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In considering for the purposes of this Part whether the defendant should have taken particular steps to meet a standard of care, a court shall have particular regard to whether the claimant—
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(a) entered onto land or into premises with the intention of committing an offence, or
(b) otherwise willingly accepted a risk as his (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another)."

The noble Lord said: My Lords, I apologise to the Minister, but it was important for the House to express its view on the principle of the previous amendment. I am, I hope, warming to my theme of targeting changes in culture and restoring standards of decency and respect. I recognise that the Minister shares this objective; I simply reiterate that, whatever happens today, I stand by ready to discuss further with her ways in which the Bill can be improved.

On the whole question of trespassers and their rights, I am sure that the then government had the best of intentions when they introduced the Occupiers' Liability Act 1984, which gave unlawful visitors to land a right to sue if they were injured because of negligence. I suppose I have to say that because I was a member of that government, and I know that that decision was taken following critical examination by the Law Commission and the House's Judicial Committee of the law relating to occupiers of land in the Herrington v British Railways Board case. It was recognised that, in certain circumstances, people were treated as trespassers who had visited land unlawfully but who were still being exposed to unnecessary risks. With the benefit of hindsight, perhaps we should have been a little more careful. This Act has led to burglars and other criminals believing that they have a right to sue if they are injured during the commission of an offence.

Following the infamous Tony Martin case, the present Government took action in the Criminal Justice Act 2003 after a good deal of pressure from the Opposition. But that legislation deals only with cases in which the burglar is injured as a result of the direct act of the householder, either by assault, by deliberate injury or by depriving the claimant of his liberty. What we are talking about in this amendment is quite different. Claims have been brought by adults who trespass on land and then injure themselves. Perhaps they fall off a roof or, as in the latest high-profile case, they fall off the outside of a fire escape. These are people who are taking obvious risks and putting their own safety in jeopardy as a result.

The Prime Minister has said repeatedly in the past couple of years that he wants society to take a different attitude to risk. He wants to replace, "I know my rights", with, "I know my responsibilities". So do I, and this amendment springs from that principle. With the passage of time, I have no hesitation in saying that that 1984 Act has ultimately brought imbalance rather than balance to the law. I use that phrase because I know that it warms the heart of the Minister, who is constantly trying to achieve balance. I now believe that we should rein back the ability of trespassers to sue for injuries sustained either when they entered on to land intending to commit a criminal offence or when they took a deliberate risk. This is of course another aspect, which we ventilated and debated at length in Grand Committee when we paid particular attention to the
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question of children being exposed to risk of injury. That is why our amendment preserves the rights of children, who I accept should be treated differently.

According to the amendment, there must be an element of either an intention to commit a criminal offence or a willing acceptance of risk. Those concepts would dovetail neatly with existing law, and would restrict the application of the clause to cases involving older teenagers who were well aware that what they were doing was risky or wrong. I also emphasise that the clause which I propose in Amendment No. 5 does no more than impose on the court an obligation to have regard to such matters. So in many ways we are back to the noble Earl's point about sending messages. Cases in the past few years have shown that one cannot always rely on the lower courts in our civil system to get these matters right at the outset. Too often, the correct public policy decision is reached only in the Court of Appeal or, indeed, in our Judicial Committee. I believe that this amendment would send a clear message to the courts and to the public that certain types of behaviour should not open the door to compensation. I beg to move.

Lord Goodhart: My Lords, there was no intention in Amendments Nos. 3 and 4 to change the law. In the event, we decided that we could support the amendment of the noble Lord, Lord Hunt of Wirral, on the basis that the point will be reconsidered before Third Reading. However, this amendment is in a different category. It amends the substantive law of trespass. Although the Occupiers' Liability Act needs some change, I am a little concerned about changes of this kind being introduced without the more detailed previous consideration that they would receive if they were included in another Bill. I shall be interested to hear what the noble Baroness has to say.

The Earl of Erroll: My Lords, I now understand the reaction when I was talking about Amendment No. 3. I had not read this properly and I did not realise that it could be read, quite rightly, as protecting a landowner against people running down a footpath and so on. I entirely agree with the amendment. I believe that we should pass it and if it needs tidying up, just as with Amendment No. 4, it can be revisited behind the scenes before Third Reading.

This is a problem of not being able to push matters harder in Grand Committee. One ends up pushing amendments harder on Report, when one should be tidying up what has happened in Committee. We should not have amendments at Third Reading, unless they are absolutely necessary for further tidying up after Report stage. Everything is being delayed a stage and the principle makes the situation dangerous. We have to push amendments on Report in case they are not brought forward at Third Reading and we know that tidying up is required as a result of discussion with parliamentary counsel.

I believe that we should definitely pass this amendment and do some tidying up with parliamentary counsel. The amendment covers the problem of burglars injuring themselves. Although
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I accept that this would not cover someone deliberately setting a man trap—perhaps rightly—it would protect one against a burglar falling through a roof or some particularly stupid act, the burglar having taken a difficult route.

Paragraph (b) covers something that I am worried about: people coming on to land and carrying out perfectly lawful activities. The only point about which we need to be careful—this may need tidying up but I think we should pass what is here first—is that we should not, for example, require a signature on a form from everyone to say that they accept the risk. Also we should not require a plethora of signs around the countryside saying, "If you run down this footpath you do so at your own risk". We should have common sense about such matters.

Nowadays everyone complains about street furniture, saying that drivers are so distracted by a plethora of signs that they do not know what they should do, which results in accidents. Equally, if one goes into the countryside and is greeted by 101 signs at the beginning of every footpath or every possible cross-country entry to a footpath, saying, "Watch you do not get bitten by adders", or "Do not disturb the wildlife", one does so at one's own risk. By passing a sign, one is willingly accepting that it is at one's own risk but what do you do about those who cannot read? Does the sign need to be in Braille for the unsighted? The height of the sign will probably matter in case someone is in a wheelchair, as we know from the NERC Bill. We have to accept that "willingly accepted" implies a notion of common sense and that signatures on forms will not be required. With the suggestion that a statement to that effect would be wonderful, I think this is a very good amendment.

5 pm

Lord Monson: My Lords, I, too, have an attraction to the amendment. As I understand it, as a non-lawyer, it would not take one back to the pre-1984 position, in so far as it would apply only to those who trespassed with a view to committing a crime. It would not cover simple trespass, whereby someone wandered on to land accidentally or without any intention of committing crime. That is desirable and, for that reason, I wholly support the amendment.

Baroness Ashton of Upholland: My Lords, I was grateful for the apology from the noble Lord, Lord Hunt of Wirral, for winning the last amendment. I, too, stand by what I said, and I accept entirely what he was seeking to achieve. If we are able to retain it within the legislation on the grounds that, as he recognises, none of us is seeking to change the law, I would be delighted. We will discuss the wording that might ensue from that at the earliest opportunity.

As the noble Lord, Lord Goodhart, said, this amendment is different, as it takes us to a different place. Like him, I consider that if one were to alter the Occupiers' Liability Act 1984, separate legislation would be better as it would allow a fuller consideration. That is an important point, which noble Lords need to take on board.
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Let me explain why I do not wish to accept the amendment. The noble Lord, Lord Hunt of Wirral, has already indicated what we did within the Criminal Justice Act 2003, while recognising that that was about trespass—or assault as I know it as a non-lawyer—against the person. I have checked, and we can find no evidence whatever of any reported case that has found in favour of criminals in terms of negligence. I would therefore argue that the courts are doing their job extremely well. In any event, these claims seldom arise, and as noble Lords involved in the legal profession in particular will know, the courts already take into account all the circumstances of the case. A number of factors will limit the possibility of any claim by a criminal succeeding, and do so effectively, as borne out by the lack of evidence of such claims.

For example, the courts will always take into account the reason why a trespasser was on the property, which is clearly relevant to foreseeability and the steps that it is reasonable to take to avoid a risk of injury to persons on a property. The amendment seems intended to go further in providing for the courts to take into account the intention of the trespasser. We believe, however, that the courts do that very well already. Any claim by a criminal is likely to raise the common law maxim, which I have in Latin, but which I will say in English—an action does not arise from an unjust cause. How far that maxim would remain applicable over and above the statutory provision that the amendment would make is not clear.

In practical terms, it is also difficult to assess the intentions of the claimant and to establish whether they entered on land intending to commit an offence. Of course, if a burglar comes into one's house in the dead of night, that is clear cut; but there will be cases that are not clear cut. It is therefore important that we allow the courts to determine the matter as they currently do. We believe that the amendment could create some arbitrary outcomes. As I have indicated, the Occupiers' Liability Act 1984, were it to be looked at again, should be looked at separately. I am always willing to pass on that view to my ministerial colleagues with that responsibility. The Act provides, of course, that no duty is owed in respect of risks willingly accepted as his by the claimant. The amendment uses the same words, but for the different purpose of deciding what should be done to meet the standard of care. My second concern is therefore that this amendment might create confusion in the law, which the Government could not accept.

Of course, the question of whether a claimant willingly accepted a risk as his is a well established principle of common law—you cannot sue for something to which you expressly agreed; again, I have the Latin version of that, and though noble Lords would like to hear it, I hesitate to try to get my Latin accent accurate. That is always taken into account by the courts when deciding any claims. If we wished to re-examine the particular statute, we should do so appropriately and not via this Bill. There is no evidence to suggest that the courts are doing anything other than considering the issues appropriately in
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terms of acceptance of risk and the balance to be struck between rights and responsibility. We therefore think that the amendment is unnecessary.

Whereas I fully accept the need to deal with issues of perception, and I understand the principle of the last amendment put forward by the noble Lord, Lord Hunt of Wirral—even though I could not accept the amendment as it stood—I will now be in a slightly different position. The principle behind Clause 1 is to try to tackle the perception. This is a different case, because it is about changing the law, which is not the appropriate way to tackle this issue. I hope that the noble Lord will withdraw the amendment and allow the Government to take the matter forward on a different route if that seems appropriate.

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