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Amendment, by leave, withdrawn.

Lord Hunt of Kings Heath moved Amendments Nos. 88A to 88D:

(a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but(b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not—(i) it was mistaken, or(ii) (if it was mistaken) the mistake was a reasonable one to have made.

On Question, amendments agreed to.

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The Chairman of Committees (Lord Brabazon of Tara): My Lords, if Amendment No. 88E is agreed to, I cannot call Amendments Nos. 89 or 90.

Lord Hunt of Kings Heath moved Amendment No. 88E:

On Question, amendment agreed to.

[Amendments Nos. 89 to 91 not moved.]

Lord Kingsland moved Amendment No. 91A:

(a) the degree of force used was grossly disportionate, and(b) this was, or ought to have been, apparent to the person using such force.

The noble Lord said: My Lords, I am not sure to whom my noble friend was referring when he said that there were certain Members of the opposition Front Bench who do not always listen to his wisdom.

The Earl of Onslow: My Lords, I was not referring to the opposition Front Bench; we all know that they are fountains of reasonableness and common sense who listen to other people’s points of view. I was looking at certain people opposite who on occasion can be stubborn.

Lord Kingsland: My Lords, I have provoked exactly the response I had hoped for from the noble Earl.

I am aware that time is short today. This is the fourth and last day of Report. Although the reason for those circumstances can be laid largely at the Government’s door, I do not want the Government to think that we will be in any way obstructive, and we shall certainly try to progress matters as rapidly as we can.

The matter of self-defence has already been discussed fairly fully in Committee, so it is not necessary for me to go through the arguments I made in support of my amendment with the same thoroughness today; I think they are well recalled. The origin of self-defence in the Bill lay in the proceedings of the Labour Party conference last autumn and an undertaking given by the right honourable gentleman Mr Straw to bring the matter forward. I intend to make no further comment about the consequences of that in the Bill.

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My amendment addresses one particular set of circumstances: those in which an individual is confronted by a trespassing intruder on building premises. The amendment is cast in terms of buildings generally, but we had particularly in mind a situation in which a trespasser entered someone’s home, probably during the hours of darkness. We have taken a different approach from the one normally taken by the common law, which is to substitute the concept of proportionality for the concept of reasonableness. In other respects our approach does not change; in other words, instead of applying a test of what was reasonable in the circumstances in which the defendant saw them subjectively, the test we wish to apply is that of gross disproportionality in the circumstances as the defendant subjectively saw them. We believe that is a clearer test and, in the circumstances of an intruder late at night where someone is perhaps awakened from peaceful slumber, a more appropriate test. Subjectively, the situation is likely to be extremely alarming. That, of course, applies to the subjective circumstances.

We go on to say that unless the person into whose house the trespasser has entered behaves grossly disproportionately, the benefit of the doubt of the law should be on his or her side. That should be distinguished from other circumstances in which the law of self-defence applies. I explained the background to this in Committee. I have simply set out the principles of our amendment and I propose to leave it at that. I beg to move.

4.15 pm

Lord Thomas of Gresford: My Lords, what the right honourable gentleman Mr Jack Straw did not say to the Labour Party conference last September was that he was going to bring forward in the Bill a clause to codify the law of self-defence. In a pre-election splurge, he implied that the law of self-defence would be altered so as to gain what he thought would be popular support from the red tops for making it easier for a householder to shoot people. We do not believe that there should be a distinction drawn between defendants depending on their particular position. As has already been said by many noble Lords in the previous debate, we think that it is quite open to a jury to take into account the particular frightening circumstances of having a burglar in the house.

As the clause is now, even as improved by the amendment following my previous criticisms, it is useless. It does not do anything except to repeat the common law. As I said earlier, it does so in a piecemeal way. Only this aspect is attacked or dealt with, whereas many other aspects surrounding this area of violence to the person, particularly in relation to the law of murder and manslaughter, are not dealt with by the Government. They are subject to discussions. We are having discussions in a few days’ time on how these matters should be advanced with the Minister from the House of Commons, Maria Eagle, who has been put in charge of it.

If there are to be substantial changes to self-defence in any way, they should run alongside changes to the law of homicide and, possibly, to other crimes of violence. If we are unable to come to any firm conclusion

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in our discussions with Ministers, it should go to the Law Commission, as the noble Lord suggested in our previous debate, for a proper and thorough discussion and the production of a draft Bill. I am happy to tell your Lordships that the noble and learned Lord, Lord Mayhew, referred to the reports of the Law Commission gathering dust on a shelf somewhere, presumably now shifted to another dusty shelf in the Ministry of Justice. But there are ongoing discussions as to how Law Commission Bills can be brought forward under a simplified procedure, so that it would be possible to put its recommendations into effect in a proper and considered way, and in a short time.

There are two reasons why we should get rid of this clause. First, it does not do anything. Secondly, it would inhibit any further discussion that is already ongoing as to this part of a much wider subject. It is premature and unnecessary. On the amendment in my name and that of the noble and learned Lord, Lord Lloyd, I shall be asking the opinion of the House.

Lord Neill of Bladen: My Lords, I shall make two points quite simply on this amendment. First, it treats quite separately the Section 3 defence. We are off into a statutory provision in a 1967 Act which dealt with the use of force in achieving an arrest or preventing crime, and simplifying the language. They were the two main target areas. It has already been held in case law that the accused may take advantage both of Section 3 of the Act and of the common law of self-defence, and therefore it is totally undesirable to hive off Section 3 by altering the language and introducing stuff such as “disproportionate”, which is not being introduced anywhere else in Clause 75. That is not the sort of error that the Law Commission would make. I say that with respect: it is my view that if two defences are running, they ought to use the same language.

Secondly, what is the logic of limiting this to buildings? I go back to Mr Singh’s case, which I mentioned in Committee. Mr Singh came out of his shop, got into his car and put his bag with the day’s takings beside him. A man who turned out to be a criminal with a record as long as your arm, awaiting trial about a fortnight later, came up wielding what must have been quite a big knife, smashed the car window and tried to grab the bag. Mr Singh defended himself. According to the Times on 21 February and a small piece in the Daily Telegraph, Mr Singh could not give a coherent account of what happened, but the assailant ended up in the road with his own dagger through his heart. Why should not that case receive the sympathetic consideration of the noble Lord, Lord Kingsland? It cannot because the incident did not happen on a premises. The noble Lord is making a narrow proposition and the principle is thoroughly undesirable.

Baroness Butler-Sloss: My Lords, Amendments Nos. 88 to 91 seek to make changes to this difficult and sensitive area of the law, and they have been tabled by noble Lords across the Chamber. As my noble friend Lord Neill of Bladen said in relation to an earlier amendment, supported by the noble and learned Lord,

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Lord Mayhew, and me, this needs the attention of the Law Commission. What depresses me is the fact that the noble and learned Lord, Lord Davidson, did not refer in his full response to why this should not go to the commission. If it is thought necessary to change the law, let that particularly sensible body look at it first, before we consider a series of amendments. I would be grateful if the Minister could tell us why he does not think it is even worth referring to the commission.

Lord Elystan-Morgan: My Lords, I have no objection to the matter being considered by the Law Commission, although I believe that the substantive law is in a perfectly proper state and that the difficulties are so limited that they can be dealt with by way of reference to the Attorney-General.

Baroness Butler-Sloss: My Lords, I sought to make the point that if there is to be a change in the law, it should go to the Law Commission. I should make it clear that I see no need for the existing law to be reinterpreted in statute form. However, changes are being put forward. I do not think that such changes should go through until the Law Commission has had a proper look at the position. That is what it is there for.

Lord Elystan-Morgan: My Lords, I respectfully agree. Perhaps I may take up the point made so firmly by the noble Lord, Lord Thomas of Gresford—the distinction made in the amendment with regard to a building and self-defence exercised outside a building. It may well be that there was an intention to provide special protection for a person in his own home, but whereas every home is a building, not every building is a home. One can imagine many circumstances where self-defence is most acutely justified that have nothing to do with being inside a building. A person sitting in his own parked car might have to defend himself in exactly the same way.

In 1922, I believe, there was a decision of the Criminal Division of the Court of Appeal in the case of Hussey. As I recall, the facts of the case were that a person was the tenant of a flat and agents of the landlord unlawfully broke into the flat. The person got up from his chair and shot one of the agents dead. The Criminal Division of the Court of Appeal held that in those special circumstances, there should be no question of a person’s right to exercise greater force than might be justified in other circumstances. For decades there was some doubt so far as the learned editors of Archbold and other publications were concerned as to whether that represented the law, but I think I am right in saying that in the past 20 or 30 years it has been made clear that Hussey is not good law. I respectfully suggest that drawing any distinction, as this amendment seeks to do with the best of intentions, would be entirely improper.

Lord Davidson of Glen Clova: My Lords, Amendments Nos. 91A and 92A take us back down a somewhat familiar path towards the grossly disproportionate tests for self-defence in respect to householders only. I shall be brief in setting out once more why the Government cannot support such a change.

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First, these amendments would introduce multiple tests for self-defence. Not only would these tests unfairly favour householders over others using force in self-defence, they would also risk further confusing the issue in the eyes of the public and front-line practitioners. However, the main point of contention on which I would like to focus is the resounding conclusion reached by the Joint Committee on Human Rights in its 15th report. The committee noted therein that,

It then goes on to say:

of the European Convention—

of the European Convention.

These amendments would be likely to give rise to serious human rights concerns, create further confusion through multiple tests and provide for unequal protection for citizens depending on their physical location, as the noble Lord, Lord Neill of Bladen, clearly identified. I cannot see how they are preferable to the provision in the Bill which serves to clarify—not codify—the law.

It has been said that, to some extent, the clause fails to follow the current common law, a point made by the noble Lord, Lord Elystan-Morgan. But, with respect, the clause reflects the common law and, to an extent, the Joint Committee on Human Rights concurs in that view. It states in paragraph 1.68 of its 5th report:

Perhaps that is also an answer as to why one is not minded to send this area to the Law Commission. A report by the Law Commission is, of course, extremely helpful where one is considering innovation or alteration. What is not sought here is either innovation or alteration; what is sought is to make clear what the common law is in a statutory form.

The Earl of Onslow: My Lords, when the noble and learned Lord says that it makes it clear, to whom is the law on this issue not clear? Do the judges not understand it? Why does it need to be put down again? It seems to me that all noble and learned Lords have got it in their heads extremely easily and understand it completely, so what is the point of them writing it down again?

Lord Davidson of Glen Clova: My Lords, it may not come as a complete surprise that the audience for questions of self-defence extends beyond this House. The purpose of this is to provide clarification to the public. There have been attempts through the leaflet

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provided by the Association of Chief Police Officers, which considers that clarification by this provision would be helpful. So it is not simply the Government’s determination in some way to codify this point, as it is described; rather it is to provide a clarification that operates beyond this Chamber for the benefit of the whole public.

Lord Elystan-Morgan: My Lords, I hope I may ask the Minister without discourtesy if he could assist me in these two matters. He says that there is no question of changing the common law. Therefore, with the authority of the cases of Gladstone Williams and Beckford, decided in 1984 and 1985 respectively, and the whole chain of cases that followed those decisions, does he accept that that is the current state of the law? Secondly, does he accept that to enjoin a jury to consider whether a person’s sincerely held view is sincerely held as against a template of what is reasonable would, in fact, commit the very error that the learned judge committed in the case of Williams, which was castigated by the Court of Appeal?

Lord Davidson of Glen Clova: My Lords, that indicates that areas of clarification may be required in our law. The clause seeks to reflect the language more in Palmer—the language of Lord Morris of Borth-y-Gest—and it was immediately identified that certain passages from Palmer were reflected in the provision. I hope that is a sufficient answer to the noble and learned Lord, Lord Mayhew, the noble Lord, Lord Neill, and the noble and learned Baroness, Lady Butler-Sloss. It is for that reason that we do not seek to have the issue remitted for consideration by the Law Commission.

Against this background, I believe that we should take this opportunity to address legitimate concerns around this issue and use Clause 75 as a pragmatic and sensitive way forward. Therefore, I ask the noble Lord to withdraw his amendment.

Lord Kingsland: My Lords, I am grateful to the Minister for his response and to all those who have contributed to the debate.

I take up one point that the Minister made about the relationship between disproportionality and the Human Rights Act. The Minister suggests that my amendment would not conform with the Act because of the way in which the European Court of Human Rights has interpreted the concept of proportionality.

I respectfully disagree with him. The test in our law is reasonable in the subjective circumstances in which the defendant saw a matter. It is perfectly possible that behaving reasonably in the subjective circumstances in which a defendant saw a matter could be a disproportionate response that was, nevertheless, within the definition provided by English law. It follows from what the Minister said that, if his proposition is correct, our law itself could be in breach of the convention. That is precisely why we have used the concept of “grossly disproportionate”—to make it absolutely clear that we do not fall foul of this trap, which I hope that I have just elucidated.

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I have listened to the wisdom of your Lordships on this matter, and it has given me grounds for reflection before asking your Lordships’ opinion. However, having reflected, I wish to test the opinion of the House.

4.33 pm

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