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I hope that that reply gives some satisfaction to the noble Lord. I repeat, the consultation has not yet begun.

Lord Lucas: I will give the noble Lord an opportunity to rise to his feet if he can answer two questions that come out of what I have said. When is the consultation going to start and can he actually name anyone who wants this power other than the Government themselves, for reasons unnamed? Is some outside body or someone involved in the industry asking for this power? I would really like to know, because I have yet to meet them. I would like to understand what is motivating the wish for this. I am not going to get anything today, so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Thomas of Gresford moved Amendment No. 138:

Clause 128, page 88, line 37, after second “to” insert “all the circumstances, including”

The noble Lord said: Last September, as we were expecting an election to be announced, the Lord Chancellor, Mr Straw, announced to the Labour Party conference that he was, indeed, seeking two regimes for the law of self-defence, with a separate regime for householders. The points he put forward at that time were taken up and expounded on Monday night by the noble Lord, Lord Kingsland, on behalf of the Conservative Benches, and we had an excellent discussion about it.

The government Benches and ourselves were ad idem that the law of self-defence should be the same, whether it concerned a householder, a person in the street or any circumstances such as that.

Therefore, what emerged in the Bill was an attempt by the Government to codify the common law of self-defence, regardless of any other matter relating to the law of assault, the law of murder or anything of that sort. This was simply a codification of self-defence but, if that is what it is supposed to be, I have some criticisms with which I do not propose to weary your Lordships for very long.

In a very thoughtful speech on Monday, the noble Lord, Lord Elystan-Morgan, referred to the case of Gladstone Williams, where the Court of Appeal held in 1987 that a defendant charged with assault could plead self-defence successfully if she honestly but unreasonably believed that she was being attacked. The rationale of that unreasonable belief is that, in order to commit an offence of assault, the defendant requires an unlawful intention, and an individual who honestly believes that he is acting in self-defence against a perceived attack does not have such an unlawful intention, regardless of how unreasonable his perception may be of the risk that is advanced towards him. Lord Lane, the Lord Chief Justice at the time, said:

“The reasonableness or unreasonableness of the defendant’s belief is material to the question of whether the belief was held

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by the defendant at all. If the belief was in fact held, its unreasonableness, so far as guilt or innocence is concerned, is neither here nor there. It is irrelevant”.

The Government have sought to put that principle into this codification section, but subsection (8) states:

“For the purposes of references in this section to what D believed, it is immaterial whether—

(a) any belief of [the defendant’s] was mistaken—

that is fair enough—

(b) (if it was mistaken) the mistake was reasonable”.

That is directly contrary to the sentence of Lord Chief Justice Lane’s judgment that I read out—that the reasonableness or unreasonableness of the defendant’s belief is material to the question of whether the belief was held by the defendant at all. In other words, the jury is entitled to look at all the surrounding circumstances when it tries to come to a conclusion about what the defendant really did believe, as opposed to what he said he believed. That is the purpose of one of our amendments to this clause.

The other aspect is perhaps best encapsulated in short terms in the judgment of the noble and learned Lord, Lord Woolf, the Lord Chief Justice in the case of Martin in 2002. Your Lordships will recall that that case, in Norfolk, received a great deal of publicity at the time. The noble and learned Lord, Lord Woolf, described the law of self-defence in these terms:

“When this defence is raised, the prosecution has the burden of satisfying the jury so that they are sure that the defendant was not acting in self-defence”.

Therefore, the burden of proof is on the prosecution to satisfy the jury that it was not a case of self-defence. On Monday, the noble Lord, Lord Elystan-Morgan, pointed out that the wording of the clause is defective in that it refers to a defence of self-defence. There is no such thing as a defence of self-defence; it is for the prosecution to prove that self-defence does not arise. The noble Lord, Lord Elystan-Morgan, in a speech with which I agreed, said that it should be made explicit in the Bill where the burden of proof lies. In his judgment, the noble and learned Lord, Lord Woolf, went on to say:

“In judging whether the defendant had only used reasonable force, the jury has to take into account all the circumstances, including the situation as the defendant honestly believes it to be at the time when he was defending himself”.

So when the jury are considering whether the force used in self defence was reasonable, according to the then Lord Chief Justice, the noble and learned Lord, Lord Woolf, it must look at all the circumstances, including the honest, even if unreasonable, belief of the defendant.

4 pm

However, Clause 128(3) makes no reference to “all the circumstances”. It reads:

“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”.

In other words, the jury must only look at the honest, if mistaken or unreasonable, belief of the defendant in considering whether the degree of force was

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reasonable, whereas, in the case of Martin, the Court of Appeal held that the jury must look at “all the circumstances” of which the belief of the defendant was only one. This may sound like a bit of a legal quibble but, when a person can be faced with a serious charge such as murder, it is important that the law is clear. I submit to the Committee that if the Government are seeking to encapsulate the common law and do no more, then they have failed in the aspects to which I have referred. I beg to move.

Lord Neill of Bladen: I have no objection to the addition that the noble Lord suggests; it is correct. However, I do not agree with what he said about the two judgments that he cited, the last being that of the noble and learned Lord, Lord Woolf, in the Martin case. I sought to demonstrate to Members of the Committee on Monday evening that there are two different and distinct currents of authority. The case of Palmer, from the Privy Council judgment of Lord Morris in 1971, is cited in the 2008 edition of the leading textbook on criminal law, Archbold, at paragraph 19/41:

“If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary, that would be most potent evidence that only reasonable defensive action had been taken”.

That is different from the approach of standing back, which the cited passage of the noble and learned Lord, Lord Woolf, leads to. Looking at it with cool detachment, you take the circumstances as he believes them to be; as an easy example, he thinks he is being attacked by three people when there is in fact only one. You also take account of what he thought that he had to do to protect himself against the peril which he thought existed. For that purpose you look into the mind of the accused. Unless I am getting it wrong, my learned friend the noble Lord, Lord Thomas of Gresford, would not look at it that way.

One particularly does not want to re-hear the Martin case here, but the fact is that psychiatric evidence was tendered in the Court of Appeal to the effect that the defendant was particularly sensitive to the danger of being attacked owing to his circumstances, life and mind. He had a heightened degree of awareness—or fear—of such an attack; indeed, his premises has been attacked six times. However, that psychiatric evidence was ruled inadmissible for self-defence. It was, however, treated as good evidence for an entirely separate purpose: to show that the accused had diminished responsibility and was therefore not guilty of murder, only of manslaughter.

The practical effect of the case was that with a verdict of manslaughter the tariff was five years’ imprisonment, and as Martin had already been in for four years, he got out after one year. If the evidence had been held admissible and applicable in the law of self-defence, that would have constituted a complete defence for the whole charge and he would have walked out of court immediately as an innocent man. Therefore, which test is applied makes a difference. In agreeing with the language of the noble Lord, Lord Thomas of Gresford, I would not like any future reader of the report of this debate to think that he was right in what he said about the operative test.

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The Advocate-General for Scotland (Lord Davidson of Glen Clova): The operation of the law on self-defence is an area of genuine public concern justifying the sensitive and detailed consideration that ministerial colleagues have given to it in recent months. I acknowledge that noble Lords also wish to consider carefully the Government’s proposal and have expressed a desire to subject it to greater scrutiny than was possible at Second Reading. I welcome such interest and am pleased that we are able to continue discussion here today.

I would like to address an important question raised at Second Reading and in the amendments tabled by the noble Lord, Lord Thomas of Gresford. Having had the benefit of prior notice of his thinking, I welcome further reflection on the valuable points that he raises and I thank him for his contribution to the debate. The noble Lord’s first concern and the related Amendments Nos. 138 and 139 respond to a view that the Government’s clause may have moved away from a formulation used in the well known Tony Martin case. The formulation contained in the judgment of the noble and learned Lord, Lord Woolf, could appear at first sight to stipulate that the defendant’s belief be considered as just one of several factors to be considered when assessing all the circumstances. The noble Lord fears that the Government’s clause thus departs from the existing common law position by providing that the question whether the degree of force used by the defendant was reasonable in the circumstances is to be decided by reference to the circumstances as the defendant believed them to be alone.

I am pleased to allay, I hope, the fears held by the noble Lord, Lord Thomas. At this point, I shall also adopt the view held by the noble Lord, Lord Neill, of the judgment in Martin by the noble and learned Lord, Lord Woolf. My contention is that in the Martin case matters went further than the noble Lord, Lord Thomas, suggests. We believe that the common law test of reasonable force is faithfully reflected in the Government’s clause, which sets out the key test that the defendant is to be judged according to his own perception of events. The noble Lord, Lord Thomas, shared with noble Lords a quote from the noble and learned Lord, Lord Woolf. The noble and learned Lord went on to say:

“It was for the jury ... to decide the amount of force which it would be reasonable and the amount of force which it would be unreasonable to use in the circumstances in which they found that Mr Martin believed himself to be in”.

Similarly, in the case of Owino, Mr Justice Collins, sitting in the Court of Appeal, explained that the test required the jury to decide whether the force used was reasonable in the circumstances as he believed them to be. The Judicial Studies Board made the same point in its specimen direction. That requires a jury,

“to consider the matter of self-defence in the light of the situation which D honestly believed he faced”.

The direction goes on to indicate that a defendant who is labouring under a mistake as to the facts must be judged,

“according to his mistaken belief of the facts”.

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In summary, although I welcome the intention of the considered Amendments Nos. 138 and 139 tabled by the noble Lord, Lord Thomas, I suggest that they are not necessary. Clause 128 and its handling of the circumstances is, I submit, a faithful reflection of the common law position. Nothing in case law suggests that the reference to “all the circumstances” in the Martin judgment should be elevated into an element of the established common law principle that the degree of force used must be reasonable in the circumstances as the defendant believed them to be. I therefore ask the noble Lord to withdraw his amendment.

Connected to the noble Lord’s concern is the question first raised by noble Lords at Second Reading, which has been discussed again today. At Second Reading, the noble Lords, Lord Thomas of Gresford and Lord Neill of Bladen, and the noble Baroness, Lady Kennedy of the The Shaws, all expressed concern that the Government’s proposals appear to be changing the test applied to the degree of force permissible from an objective basis to a subjective one. I can confirm that that is not the intention; I understand that my noble friend Lord Hunt has written to noble Lords accordingly. Clause 128 makes it clear that a person using force is to be judged on the basis of the circumstances as he believed them to be, but—and it is an important but—within the context of those circumstances the force used must have been reasonable, which is an objective test. I hope that that satisfies the concerns of noble Lords.

The second set of amendments tabled by the noble Lord, Lord Thomas, Amendments Nos. 140 to 142, relate to force used in mistaken belief. They raise an interesting question: does Clause 128 suggest that the jury must pay no regard whatsoever to the reasonableness of the defendant’s mistake? As it stands, the clause allows a defendant to use an objectively reasonable degree of force in the circumstances as he honestly, albeit possibly mistakenly and unreasonably, believed them to be. Although the reasonableness of the defendant’s belief is immaterial as long as it is honestly held, the court should still be able to take into account the reasonableness of a professed belief when deciding whether his belief is to be believed in the first place. The defendant has to have held that belief and, if the jury rejects his evidence on that account, he will not enjoy the protection of the defence. Of course, the more fantastical and unbelievable the defendant’s account of his belief, the less likely the jury is to give it credence. Common sense would indeed prevail and is, I submit, reflected in Clause 128.

We are, however, always open to suggestions that might improve the clarity of the legislation and are actively looking to see whether a revision might usefully reflect the noble Lord’s observation. We will therefore consider Amendments Nos. 140 to 142 further, and I thank the noble Lord, Lord Thomas, for raising the matter.

Reference was made to the case of Williams (Gladstone). It is perhaps helpful to look at another case, the case of Oatridge, wherein Lord Justice Mustill, as he then was, made reference to Williams

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(Gladstone) and considered that the test might also benefit from development in that regard. I will come on to that.

In the light of the explanations provided and the undertaking to consider important aspects of the amendments, I ask the noble Lord to withdraw his amendment. I understand that the noble Lord, Lord Neill of Bladen, also has an amendment in this group, but I am not sure whether he intends to move it.

Lord Neill of Bladen: I am not going to move it. I have said what I wanted to say on the topic and I shall refer to a later amendment to be moved by my noble and learned friend Lord Lloyd. That will suffice for the afternoon.

Can the Minister confirm that the Government are still standing by subsection (5)(b), which is a statement of the Palmer test of Lord Morris,

“that evidence of a person’s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose”—

that is, for self-defence—

“constitutes strong evidence that only reasonable action was taken by that person for that purpose”?

Lord Davidson of Glen Clova: I am grateful for that clarification. I confirm that the Government intend to stand by the test in subsection (5)(b). Accordingly, if there is no additional point, I renew my request to the noble Lord, Lord Thomas, that he withdraw his amendment. I said that I was going to make some reference to Oatridge in relation to Williams (Gladstone), but perhaps it is sufficient to leave this for the moment. I was referring to Lord Mustill in the Court of Appeal in relation to the development of the questions.

Lord Elystan-Morgan: Is the Committee now considering the content of Amendment No. 140? I appreciate that the amendment has not been moved.

Lord Davidson of Glen Clova: If I heard aright and we are referring to Amendment No. 140, I confirm that we are considering that at the moment, but I renew my undertaking to look at the matter again.

4.15 pm

Lord Elystan-Morgan: I make these points about Amendment No. 140. Although I appreciate everything that noble Lords have said so clearly and eloquently about the development of the law from Palmer in 1971, I submit that there has been a creative, progressive and significant development as a consequence of the cases of Shannon, which was decided shortly after Palmer, if I remember rightly, of Williams (Gladstone) in 1987 and of Beckford in 1988. This development is more than just a gloss; it is an extension of Palmer. Lord Morris of Borth-y-Gest in Palmer did not spell out specifically that a mistaken and unreasonable, albeit genuinely held, belief was nevertheless exculpative of the defendant’s situation. The Beckford and Williams cases, however, clearly state that. I therefore ask the noble and learned Lord

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to confirm that nothing in the clause in any way casts doubt on the validity of Williams (Gladstone) and of Beckford.

If that is the situation, I respectfully submit with regard to Amendment No. 140 that it is not necessary to spell out anything further with regard to this situation. The law can simply be put in this way. There are two tests: an objective test and a subjective test. The objective test is whether an unseen bystander looking at the situation would say, “Yes, clearly the force that has been used by the defendant in that case was manifestly excessive”—not marginally excessive, but clearly, fundamentally and manifestly so. The second test is that the jury must look at the situation through the eyes and the mind of the defendant and, unless the jury is satisfied that the defendant did not genuinely hold such a belief, the second limb will not have been overcome and the defendant will be entitled to be acquitted.

In so far as the Government are considering the situation—I am grateful to them for their chivalry and, indeed, their common sense in this—I ask them to bear in mind that it might be better not to restrict the jury or to try to lead it by the nose to the conclusions that it should reach. I therefore commend for their consideration the principle enshrined in Section 3 of the Criminal Law Act 1967, which considers a person’s intention and foresight in relation to a situation. It is of considerable value to consider the approach enshrined in that provision, which states:

“A court or jury, in determining whether a person has committed an offence,

(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reasons only of its being a natural and probable consequence of those actions; but

(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances”.

A jury should therefore look at the generality of the circumstances in their totality. To lead the jury by the nose to a certain approach and a way of reasoning might not be altogether helpful.

Lord Thomas of Gresford: I thank the noble Lords, Lord Neill and Lord Elystan-Morgan, and the Minister for their replies. I respectfully disagree with the noble Lord, Lord Neill, and agree with the noble Lord, Lord Elystan-Morgan, that the common law has developed since Palmer and that the statement of the law, as set out by Lord Chief Justice Woolf, is the more developed and up-to-date statement of the law of self-defence.

Those noble Lords who are anxiously awaiting the abolition of the common law offence of blasphemy will perhaps appreciate that, if we ever got around to codification of the criminal law, European legislation would seem minute in comparison. Even without legal aid, we have had a very interesting debate, which I shall need to study at some length. The Minister has given an undertaking and, in the light of his undertaking, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 138A to 142 not moved.]

On Question, Whether Clause 128 shall stand part of the Bill?

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