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The nice simplicity of the professor’s proposition is somewhat qualified by what follows when he goes into some of the case law. I quote from page 775:

to use Lord Lane’s language,

Then the words of Lord Morris are quoted in the case of Palmer. Subsection (5) uses this rather curious language, which is an exact reflection of what Lord Morris of Borth-y-Gest, whom I well remember, said in the Palmer case in 1971:

In other words, you look at what the man thought in the moment of agony or anguish. That case was followed by a judgment in the Court of Criminal Appeal in a case called Shannon in 1980. It is easy to pick up on what was going on:

Therefore, the Court of Appeal makes an express decision that in particular circumstances you will not judge the case by what the reasonable onlooker

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watching the event thought but by knowing the facts as were believed by the man who had put forward the defence of self-defence.

One begins to wonder whether this amendment has something to do with the Martin case. One tries to use one’s imagination in deciding where the Government might be coming from. Everyone remembers the Martin case. He was the lonely, eccentric farmer whose house had been raided about six times. On the particular night, the intruder was a boy—a youngish person—and Martin took his gun and shot the boy in the back as he was leaving. In the end he was convicted and the issue went to the Court of Appeal. The noble and learned Lord, Lord Woolf, was the Chief Justice presiding when the case went to appeal. This passage is of interest and I hope will not upset him.

Then, with temerity, Professor Card adds:

Noble Lords will be grateful to hear that I shall conclude my citation at that point. My simple point is that the noble Earl is changing the common law with the adverb that he wants to insert. We should not be conducting this exercise at all. It can all be worked out in future case law. It is not something that should be tampered with by this type of legislation.

3.45 pm

The Earl of Onslow: My Lords, perhaps I may make one very quick point. When we discussed this matter in the Joint Committee on Human Rights, the Martin case did not influence us. However, the committee was influenced by an excuse for doing something being based on such an unreasonable belief that no one should accept that belief. I am now very much better instructed than I was before the noble Lord, Lord Neill, stood up. I shall almost certainly withdraw the amendment, but for the record the Martin case was not an influence on what we said.

Lord Judd: My Lords, I hope my noble friend will be able to look sympathetically at the wisdom and good sense in the amendment. It has clearly been thoroughly thought about within the Joint Committee on Human Rights and we should do the committee the courtesy of demonstrating that we are thinking about it equally seriously. One slight doubt about the circumstances in which the amendment would become relevant is how far, in a real situation of this kind, which can become pretty heated, people will sit around saying, “What is reasonable? Now, wait a minute, I can act only reasonably, so what is reasonable?”, work that out and then take action. I have a slight anxiety about what would really happen in the heat of the moment. However, that makes it all the more important for the law to be very clear that in a highly charged situation

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people cannot simply take the law into their own hands. “Reasonable” applies in every sense, not least for the person doing what he genuinely believes is reasonable.

This is a highly charged and quite emotional area. There is a lot of media comment, much of which is out to work up emotion on the issue. If the media are very anxious to work up emotion on this and to have a simplistic emotional justification for anything that someone might do, it is all the more important for the law to emphasise that anything that happens must be reasonable and must be believed by the person doing it to be reasonable. The amendment has raised a very important point and I should like to hear some assurance from my noble friend in his response.

Baroness Butler-Sloss: My Lords, this is a question not of clarity but of a change in the law. It is a difficult, delicate and extremely sensitive area. The noble Lord, Lord Neill of Bladen, has done the House a great service in telling us what the author of the leading law book on criminal law has said. I agree with the noble Lord that if there is to be a change, it is eminently suitable that it should be looked at by the Law Commission coldly, quietly and over time, and not if I may say so respectfully, by this House at this stage.

Lord Mayhew of Twysden: My Lords, I add a modicum of support for what the noble Lord, Lord Neill of Bladen, said, in urging that if there is to be a change it should be left to the Law Commission. Fortunately for all concerned, I never had to direct a jury, although I have addressed numerous juries in my time. I cannot think of an occasion when a jury by its verdict demonstrated an absence of common sense, which is the great justification for retaining the jury system. If I had to direct a jury along the lines of the text comprised in these grouped amendments, I would find it difficult to know who would be more deserving of sympathy—myself or the jury. The matter would be far better left to the Law Commission. On the whole it is generally well understood case by case where the law stands and juries produce common-sense results. If the Government are looking for an initiative to be taken, let them refer it to the Law Commission and then break the habit of a lifetime by legislating promptly according to the Law Commission’s recommendations.

Lord Elystan-Morgan: My Lords, I respectfully agree with the sentiments of the noble and learned Lord, Lord Mayhew, and other noble Lords. I am na├»ve enough to believe that the state of the law is thoroughly satisfactory and well understood by juries in the vast majority of cases. There may be a small minority of cases when there are complicating factors, but it is entirely proper for a judge to direct a jury on these lines, and the prosecution has to establish beyond reasonable doubt on both an objective and subjective test that it has expunged totally the consideration of self-defence. It is not a matter for the defendant to establish it or even to raise it, but for the prosecution to expunge it. The two limbs of the “reasonable” test are: members of the jury are asked to place themselves

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in the position of an invisible bystander; then on the subjective test, they have to place themselves in the mind of the defendant and look at the situation through the defendant’s eyes. They are simple tests that ordinary jurors well understand.

I am sure that the House is deeply indebted to the noble Lord, Lord Neill, for the tour d’horizon that he conducted in relation to this area of law. With the greatest respect, I do not follow—or at any rate invite the House not to follow—the authority that he quoted. I quote from the 11th edition—the 2005 edition—of Smith and Hogan Criminal Law, which makes no such inflated claim as the authority quoted by the noble Lord. Under the heading:

the learned editor of that book states:

a matter decided in 1984—

The House will appreciate that the amendment proposed by Her Majesty's Government does exactly what the learned judge did, which was found to be wrong by the Court of Appeal in that case. If the learned editor of Smith & Hogan is correct, and I believe him to be correct, that is exactly the effect that the government amendment, well meaning though it is, would have. It would not improve the position of the defendant; it would make it much more fraught and would place him in much greater jeopardy. It would not clarify the situation, which demands an appreciation of an objective test and a subjective test. If you mix the two, you create monsters. Interbreed the two, and you have immense difficulty. The amendment tabled by the Government enjoins the jury to decide a subjective matter by an objective test. That is wholly the wrong way to go about it. It is guaranteed to complicate and obfuscate the situation so far as the jury is concerned. On previous occasions—and I do not apologise for this—I have drawn attention to the fact that the tenor of Clause 75, as it is now numbered, is to suggest, mildly at any rate, that this is something for the defendant to raise as a special defence. It is not that; the onus is on the prosecution to expunge that possibility altogether. The best solution would be to omit the clause. I do not believe that it is necessary. The law is well understood and works well.

In relation to the amendment tabled by the noble Lord, Lord Kingsland, and others, I take the point that it may well be, as a matter of administrative policy, proper that some of these complicated and serious cases should be referred to the Attorney-General for her advice about whether the prosecution should proceed. That is the best possible way of dealing with them.

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Lord Kingsland: My Lords, although I am always eager to support my noble friend Lord Onslow in the Lobby, on this occasion—I hope he will forgive me for saying so—it would be more prudent for your Lordships' House to adopt the proposal made by the noble Lord, Lord Neill of Bladen. Indeed, I think I heard my noble friend veering towards that position as the noble Lord was speaking.

The Advocate-General for Scotland (Lord Davidson of Glen Clova): My Lords, as well as responding to the amendment moved by the noble Earl, Lord Onslow, I shall also touch on the amendments tabled by my noble friend Lord Hunt of King’s Heath, and I propose to begin with them. The noble Lord, Lord Thomas of Gresford, tabled amendments in Committee. Some of them reflected a concern that what is now Clause 75 could be read as precluding a court paying any regard to the reasonableness of a mistaken belief relied on by a defendant. That was never the Government’s intention. It was always felt that the courts would use common sense when assessing such claims. However, on reflection, we considered that the clause could benefit from further clarification. The resulting government amendments address that concern and clarify that the reasonableness of a professed belief is relevant to judging the genuineness of the belief. It is a crucial element that will inform the jury’s belief in the defendant’s case. However, a defendant is still entitled to have his actions judged on the basis of his view of the facts as he honestly believed them to be, even if that belief was mistaken or unreasonable in hindsight. I thank the noble Lord, Lord Thomas, for his assistance and hope that he and the House welcome these useful amendments. Indeed, I might even dare to hope that the noble Lord will now reconsider his support of the amendment tabled by the noble and learned Lord, Lord Lloyd, to remove the clause altogether, otherwise we will lose his valuable contribution.

I turn to the amendments tabled by the noble Earl, Lord Onslow. They, too, focus on the question of mistaken belief and stem from observations made by the Joint Committee on Human Rights, which is concerned about that aspect of the current law. In general, the committee continues to welcome our efforts to clarify the law on self-defence. I may also observe that it also supports our firm resistance to any attempts at introducing a “grossly disproportionate” test—something to which I shall come later when considering the amendments tabled by the noble Lord, Lord Kingsland.

Amendments Nos. 88 and 90 would mean that a defendant would be judged on the facts as he saw them only if his belief was “reasonable”. Rather surprisingly, such a requirement would run counter to the concern that householders and others should be judged sympathetically on the basis of their mistaken beliefs. Otherwise, it would erect a new and further hurdle to the plea of self-defence. Even had a defendant used more force than was in fact needed because he made an unreasonable mistake in his assessment of the danger faced, it seems unduly harsh to prevent him from relying on self-defence if in fact he had no aggressive intent and was simply reacting to the circumstances as he saw them, or at most an aggressive intent that was justifiable in reaction to and in the light of his mistaken perceptions.

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On that general point, it is important to recognise that although the current law allows defendants the benefit of their unreasonable mistaken beliefs, it does not by any means give them carte blanche. The degree of force used must still be objectively reasonable in those circumstances, so that there is not the dramatic immediate response of picking up the gun or the Japanese sword, which the noble Earl possibly saw as the next step. Amendments Nos. 88 and 90 therefore appear undesirable.

The noble Earl’s second set of amendments, Amendments Nos. 89 and 91, draw a similar conclusion to his previous set. However, they apply the restriction only to agents of the state. They are, in effect, an alternative, more restricted approach to addressing the issue of mistaken belief. The Joint Committee on Human Rights has suggested that human rights law necessitates an amendment to make clear that honest but mistaken beliefs must be based on good reasons when force is used by state agents. The Joint Committee argues that the Strasbourg law is “clear”—it uses that term—that allowing a defendant to rely on a mistaken belief that the use of force was necessary is compatible with Article 2 of the European Convention on Human Rights only if the belief was reasonable. The committee also suggests that that conclusion is particularly inescapable in the case of state agents.

We are aware of various indications in the European convention case law that might be read as supporting that view. The letter to the Joint Committee from the Minister of State, the right honourable David Hanson, of 12 March 2008, mentioned those, including, but not limited to, the reference to “good reasons” in the McCann case in its most recent report on the matter.

However, we maintain that the position in human rights law is not in fact clear. We consider that the case law falls well short of a requirement to change our law. The passage in McCann to which the Joint Committee refers says that a defendant can rely on a mistaken belief which he holds “for good reasons”, but it does not say in terms that that is an exhaustive account of the situations in which a defendant may rely on a mistaken belief. What is clear is that the Strasbourg court has never taken the opportunities that it has had to rule that our domestic law is incompatible with the convention, as might perhaps have been expected if in fact there were an obvious incompatibility.

On the substance of the matter, we submit that case law suggests that the current common law position is compatible with the requirements of the European convention in Article 2. It should be borne in mind that states are permitted a certain flexibility in determining how their national law deals with these requirements. We consider that the current position in our domestic common law, as reflected in the Bill, achieves the right balance between the need to protect life and the rights of persons accused of crime.

As previously indicated, in coming to this view we rely on, among other things, the following. First, a person who professes an unreasonable mistaken belief as the basis of his use of force in self-defence is not

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automatically given the benefit of being judged on that basis. Rather, he is to be judged on the facts as he claims to have seen them only if the court believes that his view was genuinely held. If a defendant’s professed belief is unreasonable, that can be a powerful reason for disbelieving him. Secondly, even in cases where a person’s use of force is to be judged on the circumstances as he mistakenly saw them, the degree of force used must have been objectively reasonable in those circumstances. The Government therefore acknowledge that the position is arguable, and indeed has been argued in legal journals. Details of this were given in the letter from the Minister of State, to which I have already referred.

There is, however, no consensus that the Joint Committee’s view is right. In the same letter, we mentioned that the leading textbook, Smith and Hogan Criminal Law—a source on which the noble Lord, Lord Elystan-Morgan, relies—takes the view that to invalidate a defendant’s right to rely on a mistaken belief unless that belief was reasonable would be,

On the general issue of a different and higher test for state agents, and for the Armed Forces in particular, some might argue that the state should train its agents to act only on the basis of well grounded beliefs. However, after careful consideration the Government feel that this expectation would place a tremendous burden on service personnel who already have to take snap decisions under high pressure when on duty in dangerous parts of the world. We question whether noble Lords would wish to impose such a burden unless we were compelled to do so by law.

Moreover, this question again goes back to the credibility of the mistaken belief. Those considering a case, or a jury taking its decision, may well find an unreasonable mistaken belief on the part of, say, a highly trained member of the Armed Forces less credible than if held by a frightened member of the general public. There is therefore already a self-adjusting mechanism in the law without having to set a different test.

Setting European convention debates to one side, introducing two tests for self-defence—one for the public and one for state officials—risks further confusing the matter. The Government are clear that there should be one test for all. We must be clear and consistent and not unnecessarily burden people, whether civilians, police officers or members of the Armed Forces, with additional pressures in those very difficult situations. I therefore urge the noble Earl to withdraw his amendment. Although I appreciate that the noble Lord, Lord Neill, and others have made an attack on the whole clause—I will return to this in the event that the amendment to strike out the entire clause is advanced—the clause is primarily an attempt to clarify the common law and to keep it as it is rather than to permit innovation.

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Lord Thomas of Gresford: My Lords, I shall make my position clear. I argued both at Second Reading and in Committee that the clause, as drafted by the Government, was completely unnecessary and should be struck out of the Bill. I shall come to this in due course when we reach the relevant amendment. I suggested to the Government that their attempt to codify the common law was flawed. That is what the Government have responded to in the amendment tabled by the noble Lord. I am grateful to him for taking that on board, but it in no way removes my opposition to the clause being in the Bill at all. Piecemeal reform of the law in this field is not desirable.

The Earl of Onslow: My Lords, it is extremely daunting, as someone who, before the Flood, collected five O-levels and never went to university, to get up and be surrounded by hordes of extremely expensive lawyers giving you their advice.

Lord Henley: They eat lots of fish.

The Earl of Onslow: My Lords, they do. I was completely convinced by what the noble Lord, Lord Neill, said. I also thought it was interesting that the noble and learned Lord, Lord Davidson, was almost arguing at the end for taking the whole clause out. He was basically saying, “Is this the law? Is that the law? Is the third thing the law?”, and implying that this was satisfactory. If the law is satisfactory, don’t let’s change it. Because I believe in listening to people’s arguments, unlike some people on the Front Bench whom I may or may not know, I have listened to the argument of the noble Lord, Lord Neill, and have been convinced that the amendment I have moved is unnecessary and nearly wrong. Therefore, with enormous pleasure, I beg leave to withdraw it.

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