Committee stage in the Lords
- Speaker
Lord Thomas of GresfordLiberal Democrat- Quote
- Does the noble Lord agree that we would not have this in the Bill at all were it not for what the Lord Chancellor said at the Labour Party conference and the fact that he has clearly resiled from the position he was trying to persuade the delegates—the brothers—that they should take?
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- 21:07
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- Speaker
Lord Neill of BladenCrossbench- Quote
- I welcome and support this amendment. Members of the Committee will be pleased to hear that it enables me to make the central point that I was going to make later on my own amendment, Amendment No. 138A. I welcome this amendment because of the language which would go into the 1967 Act and become a new subsection (1A) of Section 3, that language being, “the degree of force used was grossly disproportionate, and … was, or ought to have been, apparent to the person using such force”. That is in harmony with the language to be found in Clause 128(5). That language is a direct quotation out of the judgment of Lord Morris in Palmer in 1971, AC 814. In effect, we look into the mind of the accused: what did he think he was doing? Did he think he was doing that which was necessary to defend himself? That is a subjective test. It is supported in a leading textbook on criminal law, Archbold, at paragraph 19/41 of the 2008 edition. In my respectful submission, that is to be preferred to the objective test. I shall give a classic statement of the objective test taken from Card, Cross & Jones Criminal Law, the 17th edition published in 2006 at paragraph 19.8. There it is put this way: “Except that it is based on the facts as the defendant believed them to be, the test of whether reasonable force has been used in the prevention of crime, self-defence etc is an objective one. In other words, the question is whether, on the facts as the defendant believed them to be, a reasonable person would regard the force used as reasonable in self-defence etc”. Having taken the facts as the defendant believed them to be, in answering the question, “Did he use excessive force?”, we can look at what the reasonable man would think about it. That is quite contrary to the Lord Morris test found in Clause 128(5). The objective test, again, you find in the Martin case, where the noble and learned Lord, Lord Woolf, the then Lord Chief Justice in the Court of Appeal, said at paragraph 7 of the judgment of the court: “As to the second issue, as to what is a reasonable amount of force, obviously opinions can differ. It cannot be left to a defendant to decide what force it is reasonable to use because this would mean that even if a defendant used disproportionate force but he believed he was acting reasonably he would not be guilty of any offence”. On the Palmer test in subsection (5), you look to see what the person reasonably thought that he ought to do in the critical situation in which he found himself. I remind the Committee of the case of Mr Singh, which we all read about in the newspapers last week. He was getting out of his office, going home with the day’s takings when an ex-criminal, a man with a record—Mr Singh did not know that, of course—smashed the window of his car and tried to grab the bag with the takings in it. The man who attacked him was armed with a knife and Mr Singh defended himself. He was cut in his head; he had a knife wound in his head and other knife wounds on his body. But he kept fighting and the matter ended up with the attacker reeling away from the car with his own knife stuck into his chest, and he subsequently died. That is a classic example of a man in the agony of the moment doing everything he can do to protect himself and there is no question that he is an innocent man. In the circumstances, he was arrested and questions of a murder charge, manslaughter charge or a charge of assault occasioning grievous bodily harm were all investigated. Fortunately there is a happy ending: later in the week he was cleared of all suspicion and the police declared that he was a free man. That is an example of looking at how someone behaves in what I call the agony of the moment. This approach is supported in the European Court of Human Rights. I refer to the case of Andronicou v. Cyprus, decided in 1998, 25 European Court Reports, page 491. An armed man was holding a woman hostage and the police in Cyprus had to deal with the situation. Mr Andronicou had a gun and was shooting at the police; they returned the fire and, sadly, both Andronicou and the girl were killed. The court said in interesting language: “The Court cannot with detached reflection substitute its own assessment of the situation for that of the officers who were required to react in the heat of the moment in what was for them a unique and unprecedented operation to save life. The officers were entitled to open fire for this purpose and to take all measures which they honestly and reasonably believed were necessary to eliminate any risk either to the young woman’s life or to their own lives”. That is a Palmer test being applied by the European Court of Human Rights, which is quite a good guide for us. I welcome the amendment because it squarely brings out that focus on the mind of the defendant and rejects what I call the card, Cross Jones test of extreme objectivity where, with detached reflection, the jury is supposed to substitute its own opinion of what the emergency called for.
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- 21:15
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- Speaker
Lord Elystan-MorganCrossbench- Quote
- I do not believe it was ever necessary for there to be such a provision as Clause 128. If that clause had managed to draw clear boundaries where boundaries not so clear now exist, it would have been justified. If it changed the law, particularly in a progressive direction in favour of the defendant, there would be justification. In my respectful submission, the clause does not achieve either of those purposes. My first objection is that the whole slant of what is suggested in the clause is wrong. It suggests that self-defence is a defence, but it is not; self-defence is a situation that the prosecution must expunge to the point where a jury is satisfied that it has proven that position beyond all reasonable doubt. To refer to it as a defence is very wrong. Rather than put my own arguments, I shall quote the words of Lord Justice Winn in a decision of the Court of Appeal in Wheeler in 1967 that set out the position much more succinctly than I ever could. He said: “wherever there has been a killing or the infliction of violence not proving fatal, in circumstances in which the accused puts forward a justification such as self-defence, it is quite essential that the jury should understand that the issue is not properly to be regarded as a defence; and where the judge does slip into the error of referring to it as a defence, it is particularly important that he should use language that suffices to make it clear to the jury that it is not a defence in respect of which any onus rests upon the accused, but a matter which the prosecution must disprove as an essential part of their case before a verdict of guilty is justified”. Those are well measured, wise words that, to my mind, completely undermine the whole structure of Clause 128. The intentions behind that clause may well have been good and honourable; they may have had something to do with the effect of the heady wine of the hustings on Mr Straw in the autumn of last year. Be that as it may, the clause tends to give a slant with regard to self-defence that is most unfortunate so far as a jury is concerned. The second objection concerns the way in which the so-called defence is set out. It is true that in subsection (5)(a) there is a direct quotation from the words of Lord Morris of Borth-y-Gest in Palmer in 1971: “a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action”. Those words are essentially taken from the words of Mr Justice Cardoza some 30 or 40 years earlier, when he said something like this: “You cannot expect a defendant in those circumstances”—he was speaking of the circumstances of self-defence—“to weigh in the fine scales of a jeweller’s balance exactly the amount of force to use”. Therefore, in so far as that expresses the necessity of a jury being sure that it is not marginally but fundamentally that the use of force exceeded, the first test, the objective test of unreasonableness, is satisfied. The second part of the subsection is rather a précis of what Lord Morris said. Even there, though, the clause is less than just to the position of a defendant. Subsection (5)(b) reads: “that evidence of a person’s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose”. It says “strong evidence”. Lord Morris’s words were “most potent evidence”, which to my mind is one shade beyond that.
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- 21:15
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- Speaker
Lord DearCrossbench- Quote
- In rising to support the amendment of the noble Lord, Lord Kingsland, I find myself following the noble Lord, Lord Elystan-Morgan, who has very adequately covered what I was going to cover at much less length and with much less erudition; that is, Palmer, Wheeler and the subjective test. I shall not repeat that, save to associate myself with all his remarks. I shall say, fairly briefly, what I said when we debated the previous amendment before the break; that is, what impact the attitude of the prosecuting authorities has on the proposed defendant. I perhaps do not need to remind noble Lords that we are dealing with something of great public concern. We have seen a number of high-profile cases, going back to the days of Martin, the Norfolk case, which was not a good case in point, and, more recently, the case of Singh, which was. We have been talking about public concern about house-breaking and burglary, which translates into very real fear. The clarity that the law requires has been very adequately set out in the amendment. I shall focus my attention on what the prospective defendant has to face—not only the shock of the event itself, finding somebody in a darkened room and a darkened place and what follows, but then the intervention of the lawful authorities, the police, who will undoubtedly question him and if he is lucky bail him. There is then the press speculation and the embarrassment, doubt, fear and deep worry that follow—and then, one hopes, the CPS disposes of the case. But it could well be, as it has been in the past, a different and much more elongated course of events. An arrest would inevitably be followed by being fingerprinted and photographed and a DNA test being taken, the person being charged and the case being referred to the CPS—and almost certainly a long wait before, if the person is lucky, no action is taken. The clarity being proposed in the amendment would do a great deal to focus the minds of the police and CPS on the essential requirements of the subjective test and would prevent that sort of ordeal for the proposed defendant. I cast my mind back to my own house—noble Lords may be able to imagine a big old rambling house in the Cotswolds and an old stableyard that no longer has horses in it but which is a garage containing rather expensive gardening equipment, and so on. If I went into the yard—not the house—in the dark and found somebody there, the inevitable fight could happen. I wonder whether the amendment is not too tightly drawn in that regard, when it refers to a, “building or part of a building”. I do not know whether this is the right time to interpose the suggestion that the darkened yard or garden might also fall within this provision—the curtilage is the word that comes to mind. I ally myself entirely with what has been said about Palmer, Whelan et al and I support the amendment.
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- 21:30
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Baroness Butler-SlossCrossbench- Quote
- I, too, support the amendment. I may particularly rely on the reasons given by the noble Lord, Lord Neill of Bladen, who set out the law. The noble Lord, Lord Dear, referred to members of the public—and this is a matter of enormous concern for the public, as he said. The amendment says that a, “person shall not be guilty of any offence in respect of the use of that force unless … the degree of force used was grossly disproportionate”. I give the example of my own daughter, who was in her house in north London with her nine year-old daughter when two men broke the front door down and went up the stairs in the middle of the night. She came down the stairs and yelled at them and, fortunately, they turned tail and left the house. Neither of them appeared to be armed, but how was she to know that? In the agony of the moment she might have picked up a piece of wood, a cricket bat or a poker, and hit one of them with the poker and killed him. Let us say that after that it was found that he had no weapon—but there were two men involved—the question of reasonableness in that case may be one thing but the reference to “grossly disproportionate” seems much closer to what a member of the public might expect this Chamber to say was the right approach. For those reasons, I support the amendment.
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- 21:30
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- Speaker
- Lord Thomas of GresfordLiberal Democrat
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- I have my name down to Amendments Nos. 138 and 139 to 142. If the Government are attempting to repeat the present law, they have got it wrong. On the amendment that we are debating, I am concerned about the use of the word “grossly”. I do not know quite what it means. It is an attempt to deal with the Martin situation—the noble Lord, Lord Kingsland, says no, it is not, but it seems to me that that is what inspired it. I wonder whether “grossly disproportionate” means shooting somebody in the back as he is running away. What is meant by that phrase? Is it just what the jury thinks is grossly disproportionate, or what? The Government use “disproportionate” in Clause 128(4), so I cannot quarrel with that, but “grossly disproportionate” I find difficult.
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- 21:30
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- It is hoped that a clear and unambiguous signal is provided by Clause 128, and, in that way, that the suggestion in previous discussions that that would be undertaken by the Government has been done. I immediately accept that this is a difficult issue and it has rightly galvanised a high level of interesting discussion, but I will resist this particular amendment. The noble Lord, Lord Kingsland, will fully accept that he has moved to resurrect the long-standing Conservative “grossly disproportionate” amendment relating to householders among others. I would therefore like briefly to revisit the long-standing problems that the Government and practitioners have noted with that proposal. The purpose of this amendment is to make a new defence available to a person acting against an intruder in a building who used force in the prevention of crime, in self-defence, defence of another or of property. Its intention is to provide a complete defence unless the force used was grossly disproportionate, and that had or ought to have been apparent to the person using such force. It is our strong view that the new clause as it stands does not resolve that issue. It also goes a step too far. We believe that the approach set out in the new clause risks further confusing the issue in the mind of the general public and in the eyes of practitioners—exactly the outcome that we all seek to avoid. I will turn first to the issue of confusion. Setting a separate test for householders acting in self-defence, which then admits a higher threshold of force, leads to the perception that the individuals defending themselves from attack in the street are somehow lesser candidates for the defence. We can all appreciate the peculiar terror and vulnerability of the person confronted by a burglar, probably in the dark, in their own home, perhaps woken from sleep and alone, but what about the terror of the rape victim defending herself from attack in the street? Should the law appear less generous in those circumstances? I suggest not. While that is not the intention of the noble Lord’s amendment, it is a likely and undesirable side effect. There are other problems with the noble Lord’s proposal, especially where our common aim is clarification. When referring in new paragraph (1A) to, “any building or part of a building’, there will inevitably be a question of definition. Are a home, garden, shop, warehouse and caravan all to be regarded equally as they can all effectively be trespassed? The common link appears to be the burglar—the definition of “building” is explicitly linked to the Theft Act 1968—so is the defence likely to apply only when tackling a burglar? Does a person need reasonable grounds for suspecting a burglary—as they would if they were seeking to arrest them? Those are difficult questions. The beauty of the Criminal Law Act 1967 is that it allows reasonable force to be used when tackling any crime. Clearly, there are concerns about being able to use considerable force when defending the home, but that is already adequately catered for because the test of what is reasonable is judged in the circumstances, which would include concerns about being able to defend home and loved ones. Indeed, one would be judged in respect of the circumstances as one believes them to be, even if that belief is mistaken, provided it is honestly held. I trust that that is to some degree an indication that the desiderata set out by the noble Lord, Lord Elystan-Morgan, have been met. Equally, when referring to the “person” using force, how is their relationship to the property in which the act takes place defined? Should the house or business owner be treated in the same way as the babysitter, guest, private security guard or even squatter, given that all may effectively be residing in a private dwelling and may have recourse to use force when encountering a trespasser? And as drafted, the defence would even be available to a police officer who has been summoned to the scene. Are they too to be allowed the benefit of this higher test but if so why only in these circumstances?
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- 21:30
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- Speaker
- Lord Elystan-MorganCrossbench
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- Would the noble and learned Lord think me very churlish if I suggested that now it is clear that the Government are to retain the clause, they should set out clearly somewhere in it a point that is not mentioned at all—that is, that the onus of proof remains on the prosecution throughout? We as lawyers know that to be the case but it would do no harm at all to spell it out in bold print.
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- 21:45
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Lord Davidson of Glen ClovaLabour- Quote
- I certainly would not ever consider the noble Lord churlish. Again, the point that he raises may be going one step too far in stating the very obvious. One assumes that the public and the police are fully seized of where the balance lies in these matters.
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- 21:45
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- Speaker
- Lord Thomas of GresfordLiberal Democrat
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- To say that we have heard it all before is an understatement. The noble and learned Lord could have been reading principle after principle from the Judicial Studies Board’s standard directions on self-defence. We are spending an hour on this topic. Why was it necessary to deal with self-defence and not all the other issues—certainly those surrounding homicide—such as provocation, manslaughter and so on? Why is it still in the Bill? We have spent a whole hour on it when I thought that the Government were in a bit of a hurry.
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- 21:45
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- Lord Davidson of Glen ClovaLabour
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- It is because the Government regard it as a matter of importance. It is entirely clear from public discussion that the public regard this as a matter of substantial importance, and it is considered to be a matter of priority to establish clarity and reinforce the current law.
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- 21:45
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Lord Mayhew of TwysdenConservative- Quote
- Will the noble and learned Lord think again about the suggestion of the noble Lord, Lord Elystan-Morgan, that reference should be made to where the burden of proof lies? I understood the Minister to say that he thought it was generally understood by the public that it was for the prosecution to prove its case. That is not my universal experience. I think that a lot of the public believe that you have to prove yourself innocent in this regard—I think, for example, of the Martin case. I respectfully agree that it would not do any harm to incorporate in the clause some reference to the law on the burden of proof.
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- 21:45
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- Lord Davidson of Glen ClovaLabour
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- Of course, I hear what the noble and learned Lord says and I respect his statement. The position as things stand at present is to adhere to the clause as currently drafted. However, what the noble and learned Lord said will certainly be noted.
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- 21:45
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- Lord Davidson of Glen ClovaLabour
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- It is entirely clear to the Government that there is a difference in the use of “grossly disproportionate” in the civil and in the criminal contexts. It may have every position in the notion to confine the application for damages. To simply say that that language has been used and, therefore, it can equally be employed in the criminal sense is unsound. Of course, one knows what it means and it is because one knows what it means that one considers that it should not be used in the criminal context. I hope that is helpful.
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- 22:00
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Lord BachLabour- Quote
- I beg to move that the House do now resume. Moved accordingly, and, on Question, Motion agreed to. House resumed. House adjourned at 10.05 pm.
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- 22:00
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