(da) section (Reasonable force for purposes of self-defence etc.);’.

No. 103, page 120, line 22, at end insert—

‘(10) Nothing in this section restricts the operation of section (Reasonable force for purposes of self-defence etc.) and paragraph 20A of Schedule 33 in their application in relation to service offences (within the meaning of that paragraph).’.— [Mr. Hanson.]

Schedule 33

Transitory, transitional and saving provisions

Amendment made: No. 113, page 299, line 17, at end insert—

‘Reasonable force for purposes of self-defence etc.

20A (1) Section (Reasonable force for purposes of self-defence etc.) applies whether the alleged offence took place before, or on or after, the date on which that section comes into force.

(2) But that section does not apply in relation to—

(a) any trial on indictment where the arraignment took place before that date, or

(b) any summary trial which began before that date,

or in relation to any proceedings in respect of any trial within paragraph (a) or (b).

(3) Where the alleged offence is a service offence, that section similarly does not apply in relation to—

(a) any proceedings before a court where the arraignment took place before that date, or

(b) any summary proceedings which began before that date,

or in relation to any proceedings in respect of any proceedings within paragraph (a) or (b).

(4) For the purposes of sub-paragraph (3) summary proceedings are to be regarded as beginning when the hearing of the charge, or (as the case may be) the summary trial of the charge, begins.

(5) In this paragraph—

“service offence” means—

(a) any offence against any provision of Part 2 of the Army Act 1955 (3 & 4 Eliz. 2 c. 18), Part 2 of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or Part 1 of the Naval Discipline Act 1957 (c. 53); or(b) any offence under Part 1 of the Armed Forces Act 2006 (c. 52);

“summary proceedings” means summary proceedings conducted by a commanding officer or appropriate superior authority.’.— [Mr. Hanson.]

New Clause 25

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