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Lord Lloyd of Berwick: I am sorry to add my voice at this stage of the proceedings and I am sorry to have missed, in particular, the debate on Monday on the Conservative amendment. I should now like to say something on the Question whether the clause should stand part. I would not have been in favour of the Conservative amendment for all the reasons given by the noble and learned Lord, Lord Davidson of Glen Clova. To substitute the words “grossly disproportionate” for the word “reasonable” would, as he said, be wrong in principle. It would tilt the balance too far in favour of the householder without adding anything of clarity to the existing law. Moreover, it would have created a false dichotomy between force used in self-defence and force used in prevention of crime under Section 3 of the Criminal Law Act 1967, where no such distinction exists in reality.

On the broader question whether Clause 128 should stand part, I found myself not for the first time in agreement with the approach of the noble Lord, Lord Thomas of Gresford. I can see no good reason to restate the existing law. As far as I know, only two reasons have been suggested. The first is to fulfil the pledge given by the Lord Chancellor at the Labour Party conference. However, it now appears from the letter written by the noble Lord, Lord Hunt, to the noble Lord, Lord Thomas, that the Government have no intention of changing the existing law, so that reason fails. The second reason is to send what is called,

That was the language used by Mr Nick Herbert in the other place. To paraphrase, I would say that it is to get as many votes as possible.

The point was put in more graded language by the Minister, as one would perhaps expect. He says that it is necessary to put the existing law on a statutory basis because,

a nice understatement, on which I congratulate him—

He says that we must therefore send out a “positive message” to the public at large, which appears to be the intention of Clause 128.

Does the noble and learned Lord really believe that the public at large will study Clause 128 in any great detail? Does he really believe that householders up and down the country are waiting anxiously for Clause 128 to become law so that they can know where they stand? If the Government really want to send out a message, I suggest that they cannot do better than repeat the message already sent out by the Crown Prosecution Service and the Association of Chief Police Officers as recently as February 2005. Surely too many messages—assuming that they are ever received by anyone at all, which I doubt—can create only confusion, coming as they do on top of the message sent out by the Lord Chancellor at the Labour Party conference.

In any event, the Minister seemed to undercut his own argument on the need to send out the message

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when he said later in the debate, in answer to a point made by my noble friend Lord Elystan-Morgan that one should have something in the Bill about the burden of proof, that:

That is entirely inconsistent with the main basis on which this clause has been put forward: the need to send a message to the public.

There is a more fundamental reason for opposing Clause 128 standing part. Some years ago there was a proposal to codify the whole of the English criminal law. A code was prepared by that wise and very learned academic, Professor Sir John Smith, now alas no longer alive. I was in favour of codifying the criminal law on the basis of his proposals, but it came to nothing because the Government did not have the time or the energy. In contrast, what we are getting now and what we are seeing in this and many other clauses is the codifying of little bits of the criminal law—taking little bits of judgments from here and there and giving them statutory force, in some cases, as here, verbatim. That is the worst of all possible worlds. It is almost certain that the little bits now being put on the statute book will be shown to be inconsistent with one another in a very few years.

As I have said before, surely it is better not to use politics as the basis of law reform but to rely instead on judges directing juries in accordance with the standard directions of the Judicial Studies Board, a point made by the noble Lord, Lord Thomas, and thereafter relying on the jury to get the right result. The good sense of the jury is a much better defence for householders than anything in Clause 128. If I were a politician, that is the message that I would wish to get across to the public. I hope that between now and the Report stage there can be a measure of agreement between all parties so that the Conservatives will drop the amendment that they have threatened to bring back and the Government will drop this clause.

The Earl of Onslow: I should like to make a brief point, which backs entirely what the noble and learned Lord has just said. Recently a shopkeeper killed his assailant with a knife. The police said that the gentleman would not be prosecuted because he had acted reasonably under the circumstances. Those circumstances were completely different from those in the Martin case. If I remember rightly, the chap was running down the stairs in front of Martin. However much you might sympathise with Martin’s predicament—it was a very unpleasant one, because he had been burgled several times before—you still do not shoot teenagers in the back when they are running downstairs. It seems to me that the law is perfectly all right and need not be changed. I am not a lawyer but that is what, looking at it from the outside, I think. There has been a lot of froth in the press about this, so we should be defrothing if we possibly can.

Lord Elystan-Morgan: I feel privileged to be able to say that I support completely the wise and authoritative words of the noble and learned Lord, Lord Lloyd.

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Perhaps I may return to one matter that I raised a few days ago: the absence in Clause 128 of a clear statement that this is not a defence, and the fact that there is no onus whatever on the defendant to raise the defence. For those in the Chamber who are not lawyers, I am sure that the point is well appreciated in any event. In some cases where the prosecution is able to prove the outlines of an offence, it is for the defendant to establish his innocence on the balance of probability; otherwise he will be convicted. This is not such a situation, but that is what lawyers usually mean by a defence in those circumstances. I therefore do not believe that too much emphasis can be laid on the point that this is not a defence.

I shall not repeat what I quoted from the judgment of Lord Justice Winn in the Wheeler case in 1967, but I would ask the noble and learned Lord the Lord Advocate to study those words carefully. They show that—if that judgment was correct, and I believe it to be as correct as any judgment could be—it is sailing into danger to suggest to a jury that there is any question of a defence such as self-defence and the judge must immediately correct himself or herself in that regard. In those circumstances, although my submission did not find immediate favour with the noble and learned Lord the Lord Advocate on Monday, will he be so gracious as to reconsider the matter?

4.30 pm

Baroness Butler-Sloss: Despite the illuminating instruction that we had fairly late on Monday evening, it seems a pity that we had to have it, when I would respectfully agree with every word that the noble and learned Lord, Lord Lloyd of Berwick, has said. Clause 128 should not stand.

Lord Neill of Bladen: I know that every second I occupy keeps the Committee from blasphemy—and I tender my apologies to certain Benches in particular—but I entirely agree with the noble and learned Lord, Lord Lloyd. This is codification of one tiny bit of the law. It leaves out various things.

The first thing that it does not do is state what the defence is. It is most extraordinary. The noble and learned Lord, Lord Woolf, does in his judgment. In one sentence he says, “This is what the defence is, whatever you call it. This is it”. Here it goes straight on to tell you all about the “reasonable” element in it. You never get there. You do not have anything in this about the onus of proof at all. I am afraid that I thought the Minister’s theory on Monday night—that the man in the street is well aware that the defence of self-defence is not really a defence but something the prosecutor will have to prove—came from cloud-cuckoo-land. No one who is not a lawyer could conceivably know the law’s position on this. There is nothing in this about whether action in defence of property is covered by self-defence. Forget about the 1967 Act, what does the common law say? The common law was fairly clear on that point.

In other words, this is tinkering. Let me give a classic example of tinkering, and then I will sit down. Subsection (4)—on which I concentrated my fire earlier, before it was withdrawn, but I can say it here—states:



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“Disproportionate” and “unreasonable” are exact synonyms. I looked this up in Roget’s Thesaurus, which, against “disproportionate”, has “not reasonable” or “unreasonable”. This is just tinkering by taking a familiar and well known word, altering it and putting it into statute. It is not worth doing. The whole clause should be abandoned.

Lord Clinton-Davis: For once in my life I entirely agree with the noble and learned Lord in his submission. The burden of proof falls unmistakably on those who advocate a change of words, and I do not see that they have yet met it. I shall not expatiate at length because the case has been put forward admirably by the noble Lord. We would be well advised to think again about the issue.

Lord Thomas of Gresford: A mischief of this provision is that self-defence operates not only in one criminal offence but across a whole range of criminal offences; it has a different character depending on the context. The Government are codifying a component of what may appear in many trials of many defendants in different offences. It is quite wrong to do that.

The noble Lord, Lord Neill, referred to the fact that it does not refer to defence of property. That instantly brought to mind a case in which I was involved where a defendant, from his bedroom window, shot a person who had thrown a brick through the fanlight above his door. The person was retreating down the path, laughing his head off. The defendant shot him with a .22; he was a warrant officer. That particular individual had chosen the wrong man. As the defendant was completely acquitted, defence of property was sufficient in that case. The clause says nothing about that.

That is just one example of how taking a component and trying to put it in a crystallised form for all time is quite contrary to the common law—which, as we discussed earlier, develops in accordance with changing circumstances and the changing society in which we live. The critical point is that for 700 or 800 years it has been the common sense of the jury that has ultimately determined guilt or innocence, something else that the Government are always chipping away at.

Lord Davidson of Glen Clova: I have a clarificatory comment to make. Although I have had the pleasure of being Advocate-General for Scotland for getting on for two years, I have never at any stage been the Lord Advocate. The Lord Advocate, who is a devolved Minister, is very obviously a lady and might take it somewhat amiss if it were thought I was usurping her role.

Of course the Government adhere to the notion that the common sense of the British jury is one of the strongest guardians of our freedoms in this country. I am grateful to the noble and learned Lord, Lord Lloyd of Berwick, for identifying the difficulty with the Conservative amendment, where it seeks to bring in notions of “grossly disproportionate”, as being an area in which it would be an unhelpful addition were it ever to be advanced.



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In his criticism of Clause 128, the noble and learned Lord questions the utility of the clause. The notion underlying that, with which the Government seek to push the clause forward, is the purpose of clarifying and reinforcing what the law is, as it is broadly understood. That has a clear utility. True it is that the householder will not be anxiously wishing to scan a Bill, and that the leaflet produced by the CPS and the Association of Chief Police Officers is extremely useful; we do not in any way step away from the utility of that leaflet. I repeat that we are seeking to reinforce and clarify the law that provides meaningful and real protections for those in the difficult position of having to deploy self-defence.

The Earl of Onslow: Is the Minister saying that the law is not clear now, when the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lords, Lord Neill and Lord Elystan-Morgan, are all saying that it is crystal clear?

Lord Davidson of Glen Clova: To be clear, I am not saying that. The law, when one traces it through the various cases, can be divined. The proposals here contain clarification and reinforcement by bringing together the parts of the existing common law. I am supported in that view by the opinion of the Joint Committee on Human Rights, which welcomed the clarification that Clause 128 was to provide. That also establishes why what has been described as codification is in fact of high utility, because it permits one to find in one place the essentials of the law of self-defence. This is not, I would respectfully suggest, a bringing together of little bits of the law on self-defence; it is the most important area in which that area of the law is created.

The noble Lord, Lord Elystan-Morgan, made the point clearly and forcefully that what one is dealing with here is self-protection rather than self-defence. One very much takes that on board. I would submit that that may be the area in which the judge can give direction to the jury; it may not be necessary for it to be incorporated here.

The noble and learned Lord, Lord Neill of Bladen, raised a number of points, including the defence of property. What one is seeking to do in this legislation—the noble Lord, Lord Thomas of Gresford, picked up this point—is to apply a broad understanding of self-defence not just to the householder but also to the person in the street, the woman who has to fight off an attempted rapist and the Armed Forces, which also have to guide themselves by these important principles. That is why one is seeking to put in place this broad setting-out of the precepts of self-defence.

The noble Lord, Lord Clinton-Davis, inquired why one is seeking simply to change words. We are not seeking to do that, because many of the words in Clause 128 are drawn from the exact words used by Lord Morris of Borth-y-Gest in Palmer. Overall, the Government see this as an important and meaningful way of putting forward clearly the basis of self-defence.

Lord Lloyd of Berwick: I am very grateful to the former Advocate-General for giving way. As he will know better than any of us, this clause applies only to

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England. If it becomes statutory, what will be the position in Scotland, where the law of self-defence will continue to be on a common law basis? Will he refer the matter to the Scottish Law Commission so as to bring the two jurisdictions into line with each other?

Lord Davidson of Glen Clova: I do not wish to be drawn into discussing my own personality, but I was formerly the Solicitor-General for Scotland. I have never been, and never intend to be, Lord Advocate. I fully appreciate the noble and learned Lord’s point. I should perhaps point out that I am a UK law officer; I am not some Scot who is simply down here to tell you what to do with your own law, which I would never dream of doing.

A noble Lord: Unheard of.

Lord Davidson of Glen Clova: One of my fellow countrymen may occasionally have offered some guidance in that area, and no doubt it was very welcome. Scotland has faced certain difficulties in relation to the extent of self-defence, and at this moment it is, as I understand it, considering the way in which it has been developed in this particular area. So the noble and learned Lord, Lord Lloyd, should perhaps not be excessively concerned that a Scot is living in ignorance of what is happening in this Chamber; this is a matter with which they, too, are concerned.

Lord Neill of Bladen: Will the noble and learned Lord look at a learned article emanating from the University of Aberdeen which suggests that the whole of the law on self-defence is contrary to Articles 2 and 5 of the convention on human rights?

Lord Davidson of Glen Clova: I am conscious that there is academic argument in this area. As matters stand, the Government are reasonably confident that Clause 128 reflects the common law as it currently stands.

Clause 128 agreed to.

[Amendment No. 142A not moved.]

Clause 129 [Imprisonment for unlawfully obtaining etc. personal data]:

Baroness Miller of Chilthorne Domer moved Amendment No. 143:

The noble Baroness said: I am conscious, especially with five right reverend Prelates on their Benches, that I am detaining the Committee before the debate on blasphemy. However, I am afraid that I have to underline why Clause 129 is important.

The Government have, for various reasons, dropped clauses from the Bill. We are anxious to underline why we think Clause 129 is particularly important and should stay in the Bill.



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4.45 pm

The clause increases the penalties for unlawfully obtaining personal data. At the moment, the penalty is a pretty derisory fine, and the serious and organised nature of data crime is such that an adequate legislative response is now necessary. As it stands, the clause implements proposals put forward by the Information Commissioner as part of the solution to the enormous problems that he exposed in his report, What Price Privacy? He exposed an extensive and lucrative illegal trade in confidential personal information. There were networks of middlemen, often involved or associated with the private investigation industry. Their clients ran from private individuals to financial services companies, insurers, journalists, law firms and even local authorities. It was all set out in his report.

The suppliers and, in many cases, the customers involved in the trade, were committing an offence under Section 55 of the Data Protection Act 1998. I will not detain the House by giving many examples, but a private investigator passed on address details obtained by deception from a medical centre to an abusive husband who was trying to track down his wife who had moved on to start a new life. There are very serious issues here.

The Information Commissioner discovered that there was a tariff of prices that were charged for obtaining confidential information such as telephone information, vehicle and other records—there is a real catalogue of difficulties here. The report demonstrated that, although it has been a criminal offence for years, the current penalty regime is too weak and needs revision. Those conclusions have been backed up by numerous committees of both Houses. In your Lordships' House, the Science and Technology Committee’s report, Personal Internet Security, urged the Government to introduce measures such as this and recognised that existing penalties for offences were quite inadequate. Your Lordships' Constitution Committee report into a surveillance society came to a similar conclusion. Several other committees in another place, including the Home Affairs Committee, were also of that opinion. Fundamentally, the low penalties devalue the offence and mask the seriousness of the crime.

Some of the concerns raised about the way in which this clause is currently framed have come from the media. Media concerns stem from the fact that, at the moment, there is no definition of public interest. A journalist who obtained information that was in the public interest would, if this clause were not amended, be liable to prosecution under a considerably increased penalty, which we would be fully supportive of in other circumstances. The Government need to revise this along the lines of the amendment that I have tabled—which I am sure is imperfect and the Government could introduce a much better one—to defend the position of journalists who are genuinely working in the public interest. I urge them to do that.


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