5 Criminal Justice (Justifiable Conduct)
Bill
| Date introduced to the House of Commons
Current Bill Number
Previous Reports
| 12 January 2004
House of Commons 36
None
|
5.1 This is a Private Members' Bill introduced by Mr Roger Gale
MP. The Bill would exempt from any criminal liability any householder—or
anyone present in a house with the householder—who takes
action against someone he or she believes (whether reasonably
or unreasonably) to be a trespasser, where the action is taken
(reasonably or unreasonably) in self-defence, in defence of another
person or of the property, or to apprehend a wrongdoer or to prevent
crime (clause 1). An exemption from civil liability would apply
in similar circumstances (clause 3). Under clause 2, the Crown
Prosecution Service, in considering whether to bring any prosecution
in these circumstances, is expressly required to have regard to
the public interest in protection against intruders in the home.
5.2 Under clause 1, the exemption from criminal liability
would apply to any offence committed by the householder, including
murder or manslaughter. A householder would have an absolute defence
to any charge of murder or manslaughter, where he or she asserted
beliefs, however unreasonable, that the person killed had been
a trespasser, and that the killing had been necessary in self-defence,
or in defence of other persons or of property. In such cases,
having regard to clause 2, a prosecution would be unlikely to
be initiated. Furthermore, no civil action in damages would be
open to anyone injured, or to the relatives of anyone killed,
by the householder's actions.
5.3 Article 2 ECHR protects the right to life. The
right to life is one of the most fundamental rights in the Convention
and is subject to very limited restrictions. Article 2.1 states:
"Everyone's right to life shall be protected by law. No one
shall be deprived of life intentionally …". Under Article
2.2, deprivation of life may be justified where it results from
the use of force which can be shown to be no more than is absolutely
necessary in defence of any person from unlawful violence.
5.4 Under Article 2 ECHR, there is a positive obligation
on the State to take reasonable steps to protect the right to
life of individuals.[143]
This includes an obligation to protect against the actions of
private individuals which breach Article 2. There are also similar
positive obligations under Article 3 (freedom from inhuman and
degrading treatment)[144]
and Article 8 (the right to respect for private life including
physical integrity) to protect against physical harm. An important
element of these positive obligations is the duty to put in place
a legal framework which provides effective protection for the
Convention rights. Where essential aspects of rights to life or
physical integrity are at stake, it has been established that
there is an obligation on the state to put in place criminal law
sanctions which ensure effective deterrence against breaches of
these rights.[145]
5.5 This Bill would remove the deterrent effect of
the criminal law in relation to murder, manslaughter and assault,
amongst other offences, in cases which would not be limited to
the use of force which could be shown to be no more than absolutely
necessary in self defence. In removing the deterrent of the criminal
law in this way, the Bill would in our view breach positive obligations
to protect Convention rights to life and physical integrity. We
consider that the Bill would be unlikely to be capable of interpretation
in accordance with the rights protected under the Human Rights
Act, under section 3 HRA. We draw this matter to the attention
of both Houses.
143 Oneryildiz v Turkey , App. No 48939/99,
Osman v UK(1998) 29 EHRR 245; LCB v UK (1998) 27
EHRR 212 Back
144
A v UK, (1998) 27 EHRR 611 Back
145
X and Y v Netherlands (1986) 8 EHRR 235; A v UK,
op cit; Stubbings v UK (1996) 23 EHRR 213 Back
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