Only a few days to go: We’re raising £25,000 to keep TheyWorkForYou running and make sure people across the UK can hold their elected representatives to account.Donate to our crowdfunder
I beg to move, That the Bill be now read a Second time.
It gives me great pleasure to introduce the Bill. In doing so, I pay tribute to my illustrious predecessors, not least my hon. Friends the Members for North Thanet (Mr. Gale) and for Newark (Patrick Mercer), who set the scene for the measure. I also pay tribute to the work of my hon. Friend Mr. Bellingham, who has joined me today to lend his support for my attempt to take the Bill to its next stage. He has done much work for his constituent, Tony Martin, whose case was probably the one that instigated our attempts. I pay tribute to my three colleagues.
I am delighted to tell the House that I enjoy the support of the whole Conservative parliamentary party, and there is much support for the measure in the country. It has indeed proved to be the people's choice. Seldom in one's parliamentary career does one have the opportunity to make a difference to people's lives and I feel that this is my moment—my parliamentary moment. Normally, I do not win on the lottery, either the national lottery or the lottery of life—
I knew there must be a reason. However, I am delighted to have secured fifth place in the ballot for private Members' Bills.
I want to explain why we need a change in the law. The law is not clear and we need a deterrent to show burglars why they will meet more force and resistance than may have been the case hitherto. Undoubtedly, fear of crime, and of burglary in particular, is increasing and the violence used by burglars is increasing, too. Only this week, on
"was serving in the 24-hour Hamza Food Store in Sparkbrook at 2 am . . . when two masked men swooped."
The time has come to redress the balance.
My hon. Friend may remember that about three years ago in my store in Swansea I confronted a shoplifter who attacked me. Had I used force to retaliate and if he had fallen backwards and sustained head injuries, I might have found myself in court facing charges of using disproportionate force to protect myself. Is not the problem in such cases that when someone is confronted by a burglar the last thing that they should be thinking about is whether they will end up in court? They need to protect themselves, and the Bill will allow them to do that.
I bow in admiration of the heroic efforts of my hon. Friend. He has illustrated the problem more graphically than most Members could do.
I am glad that the hon. Lady is bowing in admiration and praise to Mr. Evans. However, I think I am correct in saying that in the example he gave the shop was open and the hon. Lady, too, referred to an incident in a shop that was open. In neither case had trespass occurred, so her Bill would have been of no use whatever.
I am tempted to ask whether we are boxer shorts or briefs today.
"householders should be presumed to have acted legally, even if a burglar dies, unless there is contrary evidence".
When we consider recent case law we can see that the reasonable force defence is not satisfactory. The case of Tony Martin captured public imagination. Most of us would prefer, if we were being burgled, to phone the police and receive, as we would expect, a prompt response. However, as we have just heard in points of order, we are faced with a restructuring of the police force and in areas such as North Yorkshire and Norfolk we shall undoubtedly lose our rural police forces, as officers will be asked to serve in urban areas on anti-terrorist or security duties and will have even less time to attend to burglaries. People such as Tony Martin will thus regrettably be faced with the prospect of having to take the law into their own hands.
I congratulate my hon. Friend on bringing forward this excellent Bill. She rightly mentions the case of my constituent, Tony Martin, who was driven to desperation due to the lack of a police response. He should not have been charged with murder; I feel strongly that when burglars break into a house they should leave their rights outside, except in the most extreme circumstances. Does my hon. Friend agree that the Tony Martin case has sparked a huge national debate and that there is a large amount of public support for her measure? Why are the Government not listening to her and supporting her Bill?
I am grateful to my hon. Friend. Perhaps we shall all get a surprise this morning and find that the Government are willing to support my reasonable proposals.
The Tony Martin case captured public imagination. Regrettably, however, a threshold was crossed and the burglar was fleeing the building, possibly not with stolen property—that could not be proved—and Tony Martin ceased to be acting in self-defence and was an aggressor. The modest provisions in my short three-clause Bill set out precisely where grossly disproportionate force would kick in.
Let me cite an example of something that happened to my family. My wife returned home one day to find burglars in the house. If she had set the dog on them, would she have been safe under the Bill? If she had done that and a burglar had been injured terribly, I am not sure whether she could have been charged under the current law.
May I make some progress?
I wish to cite two recent cases that demonstrate how the criminal justice system is failing the victim—the home owner and the property owner. Persistent offenders can be released early and then go on to commit burglaries, which can lead to the death of innocent victims, as these cases show. Marian Bates was innocently going about her business as a jeweller in her shop in Nottingham. The persistent offender in that case was let out on licence. He was meant to be tagged and under the supervision of a security firm, but he released himself from the tag and went on, with tragic consequences, to commit a horrendous burglary during which he murdered Marian Bates. The case of John Monckton was equally tragic. It is a matter of fact that the main perpetrator in that case had been released after serving only seven years of his 12-year sentence for attempted murder.
The people of England feel badly let down by the Government not only because the police are not in a position to attend burglaries as quickly as would be liked, especially in rural areas, but because it is perceived that burglaries are on the increase. When burglaries do occur, they are virtually risk-free because there is little chance of a burglar being detected, prosecuted or convicted.
I fully support my hon. Friend's attempt to change the law on the use of reasonable force against people who are found in others' homes. Given the inadequacy of the law and the prevalence of burglary that she describes, may I draw her attention to the case of one of my constituents? He woke one early morning to find two people in his house and chased them off. When the case went to court, those people offered the defence that they had been in the house looking for their cat. Incredibly, the case fell because of lack of evidence that they had the intent to steal. Is it not absurd that they were able to offer that defence? Should not the law be changed further so that there is a presumption that if people enter premises with no reasonable excuse, they commit a crime?
Against the background of an increase in violence, we need a recognition that the concept of reasonable force is simply not understood. When the Crown Prosecution Service guidelines were issued earlier this year, Sir Ian Blair said that for a person faced with an intruder in their home at 4 am, the concept of reasonable force is difficult to understand, yet the concept of grossly disproportionate force would be more obvious.
We are not asking for the Oklahoma law and we are not saying that anything goes. However, people should not be prosecuted for force that is less than excessive or grossly disproportionate. The Government used that test when they introduced a provision in the Criminal Justice Act 2003 to allow burglars to sue home owners or property owners for damages if they had been subjected to such force. I argue strongly that the same test should apply under criminal and civil law.
Constituents in Kettering are fully behind my hon. Friend's reasonable proposals because in Nottingham, as recent Home Office figures show, there is a rising fear of crime and a worryingly low burglary detection rate. Local people want extra protection against criminals.
I entirely agree with my hon. Friend.
The Crown Prosecution Service guidelines do not go far enough. They refer to people doing what they
"honestly and instinctively believe is necessary in the heat of the moment", but that could cover a multitude of things, some of which could well lead to the death of an intruder. However, under the heading "Will you believe the intruder rather than me?", the guidelines say:
"We hope that everyone understands that the police have a duty to investigate incidents involving a death or injury."
It is still the case that an innocent victim will be subject to a police investigation and thus public attention.
Does my hon. Friend agree that burglars are well aware of their rights before they commit a burglary? If the Bill is passed, it will send a strong message to all burglars. Does she have any evidence that some people might not have committed burglaries if the terms of the Bill had been in place?
I hope that we can examine that matter in Committee. My hon. Friend is right that most burglaries that were examined in the context of the Bill were not opportunistic, but well thought out and designed for a specific purpose.
Let me move on to the definitions in the Bill. I paid tribute earlier to my hon. Friends the Members for North Thanet and for Newark. My Bill is different from their Bills, and especially the Bill that was introduced earlier this year by my hon. Friend the Member for Newark, because it would extend to all properties, both commercial properties and homes. It is interesting to note that the Bill enjoys the considerable support of members of the Federation of Small Businesses and members of the National Neighbourhood Watch Association. I was staggered to discover that Federation of Small Businesses statistics show that 58 per cent. of small firms are the victims of crime each year. I wanted to take account of excellent points made in the Standing Committee that considered the Bill of my hon. Friend the Member for Newark. It would be wrong to limit the Bill's provisions purely and simply to homes, so I want to extend it to all properties, including commercial properties, such as shops and retail premises.
As my hon. Friend the Member for Newark recognised, we want a threshold for when prosecutions should be brought. I thus argue that no prosecution should be brought against a person without the permission of the Attorney-General. In preparation for the Committee stage of the Bill introduced by my hon. Friend the Member for Newark, the flawed trawl of the Crown Prosecution Service found that there had been 26 cases in a 15-month period, of which 11 had been brought to prosecution. The measure in my Bill would dramatically limit future prosecutions.
"'building or part of a building' shall have the same meaning as in section 9 of the Theft Act 1968".
The Bill thus covers all buildings, homes, commercial vehicles and vessels. It is worth considering the provisions of the Theft Act 1968 because it makes the good point that the offence of burglary is a serious crime that involves not only a threat to property, but a threat to the privacy of one's own home. That factor differentiates the offence from simple theft. Over time, the offence has been understood to cover a dwelling place and to encompass any building. Under the Theft Act, someone is guilty of burglary if
"he enters any building or part of a building as a trespasser and with intent to commit any offence".
They are also guilty if, having entered the building or part of it, they steal or attempt to steal anything in the building or inflict grievous bodily harm on anyone in the building. The Act includes in those offences the offences of
"stealing . . . of inflicting . . . grievous bodily harm or raping any woman . . . and of doing unlawful damage to the building or anything therein."
References to "a building" in the Act also apply to vehicles and vessels.
I am grateful to my hon. Friend for defining the nature of the offence. It was suggested earlier that if someone entered premises such as a shop and committed an offence, those provisions would not apply. Is she aware that someone who enters and exceeds the term of their licence for entering premises becomes a trespasser ab initio and can be charged with burglary?
The whole House has benefited from my hon. Friend's astute clarification which, I hope, will lead to even greater support for the Bill. I asked the Home Office for the level of burglary detection in each of the past eight years. Incredibly, it has fallen dramatically. When the Conservatives left government in 1997, 23 per cent. of burglaries were detected by the police in England and Wales. As of 2001–02, that rate had reduced to 12 per cent., and the detection rates for offences of burglary recorded by the police in England and Wales was only 13 per cent. in 2004. Right hon. and hon. Members will know that many people who report burglaries, particularly of vehicles, are simply given a police number. Those burglaries are not investigated or detected, so the offenders are never brought to book. Even more worryingly, only 3.6 per cent. of defendants were convicted of burglary in the courts in 2004–05. In the same year, only 1.6 per cent. of defendants were sentenced to immediate custody or given a custodial sentence for burglary.
What message are we as legislators giving victims and, indeed, potential burglars other than suggesting that burglary is completely risk-free? To receive a criminal sentence and be designated a criminal someone must be accused, and their crime must be detected, recorded and prosecuted. The figures show that that is simply not happening. In clause 2, I seek to extend the provisions of the Bill to Northern Ireland, and I pay tribute to my hon. Friend the Member for Newark, because when his Bill was in Committee he said that such measures should be relevant to Northern Ireland as well as to England and Wales. I would like the provisions of my Bill to extend to Scotland, as I am qualified as a Scottish advocate, albeit a non-practising one. I hope to pursue that proposal if I am fortunate enough to see my Bill proceed to Committee. Under proposed new subsection (1A), a property owner is not guilty of an offence unless they use "grossly disproportionate" force and unless the excessive nature of that force is apparent to them.
My hon. Friend has been listening closely, as the Criminal Justice Act 2003 sets out the test for an offence to be grossly disproportionate. The Government had to revisit the issue in the light of the claim by Brendan Fearon against Tony Martin in the constituency of my hon. Friend the Member for North-West Norfolk. Brendan Fearon was granted legal aid, reportedly to claim compensation of £15,000 for the injuries that he received. I am delighted that in September 2003 the case was settled out of court when Brendan Fearon dropped his claim and Tony Martin therefore dropped his counter-claim. Such cases make a mockery of the law. I am arguing, with the support of my hon. Friends, that we need a consistent test. Burglars should not be able to sue us for damages that we may inflict on them when they intrude and trespass on our property and commit a criminal act so, under the Bill, there is a higher test of grossly proportionate force for the householder.
My hon. Friend has alighted on a very important point indeed. When Brendan Fearon sued Tony Martin for damages for the injuries that he sustained, that provoked outrage. Does my hon. Friend agree that any burglar who breaks into a property and commits a serious criminal offence should not be able to profit in a civil court?
Brendan Fearon would have profited if his civil action was successful. I am delighted that my hon. Friend the Member for North-West Norfolk has clarified the point for us.
The arguments for the Bill are forceful. Burglary is virtually risk-free, and detection rates are at a 25-year low. Fewer than one in seven burglaries are cleared up by the police. Only three in 100 burglaries result in conviction. Public fear of crime in general and burglary in particular has increased, yet police in rural areas are severely stretched. My right hon. Friend David Davis, the shadow Home Secretary, said:
"The term 'grossly disproportionate' was actually introduced by the present government in 2003 when it amended the civil law. I believe that it would be beneficial to amend the criminal law act in the same way, restoring the balance to the victim rather than the criminal. At a time when just three out of every one hundred burglaries results in a conviction, people need to be able to feel that they can protect their lives and property."
On a point of order, Madam Deputy Speaker. Is it in order for the hon. Lady to strangle debate by giving way only to Conservative Members?
I am mindful of the wide interest in the Bill, Madam Deputy Speaker, and I want to allow as many colleagues as possible to speak. I have been generous in giving way to Government Members.
I thank everyone who supports the Bill in every part of England, Wales and Northern Ireland. I thank the Federation of Small Businesses, the Security Institute, the National Neighbourhood Watch Association and the former burglar Bob Turney, who has lent his not insignificant expertise. I humbly submit that the Bill is very much needed. It would extend to both residential and commercial property owners the right to defend their lives, property and belongings without fear of prosecution. It would allow people to take action only where that was deemed not to be grossly disproportionate to the threat that they faced and, in such circumstances, they would not face criminal charges. It would bring criminal and civil law into line, restoring the balance in favour of the victim rather than the criminal, and it would increase protection for people throughout England, Wales and Northern Ireland, who expect the House to vote in favour of its provisions.
Initially, I shall ask some of the questions that Miss McIntosh did not allow me to put during her own presentation. The first is that the crucial distinction made by her Bill by comparison with the current state of affairs is to replace the test of reasonableness with the test of gross disproportionality. She was asked by Mr. Bone, who left the Chamber immediately afterwards, what would happen if his wife set the dog on an intruder. The hon. Lady responded—with respect to her—evasively, saying that that was a matter for the courts to decide. Is that not a classic example of the state of uncertainty, about which she and her hon. Friends complain, in the current situation?
At present, if the hon. Lady were to break into my house and I had to decide how far I could deter her, I would have to consider what would be deemed reasonable. Under her Bill, I would have to consider what was grossly disproportionate. It is possible to imagine situations where behaviour is unreasonable but not grossly disproportionate, or cases where it is grossly disproportionate but not unreasonable.
Let us take, for example, the case of the British tourist who, in one of the southern states of America, one dark night got lost. He went up the path to a remote house and wanted to ask the way. As he approached, the nervous householder, who I believe had been burgled several times, thought he was another intruder and shot the tourist dead. We could all agree that that was grossly disproportionate—[Hon. Members: "Some of us would."] Unlike the hon. Lady, I shall be glad to give way if she wishes to intervene, but I hope she would agree that that was grossly disproportionate.
Could we also say that that was unreasonable? Looking at the case, at least through British eyes, we would say, yes, it was unreasonable. But suppose the householder had not shot the tourist dead, but merely wounded him. An American court, and, I submit, a British court might in that case have said, "Well, this is grossly disproportionate—using a firearm to attack somebody who has not yet done anything worse than walk up the drive—but is it unreasonable?" One could argue that with a history of burglaries, it is understandable if the householder feels nervous.
Here we have a case where the householder would be prosecuted under the hon. Lady's Bill, but not under the current law. Her Bill would replace one uncertainty with another uncertainty. That is being done not to resolve the uncertainty—if that was her intention she would merely adopt the formulation that the householder can do anything on his own premises—but to seek partisan advantage, by pretending to bring forward a different form of words which in practice would do nothing to reassure the householder that they would be able to operate. The householder would have exactly the same dilemma: to judge what a court might think of his or her behaviour—
The hon. Gentleman has just made a disgraceful statement and he knows it. For him to suggest that the Bill is being moved for partisan advantage rather than in response to public concern is about as sensible as Conservative Members trying to pretend that every Labour Member who opposes it is a burglar's friend.
I am afraid I cannot share the hon. Gentleman's synthetic indignation. I note that not very many Opposition Members have bothered to turn up to take part in the debate. There are seven. Each of the Conservative Members present have pursued the issue in what seems to me a partisan spirit which is alien to what ordinary people in Britain want. What ordinary people want is a degree of certainty.
Would the hon. Gentleman reflect that Stephen Pound had a poll on the "Today" programme last Christmas and a measure like the Bill got overwhelming public support? His reply, which perhaps represents the view of Dr. Palmer as well, was, "The people have spoken, the ********". I am afraid the hon. Member for Ealing, North then used an unparliamentary word on the public airwaves.
It is a common phrase that was used. It was used by a Conservative colleague of the hon. Gentleman on the website yesterday when he heard about the Labour gain in the constituency of Thurrock. Such partisan remarks are not unknown.
The fundamental question that we all have to answer is whether we have a degree of trust in the British jury system or not. If we examine a typical case, as evinced by several hon. Members who have spoken so far, we have great difficulty in imagining a British jury in the case described—Mr. Evans, who attempted to stop a shoplifter, or the hon. Member for Wellingborough, whose wife released a dog against an intruder—saying, "Yes, we are going to convict this person."
My hon. Friend is very kind. He mentioned the apprehension of, say, a shoplifter—someone who has gone into a premises and stolen something. The thief may have left the premises and may be on the street outside. He would no longer be covered by the Bill. Would the security guard giving chase have to stop and think, "I have moved from grossly disproportionate to reasonable force. Hang on a moment. Let me think back to the case law before I carry on apprehending this person."?
I apologise to my hon. Friend for frivolously hesitating. He makes a good point.
If we are honest about it, in all these situations people are operating at the edge of law and are not sure where they stand. That is the problem which, to be fair, the hon. Lady's Bill purports to address, which the Bill introduced by Patrick Mercer attempted to address, and which the Home Office guidance on the existing law attempted to address. It is a genuine difficulty. I share with the hon. Lady, though not, I think, with Mr. Gale, the view that Tony Martin moved beyond the stage of proportionate response, even to the point of grossly disproportionate response.
My hon. Friend may have detected in the presentation by Miss McIntosh of her Bill today that there has been quite a significant shift from the way Patrick Mercer presented his Bill a year ago, when he made it clear that he did not think that Tony Martin was acting properly and lawfully, and that his Bill, as then drafted, would have made no difference to his case. The hon. Lady seems to be suggesting that he would be let off.
I am grateful to my hon. Friend. I am not aware of the details of the position of the hon. Member for Newark. If he wishes to intervene, he is welcome to do so.
Fine. Whatever positions may or may not have been taken in the past, we, with the exception of Mr. Bellingham who represents Tony Martin and who is in a particularly difficult position, are approaching unanimity on that point. Unless someone wants to contradict me, the rest of us agree that Tony Martin exercised grossly disproportionate force.
That is right. The Tony Martin case is useful because it illustrates one element of the grey area. We all agree that Tony Martin used excessive, grossly disproportionate force, and we disagree with a number of members of the general public, which is perhaps because the general public have not studied all the aspects of the case. For example, some members of the general public are not aware that the person who was shot was fleeing at the time, and they are not aware, as I understand it, that Mr. Martin left that person to die before calling the emergency services. Those elements clearly influenced the jury to convict Tony Martin. We must avoid going too far up the side alley of the Martin case, because as my hon. Friends have said, it was adequately covered by current legislation.
Conservative Members need to be careful, to use an outmoded metaphor, that they are not running with the fox and hunting with the hounds. The hon. Member for Vale of York and other Conservative Members cite the Tony Martin case as an example of strong public feeling, but if we agree that those elements of the public who sympathise with Tony Martin are mistaken, then it is not evidence to support her Bill or any other change in the law.
I did not know that, but that is my understanding of the current law. However, we must be open about the point that some people are unsure whether that is the case. That is why it was particularly valuable when the Home Office issued a clarification last year—it is reasonable to say that the Bill introduced by the hon. Member for Newark prompted the Home Office to issue that clarification. Many people who, until that point, had felt that the law needed to be changed, looked at the clarification and said, "In that case, the current law is probably about as good as it gets."
Does my hon. Friend agree that one of the reasons why misunderstandings have occurred and further clarification is required is the outrageous scaremongering by some Conservative Members on the past three occasions on which this Bill has been introduced?
Yes; that returns me to my dialogue with the hon. Member for North Thanet. The issue has been exploited for partisan purposes, and it has also been whipped up by elements in the press. If one reads the Daily Express every day, and one reads only the Daily Express, it is very difficult to retain the will to live. [Laughter.] Every day, the front page contains a new catastrophe, a new sell-out, a new betrayal and a new threat to the existence of the British human race. Among the terrible catastrophes that the Daily Express describes is an alleged failure of the law to give due account to the position of the householder.
The hon. Gentleman has underestimated the absolute exasperation in the countryside at the thin level of policing and the impact of regular burglaries. In the Martin case, people concentrate on the grossly disproportionate use of force, but Tony Martin had been driven to total distraction and almost irrational behaviour because he had been burgled 10 times. The forces of law and order did not support him, because they were not there. Does the hon. Gentleman not see that the Bill would have a deterrent effect? If the criminal law were brought into line with the civil law, there would hopefully be less burglaries and less Tony Martins who have been driven to total distraction and irrational behaviour.
Before I respond to the hon. Gentleman, will he clarify whether he feels that Tony Martin should not have been convicted?
The use of force was grossly disproportionate. I am trying to get away from the physical action and into the state of mind of a man living in an isolated farmhouse in a rural area where the forces of law and order were unable to help him. Tony Martin had been burgled 10 times, and I repeat that he was driven to distraction and irrational behaviour. The hon. Gentleman must not underestimate the real fear on that front in rural areas. If the House were sensible enough to pass the Bill, which I wholeheartedly support, I hope that it would lead to less burglaries and people thinking twice before setting out to burgle a lonely farm such as Mr. Martin's.
I will not correct the hon. Gentleman's grammar. [Hon. Members: "Go on."] We all support the new literacy drive.
We all accept that the more isolated the property, the more people worry that they will not get an immediate response from the police. If we are honest, that worry will always exist, regardless of the level of policing. We will never have a policeman within immediate reach of every isolated farmhouse.
Does my hon. Friend agree that the way to make sure that the good people in rural areas are protected in the same way as the good people in more built-up areas is to ensure that we have proper and full policing in this country, which we have achieved thanks to the investment in policing under this Government? And does he agree that the greatest harm that we could do to people in rural communities would be to introduce the £35 billion of cuts suggested by the Conservative party?
I shall follow your instruction, Madam Deputy Speaker, and draw a veil over the matter.
Because I was asked directly about policing, it is probably in order to say that I agree that part of the solution that people want is a reasonable level of policing across the countryside. However, people are not unrealistic about that matter, and they do not expect a policemen to be within a couple of minutes of every isolated farmhouse, which is why we must accept that increased policing is not the whole solution. If we are treating the Bill seriously, it is probably not a complete answer to say that we should not worry because we have got more police, and I think that my hon. Friend Mr. Flello probably agrees with that point.
Mr. Paterson has mentioned the alleged deterrent effect of the Bill. Did my hon. Friend notice that when Miss McIntosh introduced her Bill, she prayed in aid two tragic cases—that of Marian Bates, who was shot by a burglar, and that of the Monckton family? Does my hon. Friend agree that the hon. Member for Vale of York provided no evidence that her Bill would have prevented either of those tragedies?
Yes, I do agree. That is one of the fundamental difficulties about the Bill. Frankly, it is an example of gesture politics. If the Conservative party were in government, we would be sitting on the Opposition Benches saying that it is an example of the Government trying to be seen to do something. However, there is no evidence that it would make any concrete difference. I do not believe that a British jury would make this very fine distinction between unreasonable behaviour and grossly disproportionate behaviour. In a case such as that of Tony Martin, the jury would convict in either event. The hon. Member for Ribble Valley described his experience with a shoplifter. In a case such as that, the jury would acquit in either event. Indeed, I do not think that the Crown Prosecution Service would attempt to prosecute in such cases. As I understand it, it was not only the hon. Gentleman's immunity that protected him from prosecution.
It is most important that the hon. Gentleman address the question of deterrence. We will never have enough police to cover remote farmhouses in rural areas, so it is in the interests of the police and of the general public that before burglars set out they have a really hard think. Is it worth it? Is the risk higher? Surely if the Bill deters burglars, that is in all our interests, and the hon. Gentleman must agree that it will have a deterrent effect.
In response to Janet Anderson, my hon. Friend the Member for Vale of York mentioned those violent cases merely as evidence that violence is increasing. My point is that there is a much broader public good to be gained from the Bill if burglars think twice and stay at home watching the telly, or preferably reading a book and doing something constructive.
There are two tests of the Bill: first, whether it would have the effect that the hon. Gentleman hopes, and secondly, whether the incidence of mistaken injury done to innocent people would increase. It is reasonable for the House to consider both those issues. So far I have concentrated on whether it would have an effect.
On deterrence, does my hon. Friend agree that there is a possibility of the said burglar sitting at home and thinking, "Hang on a second. If I go burgling, I may get shot or stabbed—I had better arm myself."
That is right. There is a real risk of an arms race. That takes us back to the argument, which is outside the scope of today's proceedings, about whether we should arm the police. It is traditionally argued that if we arm the police we are likely make it more probable that criminals will also be armed.
That is irrelevant, because all the statistics show that violent crime is increasing. We all know that, regrettably, the vast majority of guns are held and used illegally.
Despite the citing of several examples of violence, we are primarily discussing not violent crime but burglary. Under every form of measurement, the incidence of burglary has been falling since 1995. To make a non-partisan point, it started to fall under the last Conservative Government, because the sky-high rates of unemployment that had been reached were just beginning to come down, and it has been falling ever since. It is important that we do not give the public the false impression that they are more at risk of burglary than they were before, because everyone who has considered the issue seriously knows that that is not the case.
Yes, that is right. It is not a question of reported crime. It is generally accepted that burglary is usually reported, if only to get a crime number for insurance purposes. We are comparing like with like—police statistics with police statistics and the recorded crime survey with the equivalent survey. If we are having a serious discussion, we should accept that burglary is becoming less common. That is not only because of Government action, although that has a great deal to do with it, but because people are getting better at ordering their security—alarm systems and so on. It is also because some criminal gangs are diversifying into activities such as smuggling where the pay-off is higher and the risk is lower.
It is asserted that the figures are inaccurate because fewer crimes are reported. What about the British crime survey, which asks people about their actual experiences and so gives a more accurate picture of crime levels and trends across the country? Even according to that survey, the number of burglaries is the lowest for 20 years and aggravated burglaries represent less than 1 per cent. of all burglaries.
In order to make progress, perhaps hon. Members will accept for the sake of argument that the issue is not that the number of burglaries is going up—it has been going down for some time—but that people are still concerned about what they should do and what their legal position would be if a burglary were to occur.
I want to move on to the risk of injury to innocent persons. I gave the extreme example of the tourist in America who was shot dead. There are obviously many other possibilities that are much milder. In our densely populated cities, there is every chance that trespass, in the formal legal sense of the term, will happen many times a day in every city. We all have constituents who complain that youths whom they do not know have wandered into their garden. They are worried by it because they do not know what those youths, who have perhaps kicked a football over the wall or are just being insolent, have in mind. They feel uncertain and uneasy—and who can blame them? It is entirely reasonably that they should. The problem is that under the hon. Lady's Bill any response that was not seen as grossly disproportionate would become legal.
Let us consider what that means. For example, if a 14-year-old were to wander into the garden of a householder who had a history of being aggravated by local kids, and who then assaulted the child and bundled him off the premises, causing him bruising and minor injuries, would that be seen as grossly disproportionate? I am not sure that it would. Under the present law, it would certainly be seen as unreasonable, because it is unreasonable for someone to use force against a person who has merely strayed on to their property, unless they have first asked them to leave and taken all reasonable steps to get them to do so. Would it be grossly disproportionate? As a householder, I would have great difficulty in deciding whether it would be grossly disproportionate.
Does the hon. Gentleman agree not only that it would be difficult to decide if a response was grossly disproportionate, but that there is an implication that it would be okay to be disproportionate?
The hon. Lady makes a good point. If we changed the law in this way, we should be saying that it was okay to be disproportionate or unreasonable, so long as we were not grossly disproportionate. I would be very reluctant to anchor that principle in the law of Great Britain. The principle of reasonableness, which we apply to enormous swathes of the law, is very valuable. It has stood the test of time, and juries have traditionally interpreted it in a way that most of us would accept. If we were to move from the concept of what a reasonable person would do, and to adopt a concept of what a not-grossly-disproportionate person would do, I submit that we should be moving on to dangerous territory. We should be moving into the area of frontier law.
I hope that I am not misrepresenting the hon. Member for North Shropshire—he will correct me if I am—but I understood him to say that, because people in remote farmhouses, for example, cannot realistically expect the police to dash round at two minutes' notice, they need to take other measures to deter burglars and make them think twice before intruding on their property. I assume that such measures would include the possession of some kind of weapon with which the householder could defend themselves in the event of what they saw as a dangerous intruder entering their property. That would say to people across the countryside, "We encourage you to equip yourselves with weaponry, and, if you see someone who you believe to be an intruder, you can use those weapons on them so long as you are confident that a jury will not find that you have behaved in a grossly disproportionate manner." That would be dangerous in the extreme. I do not believe that the general public want it to be the norm in the British countryside for people to arm themselves in order to assault potential intruders. That is not where we want to go; it would lead to more trouble than we have at the moment.
What the hon. Gentleman is saying makes a great deal of sense. There is nothing in the Bills introduced by my hon. Friend Mr. Gale, my hon. Friend the Member for Vale of York or myself that aims to aggravate the situations that the hon. Gentleman has mentioned. That is precisely why we have included new subsection (1B).
I am grateful to the hon. Gentleman for his intervention, which was, as always, measured and restrained. None the less, as the hon. Member for Vale of York said in her introduction, the Bill would be significant in the sense that it would send a message to householders. There are two possible messages that we could send. One is that nothing much has changed; we might have changed the wording a bit, but basically people are still in the same legal grey area as before, in that they will not know whether they are going to be prosecuted or not. I suggest that, if we send that message, people will be quite fed up with us. They will say that we just mess about and do not change anything.
The other message that we could send is that people can take additional measures to arm or protect themselves against intruders. That is what people would understand by the Bill if it were passed. All the clarification in the world would not make a difference to that conclusion, and the result would leave the peace and quiet of the British countryside in a much worse position than it is today. There is a tradition in the British countryside, as I am sure the hon. Member for North Shropshire will confirm, that if someone gets lost or needs help, or if the weather turns unpleasant, they can go to a stranger's house and ask for assistance. People might be a little wary if they were to do that in central Nottingham—"Who is this stranger knocking on my door? What does he want?"—but the tradition still exists in the countryside. It would be a great pity if we were to tilt the balance away from that because of the increasingly rare cases of violent burglary. We must not put that balance at risk by starting what my hon. Friend the Member for Stoke-on-Trent, South referred to as a sort of arms race. We should not encourage householders to buy knives, to set traps, or to build barbed wire or electric fences in order to fight off intruders by themselves.
We all appreciate that people who choose to live in a remote area might be worried about the time that it can take for the police to respond when they are called. However, the measure proposed by the hon. Member for Vale of York would make no difference to the probability of conviction. It would instead risk sending a message that would be counterproductive to law in order in Britain. That is the fundamental risk that the Bill creates.
If the Bill had been presented in a non-partisan way, I would merely have thought it a mistake. As it stands, however, it seems to me to be a mistake that has been made for political reasons. This subject deserves more serious treatment than it has so far received.
Some extremely interesting points have been raised so far. Before I start to make my points, as best I can, I would like to pay tribute to my hon. Friend Mr. Gale, who introduced the issue in the first place. I also congratulate my hon. Friend Miss McIntosh, who has added tremendously to the Bill that I tried, unsuccessfully, to introduce at the beginning of this year.
The Bill before us today contains a number of provisions that are considerably better than those in my Bill, particularly proposed new subsection (1C), which clears up the misapprehensions—which I was partly responsible for broadcasting—about the difference between these provisions and those in the Theft Act 1968. I also want to pay tribute to Lady Hermon—who, sadly, is unable to be present today—for the points that she made in Committee on the parts of my Bill that pertained to Northern Ireland.
I think that I am unique in that I am the only person in the Chamber today who knows and has spoken on many occasions to Mr. Brendon Fearon. Let me remind the court—I mean the House—of the Tony Martin case. When it came to light, it enlivened the whole of my constituency. The two boys who went to try to burgle Tony Martin's farm both came from the crime-ridden estate of Hawtonville, in the north of my constituency. One of them, Brendon Fearon, survives today, despite having sustained gunshot wounds to his left buttock. The other, Fred Barras is, in my view quite wrongly, in his grave.
There is no doubt in my mind that Fred Barras was a criminal and that he should have been deterred. Nor is there any doubt in my mind that his victim could have used a number of methods to stop him burgling his farm. There is absolutely no doubt in my mind, however, that both young men were assaulted in a grossly disproportionate way, and one of them was murdered but should today be alive and—if I can be forgiven the phrase—kicking.
The fact remains that the individual who convinced me of the rectitude of what I tried to do unsuccessfully earlier this year was Mr. Brendon Fearon. He has a long criminal record and he continues to offend. When it became clear to that excellent organ, the Newark Advertiser, that I was going to introduce my Bill, it went to interview Brendon Fearon. It knew quite well that he was certain to be found at the magistrates court, which is exactly where it found him. It put the case to him by saying, "If our Member of Parliament manages to introduce this Bill, what effect would it have on you as a persistent offender?" A number of Labour Members, from a sedentary position, have referred to the fact that if Conservative Members thought that criminals would be deterred, we were living in cloud cuckoo land. Mr. Brendon Fearon said that if the Bill were introduced, it would deter him, and would stop him committing the crimes of which he has been convicted on many occasions.
When I introduced the Bill, it seemed that I had the support of the Prime Minister. I will not bore the House by going through the Prime Minister's precise words, but he changed his tune after a little while. It also seemed that I had—hardly, on mature reflection—the support of the brand spanking new Metropolitan Police Commissioner, Sir Ian Blair. He also changed his tune after a matter of hours.
I am grateful to the hon. Lady. I do not know whether she heard Sir Ian Blair's words on the radio in January this year, but, unfortunately for him, it was his first day in post, and I have no doubt that he had not had time properly to be briefed on the Government's line. The fact remained, however, that in the early hours of that day, he said, although I paraphrase him, that grossly disproportionate was a reasonable test. Later in the day, he changed that, and the hon. Lady will remember that the Prime Minister had to express his confidence in him on his very first day in post.
When the hon. Gentleman says that it was Sir Ian Blair's first day in post and he did not know the Government's line, is he suggesting that Sir Ian is a sheep who automatically follows the Government's line?
I would not dream of suggesting anything about such an eminent police officer. He seemed to change his tune very quickly, however, between appearing on the "Today" programme, on which his comments were unequivocal, and the ACPO briefing, which followed a few hours afterwards and which I am sure the hon. Gentleman will remember.
With the support of a convicted criminal, a persistent offender, the outgoing Metropolitan Police Commissioner, Sir John Stevens, the incoming Metropolitan Police Commissioner, the apparent support of the Prime Minister and the overwhelming support of the public, I thought I had a compelling case when the Bill came before Parliament earlier this year. Sadly, that proved to be incorrect. Much to my regret, the Bill was hijacked by politicians and turned into a party political issue, and I genuinely regret its proximity to the general election. We were robbed of a useful measure that would deter burglars, help and assist policemen, support householders and, most importantly, shift the balance from householders feeling that the law was against them to burglars and other intruders knowing that the law was against them. At the same time, we might achieve a lessening of the possibility of bloody affray either in shops or houses. I hoped that the Bill's deterrent effect would stop confrontation, lessen the fear of householders and increase the fear of burglars. Clearly, I failed.
Proposed new subsection (IB) states:
"No prosecution shall be brought against a person subject to subsection (1A) without the leave of the Attorney General."
A few moments ago, Dr. Palmer skirted over my point when I intervened on him—whether that was intentional, or whether he had not had time to look at the Bill, I am not sure. Many of his good points, however, are addressed by that provision. The point is that the arbiter of whether people are taken to court is not some policeman or the Crown Prosecution Service but the Attorney-General, who must decide what is grossly disproportionate as opposed to reasonable or unreasonable.
I am glad that the hon. Gentleman appreciates the importance of including the Attorney-General in the decision-making process, and I look forward to his supporting our Racial and Religious Hatred Bill on similar grounds. I also agree with his earlier point that it is a great pity that this issue has become so politicised. Will he tell us whether his party urged him to introduce his Bill just before the general election?
I take your point, Madam Deputy Speaker, and if I have strayed from the letter of the Bill before us, I am in error, and I apologise.
The hon. Member for Broxtowe, of course, comes from crime-locked Nottinghamshire, as I do, and he makes some very good points. I hope that he knows me well enough now, however, to understand that I will always try to put the good of my constituents before any petty party political advantage. I hope that I have made a reasonably compelling case that this subject is close to my heart. Perhaps the subject did not originate in Newark, but it has a strong bearing on my constituents, not because it is a mainly rural constituency such as the Vale of York, but because it has a combination, as the hon. Member for Broxtowe knows, of inner-city and rural problems, which are exacerbated by the lowness of numbers of the excellent Nottinghamshire constabulary.
The hon. Gentleman's justification in relation to lack of certainty is that the Attorney-General would be the arbiter of what is grossly disproportionate. If so—and that is the logic, as I understand it—why did he and his colleagues find it so offensive for the Attorney-General to be the arbiter of incitement to religious hatred? In that case, he argued that people would not know how far they could go. Similarly, in this case, a householder would not know how far he or she could go.
The hon. Gentleman tempts me, but I have already been cautioned about straying off the point of this Bill. If he wants to speak to me afterwards, I will be delighted to take that up.
Under the Criminal Justice Act 2003, the Government introduced the phraseology of gross disproportionality—that is Government wording in civil law. All that my hon. Friend the Member for Vale of York is trying to do now is to bring criminal law in line with that designed by the Government under civil law.
The Minister has asked who Charlie Mayall is. Charlie Mayall lives in a crime-ridden area of Newark called York drive. He resisted an armed break-in by a number of hoodlums some months ago. When he struck one of them, who then made off, the police arrested him immediately. They believed at the time that they could secure a prosecution against him because he had acted unreasonably.
As a result, Mr. Mayall appeared in court on three occasions, was dragged to and from Newark police station on many different occasions, lost his job, was subjected to all sorts of personal pressures and lost earnings. Only after seven months of that process was he told by the police that the case had collapsed through lack of evidence and that there was no case to answer. How often, in such cases, do the jury and judge eventually say, "This is nonsense, there is no case to answer and you have acted perfectly reasonably"? The fact remains that the individuals involved are treated as criminals. They are put under the most enormous pressure yet are ultimately not found guilty.
Does the hon. Gentleman believe that, if this Bill were enacted, police should arrest someone in similar circumstances, or should they not investigate the case, automatically thinking, "It is obviously not grossly disproportionate"?
I have no doubt that the police will make an arrest on those occasions and that they will feel much clearer in their own minds that the arbiter will quickly decide whether the individual should be taken to court. The best scenario is that, as a result of this measure, the likes of Charlie Mayall will not be put through months of pressure and indignity.
I will not give way again if the hon. Gentleman does not mind.
The Bill makes a huge amount of sense. I believe that it has the support of criminals, police officers and, most important, the public. I hope that Labour Members will not view this as a party political issue but will try to view it as something that we are going to do for the good of all our constituents. I commend the actions of my hon. Friend the Member for Vale of York and the articulate and extremely convincing way in which she presented the Bill today, and I commend those Labour Members who speak from the heart, and who feel the rights and wrongs of this case as passionately as I do. I hope today that we can agree in the House that the Bill should become legislation and that, if it does so, it will be for the good of all concerned.
I congratulate Miss McIntosh on coming so high in the ballot and on introducing the Bill, although I regret to say that I shall not support it today. May I also express my commiserations to my hon. Friend Stephen Pound, who unfortunately is not in his place to hear this debate—he has the high office of Parliamentary Private Secretary to the Minister with responsibility for police and law and order. This is all his fault in a way. I think that he should be here to listen to the debate.
It all goes back, as has been mentioned, to the "Today" programme listeners' poll at the end of 2003—
I will mention something about that later. My hon. Friend the Member for Ealing, North was somewhat hoist by his own petard as a result of that. He was rescued by Mr. Gale, who picked up the issue later. I suspect that "Today" listeners were probably exercising disproportionate force on my hon. Friend, bearing in mind the number of times he appears on the programme, to try to teach him the error of his ways and persuade him that he should be a little less of a media junkie and a little more restrained about some things.
My hon. Friend is right. I shall say a little more about the populist approach, or otherwise, of the Opposition a little later.
This is the third Bill that has come before the House on the issue. My hon. Friend the Member for Ealing, North chickened out, rightly, after the poll came out. It was interesting to hear how he wriggled on the "Today" programme afterwards to get out of the difficulty. He was got out of the hole by the hon. Member for North Thanet, who introduced his own Bill, the Criminal Justice (Justifiable Conduct) Bill, in 2004.
In the last Session of the previous Parliament, that was followed by the Bill introduced by Patrick Mercer, the Criminal Law (Amendment) (Household Protection) Bill. He is right in saying that that Bill got a Second Reading but that was only because the Opposition decided to exercise their whip on a Friday, which I regard as a real breach of parliamentary practice. It is a private Members' day and should not be subject to party political whipping.
As a new boy who has been here only six months, I am slightly confused because we do not have Whips on our side on a Friday. Will my hon. Friend explain what he means by his last comment about Opposition Members being whipped into line the last time such a Bill was before us?
Of course. Basically, the convention is that Fridays are a private Members' day. The Whips should keep out of the business and we should, as private Members, progress with the business. Occasionally, rather peculiar results occur as a consequence. If a party whips on a Friday—not individual Members whipping but a party whipping—that is a gross disrespect to the House and private Members.
My hon. Friend will have noticed that Patrick Mercer did not respond directly to my question about whether he was asked by his party to introduce his Bill. Has my hon. Friend speculated whether the same may be the case with this Bill?
One can but speculate. My hon. Friend is right. We see on a Friday the same Bill coming back time after time. Earlier this Session, we again had a Bill on reform of pensions, for example. A Bill on food labelling has been brought back time after time by different Opposition Members. One wonders sometimes where they get their ideas from—let us put it as neutrally as that.
I would simply say that on a Friday there is a free vote. Hon. Members are entitled to have their own views. I disagree with the position of my right hon. Friend Mr. Field and my hon. Friend Kate Hoey on this issue, as I have on a number of other private Members' Bills and Government Bills.
One of the consequences of whipping on the previous occasion was that I was not able to make my speech on the Bill introduced by the hon. Member for Newark. I am grateful to the hon. Member for Vale of York for giving me the opportunity to explain my views on the issue. I shall be as brief as I can, concomitant with my duty to the House, and to the public, to ensure that the Bill is properly scrutinised on Second Reading. Mr. Forth is not in his place at the moment but I am sure he would expect nothing less of me, bearing in mind his views on the importance of parliamentary scrutiny, particularly of private Members' Bills.
The hon. Gentleman will know that the Bill is a popular measure. How many of his constituents has he spoken to about it, and does not he believe that they would want it to pass?
Of course I shall. I have taken a particular interest in that, and although the Committee has yet to review the Bill, it issued a report on the Bill previously proposed by the hon. Member for Newark and there is very little difference in the human rights implications
In answer to Mr. Evans, may I say that I conducted a survey of my constituents, some 2,100 of whom get e-mails from me on current issues? I asked about their views on the Bill. I was undecided at that stage and asked whether they would be interested in a reformulation of the law. I was really quite surprised that the majority of responses said that that would be mistaken and that they wanted a reaffirmation of the current position.
I am sure that my hon. Friend's constituents are intelligent people who took the opportunity to read the background explanation of the present position that he doubtless offered them. Part of our problem with the current law is that people do not understand where they stand.
What difference is there between today's Bill and that previously proposed by the hon. Member for Newark? The short title is different, and I shall say something about that later. There is a definition of "building" in clause 1(2), the Bill extends, through clause 2, to Northern Ireland, and there is a technical amendment to clause 3(2). There has been no attempt, however, other than in the definition of "building", to address any of the criticisms advanced on the previous Bill on Second Reading or in Committee. I am extremely surprised that that opportunity has not been taken as it means that I shall have to remind the House of some shortcomings, which may make my speech a little longer than it might otherwise have been.
We all recognise the legitimate concern of a householder who has to defend himself or herself and his or her property against intruders. That is clearly a dreadful prospect for anyone to face, particularly when they are isolated or vulnerable or if they live in remote areas where help may not be close at hand. Whatever our differences over the Bill, we all recognise that those concerns are real and should be dealt with seriously and sympathetically. We all have a right to expect that our families should feel safe and secure in their own homes.
Bearing in mind the seriousness with which most of us take this Bill, will my hon. Friend confirm that the parliamentary colleagues to whom he has spoken reaffirm and support wholeheartedly the right of householders, shopkeepers and others to defend themselves, their families and their properties with reasonable force?
My hon. Friend is absolutely right. The issue between us is whether people should be able to defend their property reasonably and within the law or to make a disproportionate response.
Being burgled is a frightening experience, and householders who react instinctively and attack intruders will be prosecuted under the existing law only if they use very excessive force. Only in the most extreme circumstances are householders prosecuted for violence against burglars. The Director of Public Prosecutions made it clear on
Is my hon. Friend aware of the press release issued by the Crown Prosecution Service in January, which makes that plain by saying:
"Indeed we routinely refuse to prosecute those reacting in the heat of the moment to finding intruders within their homes. So householders who have killed burglars in this situation have not been prosecuted. Householders who have shot burglars have not been prosecuted. Householders who have stabbed burglars have not been prosecuted. Householders who have struck burglars on the head, fracturing their skulls, have not been prosecuted"?
One wonders what exactly Conservative Members would like householders to be allowed to do.
I am grateful to my hon. Friend for that and may refer later to some other points in that CPS memorandum. She is absolutely right: does the hon. Member for Vale of York want householders to have the right to hang, draw and quarter intruders, for example; or a gentleman in his castle to be able to pour boiling oil on them from the battlements? It is difficult to see what else householders should be permitted to do under the law.
We should not underestimate the emotional impact of burglary. In the British crime survey 2004–05, 86 per cent. of respondents were emotionally affected by burglary, and if there was forced entry, too, the figure was 89 per cent. The responses experienced include: anger, at 56 per cent. for all burglaries and 63 per cent. for burglary with entry; annoyance, at 46 per cent. and 51 per cent. for burglary with entry; shock, for 36 per cent. at burglary and 42 per cent. at burglary with entry; and a loss of confidence or feeling of vulnerability, for 27 per cent. and 30 per cent. That illustrates how serious the offence of burglary is, and we need to take it seriously in the House.
That said, I do not think that the Bill is an appropriate response. Much has been made by the Conservative party of the support that it claims the public have for the Bill. That raises the question of what the public actually know about the existing law. The Bill's proponents pray in aid various opinion polls, particularly that on the "Today" programme. Last time we debated this subject, my hon. Friend the Member for Ealing, North—the recipient, to put it neutrally, of the "Today" poll—made it clear that it was not an honest poll. He said that it was not
"the honest listeners of Radio 4—as far as I can gather, they were all on the slopes at Chamonix at the time".
The poll, he said, was in fact rigged by
"a group of website gun fanatics, headed by an organisation called Cybershooters, who orchestrated a campaign against me."—[Hansard, 4 February 2005; Vol. 430, c. 1109.]
One must question whether the "Today" programme was the victim of practices that one can compare only with the way in which people vote in "Big Brother", or similar television programmes, such as the dancing one on Saturday nights at present.
It is interesting that the Conservative party is prepared to claim public support for how it has approached the Bill, but when it came to the recent Bill on terrorism, on which 76 per cent. of the public back the police on the 90-day minimum, 72 per cent. supported 90-day detention and 77 per cent. said the police should have the powers that they said they needed, the Conservatives, for purely opportunistic reasons, voted against the wishes of the public. How on earth have they the bottle to come here today claiming the support of the public—with no opinion polls to speak of behind them—given the very clear message from the public on that previous Bill? That smacks, at the very least, of double standards, and I shall not use the unparliamentary term hypocrisy.
My hon. Friend is absolutely right. The Conservative party prays it in aid that the police back the Bill, when in fact the police do not. The police certainly back the position advanced on a maximum detention period of 90 days, yet the Conservative party was not prepared to support them on that.
I certainly will refer to the comments of the commissioner, Sir Ian Blair, because I think that he has been misrepresented. During a long interview on the "Today" programme, on one's first day in the job, and given the range of issues relating to policing in London, it is perhaps easy to give an off-the-cuff answer without having had the opportunity properly to consider the response of both the police in London and the Association of Chief Police Officers to the issue in question. To an extent, perhaps Sir Ian was ambushed on his first day in the job.
Does my hon. Friend not feel that, on reflection, he is being a bit harsh on the Opposition? He claims that Opposition Members are aggressively pushing the Bill, but there are no Opposition Back Benchers in the Chamber.
My hon. Friend Dr. Palmer makes an important point. I am pleased that the hon. Member for North Thanet is in the Chamber. I have much respect for him. I know that he takes an interest in this matter, given his private Member's Bill. It is interesting that the only two Opposition Members in the Chamber, apart from the Opposition Whip, are those who have promoted Bills on this issue. No other Opposition Back Benchers are present. The only Liberal Democrat Member in the Chamber is the one on the Lib-Dem Front Bench, Jo Swinson. Yet there are quite a number of Labour Back Benchers in their places, who are ready to give their views on the Bill.
Earlier on, Opposition Members were talking about the incidence of burglary. We must examine the true facts and figures. Burglary peaked in the mid-1990s. According to the British crime survey, domestic burglary from 1995 to 2004–05 reduced by 57 per cent. In 2003–04 to 2004–05, British crime survey and police statistics showed that domestic burglary was down by 20 per cent., and that non-domestic burglary was down by 14 per cent.
The risk of being a victim of burglary has halved since 1995. On average, the chance of a burglary on a particular property is at its lowest for 20 years. On average, a property is likely to be burgled once every 50 years. In my constituency, in July, there were 45 fewer residential burglaries than in the previous year, and there were 48 per cent. more detections. That picks up the point made earlier about detection rates.
We need to challenge some of the perceptions about the likely victims of burglary. We have heard a great deal about rural people and so forth. The people most likely to be victims of burglary are those aged between 16 and 24. Those least likely to be victims are pensioners. The people most likely to be burgled are those with household incomes of below £5,000. Those least likely have incomes of more than £30,000. The most likely victims are those in private rented property, closely followed by social renters. The least likely are owner-occupiers. The most likely are those who are unemployed or economically inactive. The most likely are those who live in flats and not detached houses. The most likely are those who live in urban areas, who are twice as likely to be a victim as those who live in rural areas, particularly people living on council estates. It is probably self-evident that those with high levels of home security are the least likely to be burgled as opposed to those who have no measures of home security. That starts to correct some of the perceptions.
We need to consider also the number of offences in which violence was used in a burglary. In all burglaries, that was about 9 per cent. The prospect of being a victim of violence when a burglary is committed is very low. To an extent, Opposition Members have run a scare story to try to pretend that we are living in a crime-ridden country. In fact, the incidence of burglary is low, and the chance of being a victim of violence during a burglary is extremely low.
One of my concerns about the Bill is that burglars, far from being deterred from breaking into people's houses, may arrive at the view that home owners are more likely to be arming themselves with guns and all the rest of it to defend themselves should they be burgled, and that they should arm themselves too. So if the Bill were to come into force, we may end up with an arms race and with more people being shot by burglars.
I appreciate how my hon. Friend is allowing those of us who are concerned about the victims of crime to intervene on him.
Does my hon. Friend not think it bizarre and irrational that the Opposition appear willing to give the victims of crime in the home greater rights than the victims of crime in the streets? For example, is it not illogical and irrational that the victim of a rape in a park will be allowed to use only reasonable force to defend herself whereas the victim of a burglary in a house would be able to use grossly disproportionate force?
My hon. Friend is absolutely right. I hope to address that issue at greater length when I come to analyse the Bill. To go into more detail, rape can be part of a burglary. A woman who is raped in her own home can use excessive force whereas a woman who is raped in a park cannot do so. That cannot be a sensible way forward.
To deal with the intervention of my hon. Friend Mr. Austin, I think that the Bill defeats its own object. Presumably the object is to make householders feel safer in their own homes and to deter burglaries. I think that the hon. Member for Newark said that the purpose of the Bill was to erode the confidence of burglars. I am concerned that the Bill will encourage people to have a go rather than to call the police. Unfortunately, bearing in mind the profile of burglars, these offenders tend to be younger men. We know that from the crime survey. I have gone through the profile of people who are likely to be the victims of burglary, and I think that the householder is the person who is most likely to come off worst if there is such a confrontation. We have heard examples of that.
The best advice that a householder can be given is to call the police rather than to get stuck in with a burglar. I am concerned that, as a result of the Bill, householders, instead of just losing their jewellery and television, which is serious enough, will end up losing their lives. People will be encouraged to try to defend themselves, but they are likely to come off worst, especially if they are half asleep. Of course, the burglar will be wide awake and will have his senses fully about him.
The hon. Gentleman is going down a ludicrous route. Is he seriously suggesting that a burglar will stand by while someone reaches for his telephone to call the police? Has he ever had his home burgled? Has he ever had his home violated? Does he begin to understand the offence that he is causing this morning?
I am sorry that the hon. Gentleman thinks that I am causing offence. I disagree with him on the issue, but for perfectly logical reasons. He has a view of the Bill and I have a very different view. The hon. Gentleman's Bill would introduce the Oklahoma law, which would allow a householder to use whatever force he wanted to use against the burglar. There would be no arguments about disproportionate force or any other force. I shall talk about the Oklahoma law and its consequences shortly.
The best advice should be always to phone the police. Best advice also is, generally speaking, not to mix it with the burglar if that can possibly be avoided.
I am concerned by the contributions of Opposition Members. Given the choice of having a panic button installed in one's home with a burglar alarm or purchasing a gun with a 10-year licence and having a safe in which to keep it, which option would my hon. Friend advise his constituents to take?
My hon. Friend makes an important point about the need for hardening or protecting one's home against intruders. I shall refer to that later.
My hon. Friend is right. Presumably someone who has a firearm will keep it under lock and key, as is required by firearms legislation. Is the hon. Member for North Thanet suggesting that someone should go down the stairs in his home, unlock the case, get the gun out and load it while the burglar stands by waiting to be shot, or is he suggesting that the firearm should be kept under the pillow in complete breach of firearms legislation?
We know that the hon. Gentleman is here to filibuster and likely to speak for a long time, so the idea of not intervening is nonsense. For the record, he knows perfectly well that no Conservative Member has mentioned firearms at all.
I am not sure that that is right. We will have to check Hansard, because I think that firearms have come up several times. I take great exception to the suggestion that I am filibustering. As the hon. Gentleman would expect, I have a lot to say about the Bill, but if I was filibustering, it would be in breach of the rules and you, Madam Deputy Speaker, would call me to order.
My hon. Friend was asked whether he had been burgled. I can tell the House that I have been burgled three times and I well understand the shock and fury caused when one's home is invaded and one's private property is gone through. I, too, take great exception to being described, as we were earlier, as the burglar's friend. I do not recall referring to Mr. Gale as the terrorist's friend during the terrorism debate. Should he not withdraw the offensive remark that he made earlier?
We were discussing the possibility of someone removing a firearm from a locked case and using it. Is my hon. Friend aware of the case in which armed robbers threatened a pub landlord and barmaid with extreme violence and the barmaid escaped, fetched her employer's shotgun and shot one of the intruders? She was not prosecuted under the current law.
My hon. Friend makes a good point. That case is more exceptional in that the barmaid was able to get the gun than in the fact that she was not prosecuted.
The other way in which the Bill defeats its own object is that it encourages the setting of traps where people lie in wait for a burglar. Perhaps that is what the hon. Member for North Thanet has in mind in talking about how burglars should be confronted. There have been cases where people have been repeatedly burgled and it is a problem, but the answer is not the Bill and certainly not to set traps.
I want to return to the risk of the escalation of violence if the burglar thinks that the householder is likely to have a firearm, knife, sword or other such weapon. In the last debate on this, there was a discussion of the merits of cricket bats and baseball equipment and I was pleased to note that my hon. Friend the Member for Ealing, North equipped himself with a cricket bat in good British tradition. The fact remains that, if householders are likely to have weapons of defence—there is nothing in the Bill to prevent it—burglars are more likely to be tooled up too and there will be an escalation of violence, or, as my hon. Friend the Member for Dudley, North put it, an arms race between the burglar and the householder.
The other risk is that burglars may go for softer targets. They may think it too risky to choose households where people are armed with swords or knives. They will be less likely to confront the firearm-owning toff but more likely to invade the home of the old lady living alone. The Bill would have a disproportionate effect: the lord in his castle armed with his shotgun would mean that the burglar would be more likely to carry firearms, while the old lady in the Burnt Oak estate in my constituency would be at more risk of being severely beaten by an intruder. She would not be in a position to defend herself, not because of the law, under this Bill or the previous one, but because she is frail and the burglar has switched his modus operandi because he is frightened of attacking wealthier homes, which, as the figures I gave earlier show, are less likely targets anyway.
Does my hon. Friend accept that many burglars commit burglaries to fuel a drug habit? If a burglar is high on an illegal substance, the last thing they will do is sit down and analyse whether there is a deterrent, be it a baseball bat or whatever. They will commit the crime to fuel the drug habit. The Opposition's argument that the measure will be a deterrent is nonsense.
My hon. Friend makes the point clearly. If someone is under the influence of drugs or alcohol, the mental faculties and the ability to discriminate between right and wrong are inevitably impaired. We all know the phrase "Dutch courage". In those circumstances, the deterrent effect of the Bill would inevitably be significantly reduced.
The Bill sits uneasily with the existing offence of aggravated burglary under section 10 of the Theft Act 1968. A person is guilty of aggravated burglary if he commits a burglary and at the time has with him any firearm or imitation firearm, any weapon of offence or any explosive. "Firearm" in those circumstances includes an airgun, air pistol or imitation firearm. "Weapon of offence" means any article made or adapted for use for causing injury to or incapacitating a person. If a burglar commits an offence while tooled up for violence, he is liable on conviction on indictment to imprisonment for life. The reason given by the criminal law revision committee for the creation of this offence is that burglary when in possession of the articles mentioned is so serious that it should be punishable with imprisonment for life.
The Bill would lead to more offences under section 10 of the Theft Act because more burglars will go around more heavily armed. There will be a significant ramping up of the risk to householders from burglary.
Will my hon. Friend comment on the practice of Wandsworth police, particularly in Tooting, who spend much time advising residents about locks on their windows and installing panic buttons and explaining to the elderly how to prevent burglary? That has led to crime figures, especially burglary, going down. Surely that is the advice we should give local residents, rather than telling them how to defend themselves with cricket or baseball bats.
My hon. Friend is right. It is more important that people get adequate crime prevention advice. Protecting one's property against burglary is one of the best ways of defeating it.
For another reason why the Bill defeats its own object one simply has to look at the Bill's long title. It is called the Criminal Law (Amendment) (Protection of Property) Bill. It is not the Protection of Householders Bill, as I think the previous Bill was entitled, or the Protection of Victims Bill. That gives it away. The Bill is about property, not about people, which is one of its most serious weaknesses. The Bill proposed by the hon. Member for Newark was specifically aimed at trying to help the domestic householder, whereas this Bill is aimed at protecting property.
On the question of property, will my hon. Friend give me his assessment of the position? As I understand it, one would be covered by the Bill if someone broke into one's house to steal a television, but if someone was trying to steal a car parked outside the house, one would not be covered. It seems to me that there are also grey areas in the Bill's definition of property.
My hon. Friend is absolutely right that the Bill is riddled with anomalies. If it has the fortune—or, rather, the misfortune—to pass its Second Reading today, those anomalies would have to be explored in great detail in Committee. If the Bill were passed in its present terms, it would create significant anomalies in the law and leave victims or those who face crime in the impossible position of not knowing where they stood. I hope to say a little more about that later when I debate the detail.
I apologise for having had to leave the Chamber temporarily. I want to check a point with my hon. Friend about the definition of "building" in the Bill. If one family were in a caravan and another in a tent on a campsite, the family in the caravan would be allowed to use the unreasonable force provision, but the family in the tent would not, because buildings cover caravans and not tents. Is that not another anomaly?
My hon. Friend is absolutely right and he presages some of the remarks that I shall make later in my speech.
The problem of the Bill being a protection of property measure also sits uneasily with the existing offence, which has developed over the years, of burglary in respect of a dwelling—it is set out fully in the eighth edition of the seminal work "The Law of Theft" by Professor Sir John Smith—for which a much more serious penalty is imposed.
I am grateful to my hon. Friend for giving way again. On my understanding of the Bill, if one were out shopping and someone tried to steal something while one was in a covered shopping mall, using greater force would be justified because it is a building, but it would not be justified if one were in the high street. People would be covered in an indoor market, but not in an outside market—yet another anomaly on which I would be grateful if my hon. Friend would comment.
My hon. Friend is absolutely right. There is no doubt that a shopping mall or department store, such as those in Oxford street, or at Brent Cross in my constituency, counts as buildings. Someone walking in the concourse area, even if not actually in a shop, would be covered by the provisions, but if they were in an outdoor market in my constituency, they would not. I believe that that is an anomaly.
I am grateful to my hon. Friend for giving way so generously. He has already explained that the powers are not limited to houses or homes, but to any building. Does he agree that the person who uses force does not have to be the owner or even a legitimate resident and that the person using unreasonable force could himself be a trespasser?
My hon. Friend is right about that and I intend to expand on the point in a few moments.
I was making a point about burglary in respect of a dwelling. The law already recognises a distinction whereby burglary from a dwelling is a more serious offence. Those who commit such offences are subject to much more serious penalties under the law. It is regrettable that the original formulation proposed by the hon. Member for Newark has not been maintained in the present Bill, which attempts to stretch it way beyond what was initially intended—perhaps beyond what was intended by the people who voted in the listeners' poll on the "Today" programme. That is a problem not helped by the additional anomalies in the Bill.
Reference was made earlier to the Oklahoma law, which it is important to look further into, particularly in respect of what happened as a consequence of that law. It provides an object lesson in what might happen here if the Bill were to find favour with the House.
I am grateful to my hon. Friend for allowing so many interventions, which is welcome on the Government Benches. Before he moves on to discuss the Oklahoma law, will he say whether he believes that the Bill could provide an incentive to in-store security guards to be much more aggressive in stopping potential thieves before they leave the premises? It could lead to a disproportionate, but obviously not a grossly disproportionate, response by security guards in apprehending offenders before they pass through the door of the shops and go into the street outside.
My hon. Friend makes an entirely correct and very good point. Currently, if a shoplifter tries to leave the premises—technically, they are committing a burglary under theft legislation—the security guard can use reasonable force to detain them. In other words, if the shoplifter is trying to escape, the guard can grab hold of them and detain them, pending the arrival of the police. Under this Bill, if the shoplifter tried to escape there would be nothing to prevent them from being beaten half unconscious, simply because they had tried to walk out with stolen goods. Of course, the problem is even greater for people who leave the shop by mistake, having picked up an item and forgotten to pay for it. Such people may appear to be shoplifters, but in fact they have made a genuine mistake. By the time the mistake comes to light, however, they could be lying on the floor in a pool of blood.
Elderly and confused people in the early stages of Alzheimer's sometimes making such mistakes is a well-known phenomenon. My hon. Friend is absolutely right: they could face physical violence from security guards who may go a little over the top, knowing that, under this Bill, they would not be prosecuted.
The delay in my rising is the consequence of my just having come to terms with the implications of this draconian and absurd Bill. Will my hon. Friend confirm that in discussing the Oklahoma law, he will talk about the number of people who have been shot dead as a result of it? Will he further confirm that it is referred to locally as the "Make my day" law?
My hon. Friend is right: the Oklahoma law has nothing to do with the musical of the same name; it has been named after Mr. Clint Eastwood's famous line—"Make my day, punk"—from the motion picture "Dirty Harry". Under the "Make my day" law, in effect, anyone who dares to enter someone else's property can be shot dead; any force is permitted. It goes further than the Bill before us today, but in the direction that the hon. Member for North Thanet wanted to go with his Bill, had it made progress.
Although we are not debating the Oklahoma Bill today, we can draw some conclusions from its effect on crime rates, particularly those for burglary, and decide whether it achieve its claimed objective. Given that it contains even tougher measures than those in the Bill before us, if it did not work in Oklahoma, one can only assume that this Bill would make no difference whatsoever to the incidence of burglary. Between the Oklahoma law's introduction in 1987 and 2000, there was a 48.5 per cent. fall in burglaries. Very good, but that is almost exactly the same as the decline in burglary in the United States as a whole, where the law was not nationwide. So in fact, the law made practically no difference whatsoever to that decline. Even more interestingly, under existing provisions allowing homeowners to defend themselves, UK burglary figures have fallen even further, over a shorter period, than those for Oklahoma or for the US in general.
Will my hon. Friend reflect on the appalling situation whereby home owners in the US are being attacked and shot with their own weapons? In some instances, the burglar has broken in and the home owner has produced their gun, only for the burglar to grab it and shoot the home owner. I should also correct my hon. Friend's earlier point: I believe that Clint Eastwood actually said, "Go ahead, punk, make my day."
In fact, I think that the film was "Sudden Impact", rather than "Dirty Harry". However, we have the right actor, even if I named the wrong movie and got the quote wrong; the Oklahoma law is certainly known as the "Make my day" law. Perhaps we can move out of the movie theatre, so that I can draw my introductory remarks to a close and turn to the Bill's detail.
The Bill in effect changes the law of self-defence in relation to burglary. The current law of self-defence is set out in section 3(1) of the Criminal Law Act 1967:
"A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large."
That is a very general definition. For a little more detail, one must go to the bible of criminal law, "Archbold"s Criminal Pleadings, Evidence and Practice". I consulted the 2005 edition, which states that the provisions of section 3
"cover the great majority of cases of self-defence and defence of others, and many cases of defence of property"— which is what we are talking about—
"for in these cases the person who uses lawful force will be doing so for the purpose of preventing crime."
"Archbold" notes that section 3 reflects the common law.
"the defence of self-defence is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought . . . Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may only do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. Of these a jury can decide".
I am glad that my hon. Friend mentioned the common law defence. He will be aware that "Archbold" also suggests that section 3 would not cover all cases of defence of the person, noting that if a person was attacked by someone who was insane, so as not to be responsible in law for his acts, the common law defence would apply and kick in. Is not one of the problems with the Bill, introduced by Her Majesty's official Opposition, that there would be a difference between the statutory defence and the common law defence? If the Bill was passed, there would be a differential law that was less generous to an insane person than statutory law.
My hon. Friend makes a good point and I can add nothing to it. I was not planning to raise that issue so I am grateful to him for doing so.
Lord Morris went on to say:
"If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation."
That is what the Bill would create: a situation in which a relatively minor attack could be met by something completely out of proportion. Lord Morris continued:
"If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score . . . There may no longer be any link with a necessity of defence."
That position is not covered by the Bill, but many people may think that it was and they could be criminalised. Under the present law, they may hold back.
Does not that illustrate the point I made earlier? Although we have to accept that members of the public feel that the current law has grey areas, the Bill would only move us to a new grey area, with new dangers and a different set of circumstances under which people could be prosecuted. We could make the situation worse.
My hon. Friend is right. There would still be a grey area because we would still be arguing about what was or was not excessive force, but there would be a further grey area, perhaps tinged with red blood, in that the issues with which we would be dealing would be the consequences of much greater violence.
Lord Morris also said:
"If there has been an attack so that defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken."
In other words, the current law is rooted in common sense. My concern is that what we are being asked to agree to goes way beyond that. It is not common sense. It would make things far worse.
Conservative Members have made great play of the fact that the Bill would act as a deterrent, yet the only evidence they have been able to produce was given by one convicted burglar.
My hon. Friend Janet Anderson makes the point clearly and my hon. Friend the Member for Tooting also makes the point that the burglar in question was not exactly an objective observer of the situation, as he was a victim, having been shot in the buttocks. His view of what may or may not be appropriate could be rather different from that of a burglar who has yet to experience a response from a householder.
I am not sure whether my hon. Friend has moved off Palmer, but my intervention is about the Palmer point. My hon. Friend quotes Lord Morris and refers implicitly to the subjective and objective test. Does he agree that the test of whether force used in self-defence is reasonable is largely objective? However, the last sentence of the quote from Lord Morris emphasises that there are subjective elements that would depend on a defendant's specific circumstances. That means that the safeguards that we all want are in the law at present, so the Bill is clearly redundant.
My hon. Friend makes an important point. He is right that when we consider self-defence, we have a mixed objective and subjective test. There is a slightly different test in the civil law, and I hope to refer to that shortly because the simple alignment of civil and criminal law is prayed in aid by those who support the Bill. However, the measure set out in the Bill is an objective test, so we are all over the place. Are we considering the mind of the person who commits an attack on the alleged criminal, the general reasonableness test, or a mixture of the two? The whole position will be very different depending on the circumstances in which an attack takes place.
Does my hon. Friend agree that if those who support the Bill are serious about getting it on to the statute book, it is disappointing that such matters have not been clarified since the last time that the House considered such a measure?
My hon. Friend is absolutely right. A series of criticisms were made on Second Reading of the previous version of the Bill that was promoted by the hon. Member for Newark. I am surprised that the opportunity was not taken in the intervening period to get some of the tackle in order and produce a Bill that at least addressed some of those problems, which might have found more favour in the House today.
Does my hon. Friend agree that the existing legislation works and is sound, but is not widely understood by the public? I am sad that the promoter of the Bill, Miss McIntosh, is not in the Chamber and is thus unable to hear what are hopefully my pearls of wisdom. Does my hon. Friend thus agree that Opposition Members would have done better to direct their energies at making the public more aware of the existing legislation and how it can be used to protect the householder and property owner?
My hon. Friend is right. The Bill has effectively suggested to people that they have a weaker right to defend themselves than they actually do. It is confusing the position to such an extent that people do not know where they stand. If Opposition Members had been acting responsibly, they would have given out copies of the CPS leaflet in their constituencies. I distributed a large number of those leaflets so that people would know where they stood if they faced such a situation. It would have been rather more constructive if Opposition Members had explained what the policies of the CPS were and what the law was, instead of trying to frighten people into thinking on the one hand that they cannot defend themselves, and on the other that the country is rife with burglary.
Does my hon. Friend agree that this is yet another example of Her Majesty's official Opposition ignoring the advice of the police? We know that the Association of Chief Police Officers does not think that the Bill is necessary, so Opposition Members are behaving in the same way in which they did when they ignored the advice of the police about the Terrorism Bill and refused to support the Government.
My hon. Friend is absolutely right. I made that point a little earlier, but perhaps she was not in the Chamber at that stage. The Opposition have operated something of a double standard—I put that neutrally, bearing in mind Madam Deputy Speaker's earlier constraints on the use of emotive language in the debate.
My hon. Friend explained the sensible and mature way in which he behaved as an MP by ensuring that his constituents were aware of the CPS guidance. Is he talking about the joint public statement of the CPS and ACPO that was issued earlier this year? He has not yet referred to guidance in his speech, so as I prepare for my speech, will he confirm whether he will do so?
I hope to deal with that shortly, because it is important that we understand where the law stands.
I was talking about the black letter law expounded by Lord Morris, who was explaining the common law in the case of Palmer. Basically, it is a common sense test, and who can object to that? Many other myths have developed. In paragraph 19.42 in the section on offences against the person in "Archbold", the old rule that a man who is attacked must retreat as far as he can has disappeared. Whether the accused retreated is only one factor for the jury to consider when determining whether force was reasonably necessary. Moreover, the same paragraph states that there is no rule of law that a man must wait until he is struck before striking in self-defence. If another person strikes at him he is entitled to make his blow first if it is reasonably necessary to do so in self-defence. The existing law therefore goes further than most people think.
Moreover, if the defence of self-defence is offered, the burden of disproving it is on the prosecution, not on the defendant facing trial. "Archbold" says that where such a defence is offered, the burden of negativing it rests on the prosecution. If, on consideration of all the evidence, the jury is convinced of the innocence of the prisoner—"Archbold" uses old terminology because it is citing an old case—or is left in doubt as to whether he was acting in necessary self-defence it should acquit. In the Crown v. Abraham the Court of Appeal said that a judge should deal with the issue by telling the jury that someone who acts reasonably in self-defence commits no unlawful act. Just as it is for the Crown to show that the plea of not guilty is not acceptable, so the Crown must convince the jury beyond reasonable doubt that self-defence has no basis in the present case. There are therefore many safeguards in the existing law.
We must also look at the charging standard text used by the CPS, which was published on
The advice to prosecutors continues:
"In assessing the reasonableness of the force two questions should be asked: was the force used justified in all the circumstances? . . . and was the first force used excessive"?
The courts have shown that both questions are to be answered on the basis of the facts, as the accused—the householder—honestly believed them to be. To return to my exchange with my hon. Friend the Member for Tooting, the test is a subjective one. The issue of whether a reasonable person would regard the force used as reasonable or excessive is the subsequent question, not the primary question.
My hon. Friend gave figures for the decreasing number of burglaries in the past 20 years. Last year, there were 943,000 burglaries, which is the lowest figure for 20 years. There have been approximately 10 million burglaries in the past 15 years, but there have been only seven cases in which a householder has been prosecuted for defending himself against an intruder. Does that not confirm that the CPS is applying the guidance that he cited correctly?
My hon. Friend is basically right, and I hope that we can analyse some cases in more detail later. Many of the cases that have been prayed in aid by the Opposition predate the guidance in the CPS charging standard text, which was published in November 2004. They certainly predate the joint statement by the CPS and ACPO, which was first published in January 2005 and subsequently produced as a leaflet.
I am not aware, and I will happily give way to any hon. Member in the Chamber from any quarter who has information to the contrary, of a single case that has been prosecuted against a householder defending himself since those new guidelines and the joint statement were published.
I am sure my hon. Friend is aware that the leaflet to which he referred, the joint statement from the CPS and ACPO, makes it clear that householders do not have to wait to be attacked before they can take action. It states:
". . . if you are in your own home and in fear for yourself or others. In those circumstances the law does not require you to wait to be attacked before using defensive force yourself."
My hon. Friend is right. The statement was welcome, as it clarified the law. As I said, I was able to obtain a number of copies—several thousand—which I distributed door to door, to people who had raised crime issues with me in my constituency. Letting people know where they stood was a far more constructive way to approach the debate than the Opposition's attempt to change the law.
My hon. Friend may wish to point out, for the record, that it is clear from the Library research paper and from other research that I have done that there are no current cases where a householder is being prosecuted.
I am disappointed that Patrick Mercer has just left his place. I had hoped to get the intervention in while he was still in the Chamber. I would be interested to hear my hon. Friend's comments on my previous intervention on the hon. Member for Newark, when I referred to the case that was cited. The individual in question was arrested and would still be arrested under the proposal in the Bill. The second intervention, which I sadly was not permitted, was intended to highlight the fact that the CPS guidance to which my hon. Friend refers would address that issue and would not allow that to happen under the current law dealing with reasonable force.
"It is a rare and frightening prospect to be confronted by an intruder in your own home."
By issuing the statement, the two bodies are responding to public concern about householders defending themselves. It goes on to state quite clearly:
"Anyone can use reasonable force to protect themselves or others . . . You are not expected to make fine judgements over the level of force you use in the heat of the moment. So long as you only do what you honestly and instinctively believe is necessary in the heat of the moment, that would be the strongest evidence of you acting lawfully and in self-defence. This is still the case if you use something to hand as a weapon.
As a general rule, the more extreme the circumstances and the fear felt, the more force you can lawfully use in self-defence."
It goes on to say, as we heard from my hon. Friend the Member for Rossendale and Darwen, that
"the law does not require you to wait to be attacked before using defensive force yourself."
One point that has not been explored in detail yet is that the Bill states that even grossly disproportionate force can be used if the person using that force was not aware that it was grossly disproportionate. Does that not open an enormous grey area, which is not present in the current law? In the current law there is the test of reasonableness that juries interpret in a reasonable way. Under the Bill, if I can persuade the jury that I was not aware that it was grossly disproportionate to stab somebody who had just walked on to my garden, I would be required to be acquitted. Is that not a very large grey area?
My hon. Friend raises an interesting point which is to do with what the law calls mens rea. To be honest and fair to the promoter of the Bill, I am not entirely sure that my hon. Friend has construed the Bill accurately in that respect, but I hope to come to the issue in due course.
Before that intervention, I was referring to the joint statement by the CPS and ACPO, which deals with what happens if an intruder dies. It makes it clear that if a householder acts in reasonable self-defence and an intruder dies, then the householder will still have acted lawfully. However, it goes on to caution that if, having knocked someone unconscious, a householder decides to hurt or kill an intruder in order to punish them, or if a householder knows about an intended intruder and sets a trap to hurt or kill them, that householder would be acting with excessive and gratuitous force. In such cases, the householder would be prosecuted under the existing law. Even if the Bill were passed, a householder in those circumstances would still be prosecuted. Where is the additional advantage to the public from that change?
One of the concerns that has been expressed today is about what happens if the police turn up and believe the intruder rather than the householder. The statement makes it clear that
"The police weight all the facts when investigating an incident. This includes the fact that the intruder caused the situation to arise in the first place."
However, it also makes the fair point that investigations are necessary, because
"On occasions people pretend a burglary has taken place to cover up other crimes such as a fight between drug dealers."
Importantly, the police and the CPS have said that they are determined that when cases are investigated,
"they must be investigated and reviewed as swiftly and as sympathetically as possible . . . An experienced investigator will oversee the case . . . and the case will be prioritised to ensure . . . a quick decision."
The statement concludes:
"It is a fact that very few householders have ever been prosecuted for actions resulting from the use of force against intruders."
"The law is on the side of householders . . . It is only in the most extreme circumstances that householders are prosecuted for violence against burglars . . . the law understands that when people are under attack in their own homes they cannot judge precisely the level of their response . . . So long as they do no more than they honestly and instinctively feel is necessary in the heat of the moment, that will be the strongest evidence that the householder has acted lawfully. Indeed we routinely refuse to prosecute those reacting in the heat of the moment . . . So householders who have killed burglars . . . have not been prosecuted. Householders who have shot burglars have not been prosecuted. Householders who have stabbed burglars have not been prosecuted. Householders who have struck burglars on the head, fracturing their skulls, have not been not prosecuted."
Mr. Macdonald goes on to say that the CPS has been able to find only a handful cases in which prosecutions have resulted from domestic household burglaries.
Is my hon. Friend surprised to hear that in informal conversations with serving police officers at a level far junior to that which he has just quoted, those officers all expressed the view that cases in which a householder takes reasonable steps in confronting a burglar never even reach the point at which charges are laid, unless the householder in question brags that they were lying in wait? Police officers use their common sense when they see that people have behaved reasonably.
My hon. Friend is right. That is the common sense required by the Crown v. Palmer and the dictum of Lord Morris, when he set out the law more than 30 years ago. The present position was best summed up by the Under-Secretary of State for the Home Department, my hon. Friend Paul Goggins, who replied to the debate on the Bill introduced by the hon. Member for Newark:
"There are three levels to the provision: first, we have the law," which I have described as the black letter law,
"which the Government believe is perfectly adequate"— most Labour Members share that view—
"to allow householders to take whatever steps are necessary to defend themselves and their families . . . secondly, the leaflet explains that law in simple, straightforward terms to the general public . . . thirdly, we have the guidance against which the police and the CPS weigh each case."—[Hansard, 4 February 2005; Vol. 430, c. 1132.]
That belt and braces approach has borne fruit, which is why we have seen no prosecutions whatsoever since those changes were introduced more than a year ago.
There is another safeguard in the event that a case slips through the net and is prosecuted—the common sense of the jury who will consider all the circumstances. My hon. Friend will be aware from his experience in a previous life that juries are very sensible. I am sure that the jury would acquit in a case where a householder had used force that was reasonable.
My hon. Friend is right. Juries have common sense. Most of the few cases that did reach trial resulted in the acquittal of those involved, and I believe that those that did not reach trial would have resulted in convictions under the proposed law.
Why change the law? There is no support to speak of from those involved professionally, who actually have to deal with the problem—although I know that the Conservatives like to ignore professional advice, as we saw in relation to terrorism. My hon. Friend Mr. Flello mentioned police on the beat, and we could cite more senior police.
"Specifically on the law on self-defence, I am satisfied that the individual should always be able to defend himself, his family and his property, as long as he only uses force that is both reasonable and necessary. I am not currently persuaded that there is a need to change the law."—[Hansard, 14 December 1993; Vol. 234, c. 533W.]
I am grateful for my hon. Friend's comments. We must wait and see what attitude is taken by the forthcoming Leader of the Opposition. The candidate in question may well believe in consensus politics and working together, and will decide that the existing law is satisfactory. That might assuage my hon. Friend's concerns.
That has been remarked upon before.
The hon. Member for North Thanet challenged me to say why I do not agree with my right hon. Friend the Member for Birkenhead and my hon. Friend the Member for Vauxhall about the Bill. Perhaps I could ask him why he does not agree with the Leader of the Opposition, who made his position absolutely clear.
My right hon. and learned Friend expressed a point of view in 1993, as the hon. Gentleman suggests, but changed his view in the light of subsequent experience. That is why he and the Conservative party supported the Bill promoted by my hon. Friend the Member for Newark.
I am pleased to hear the hon. Gentleman confirm a U-turn on the part of the Conservative party, although it may have been in the wrong direction, as was reflected in the local elections earlier in the year. Perhaps that provides my hon. Friend the Member for Tooting with the reassurance that he no longer runs the risk of finding himself in the same Division Lobby as the right hon. and learned Member for Folkestone and Hythe.
I am grateful to my hon. Friend for clarifying his position.
The position of the Association of Chief Police Officers has not changed since the hon. Member for Newark introduced his Bill. When the leaflet that I mentioned was launched, Chris Fox, the then ACPO chair, said:
"We want everyone to clearly understand that they can use force to protect themselves or others. The force used should be reasonable force."
Sir Ian Blair, the Metropolitan police commissioner, gave his support to the ACPO position after the problems that he had had on the "Today" programme on his first day. The Metropolitan police have since indicated that that remains their position. We already know that the Director of Public Prosecutions is of the same view.
"The law is simple and weighted overwhelmingly in favour of the householder."
"Even if the suggested test of grossly disproportionate force had been used it is likely that the jury would still have convicted."
He went on to say:
"The law is quite right to favour the use of force against them"— the intruders—
"in such a situation, as it already does".
My hon. Friend is absolutely right. My only difference with Mr. Scrivener was when he decided to take Lady Porter's shilling and to defend her in the House of Lords. We parted company at that point; up till then, I had had a lot of respect for him. That slightly took the edge off my admiration for him in terms of the briefs that he took, although obviously it did not detract from his advice in this particular case.
I am sure that my hon. Friend recognises the cab rank rule. I am sure that he understands that Mr. Scrivener's decision to take that case was based on that rule rather than on any personal views he may have had.
I am sure that is so, but perhaps some cabs are more expensive than others—let us put it that way.
I should now like to examine the Bill in detail, because the problems really start to emerge when we try to construe the consequences of the provisions in their present form.
My hon. Friend has made a good point. I suspect that Sir Ian Blair was caught unawares during a long interview on the "Today" programme, that he took the earliest opportunity to correct the impression that he may have given, and that he then fell in line with ACPO. Unfortunately, it seems to have taken the right hon. and learned Member for Folkestone and Hythe more than a decade to change his position. One can draw whatever conclusions one wishes from that.
"Where a person uses force".
What is meant by "person" in these circumstances? It could be anybody. The provision is not confined to a householder, as it was in the Bill introduced by the hon. Member for Newark. It is not confined to a legal resident, or even to a security guard. "A person" could be anyone at all. It could be a squatter taking action against the lawful owner of the property who had come to try to remove his possessions or repossess the property. Under the Bill, a squatter would be entitled to use disproportionate force, so long as it was not excessive, against the legal owner of the property. Is that how the alleged party of law and order believes the Bill should be interpreted?
Could not the person be another criminal, seeking to steal the same property, attempting to deter his rival from getting there first? Would not he be entitled to use disproportionate force in those circumstances?
My hon. Friend is absolutely right. We might see some further examples as the debate progresses.
What would happen when the police turned up and found the body on the carpet, Agatha Christie-style, and drew their chalk line round it? What would happen then? The attacker/householder might say that the victim was a burglar, an intruder, or a trespasser. How could the police check that, especially if both parties had a criminal history, as my hon. Friend the Member for Broxtowe suggested? For example, both might be drug dealers. Such a possibility was highlighted in the ACPO leaflet, which stated that the police had to investigate such cases because things were not always as they seemed.
Alternatively, to give a more innocent example, let us suppose that there was a dispute between two neighbours. We have all had to deal with those in our constituency surgeries. Let us suppose that two neighbours have fallen out and one is found dead on the kitchen floor of the other. The householder says, "Well, he may be my neighbour, but he was coming to pinch my belongings." The neighbour might have come round to argue about the ball going over the fence or the noisy stereo, but we have no way of knowing that, and disproportionate force would have been used. The risk of revenge and pursuit attacks is created by the Bill.
The Bill states that a person can pray in aid the defence provided by the Bill if they are in a building, but also refers to protection of personal property. One of my problems with the Bill is that the person might forget that the law changes the moment they leave the front door. Different rules apply if someone chases a burglar down the street as opposed to when the burglar is inside the property.
My hon. Friend is much more skilled and learned in these matters than I, but as I read the Bill, it would apply to any building or part of a building. As I understand it, therefore, the law would change when a person went through the front door but was still on someone's property, let alone on a public highway.
My hon. Friend is right. When we come to consider the Bill in more detail, we will need to spend some time on the definition of "building", because it creates a series of additional anomalies beyond the obvious one that my hon. Friend has rightly and quickly spotted.
The problem with the lack of definition is compounded by the point raised by my hon. Friend Jim Dowd. The Bill refers not only to a person in the property that he occupies or owns, but to any person in any building or part of a building. What happens, for example, to a person who happens to exit a property on an estate? If, in exiting the front door, that person is still within the building, let us compare and contrast that with the position for someone who exits a terraced property on to the street. Does not my hon. Friend agree that the position is absurd?
Would it not be possible to have a bizarre, cartoon-like nonsense with someone running from building to building, and it is okay to use disproportionate force when they are in a building, but not okay when they are not. The perpetrator might do everything to avoid running into a building so that he cannot have disproportionate force inflicted on him. He will run for the nearest piece of open ground rather than being trapped in any building.
My hon. Friend's suggestion is not as far-fetched as it might seem. When I was a Westminster councillor, my council ward had large blocks of flats that were joined together by walkways. One of the problems experienced by the police was people running from one building along the walkways, which were open and therefore not part of the building, into the next building. They ran round and round the maze of the estate in that way to avoid the police. My hon. Friend is right that if the police or a householder grabbed them in a flat or in the corridor, they could use excessive force, but if they grabbed them on the walkway, they could only use reasonable force. How can that be common sense? That is the consequence of the Bill as drafted, however.
My hon. Friend has given examples of crime statistics, showing that our constituents in urban areas are more likely to be victims of crime than those in rural areas. Is not the lack of definition and clarity in relation to "building" another example of the arrogance of Conservative Members who wish to pass a Bill that would only assist, in a limited way, parts of certain constituencies?
I think that my hon. Friend is a little harsh in talking of arrogance; I think that it is probably ignorance of how the other half lives, given the rarefied circles in which Conservative Members might mix. I mentioned earlier that, according to the burglary figures, the most likely victims of burglaries are those living on council estates on modest incomes, rather than the lord in his castle or the detached householder in the country. Conservative Members seem to have overlooked the statistics in favour of a good headline, however.
To be fair, the Bill does attempt to clarify the meaning of
"building or part of a building" by referring to section 9 of the Theft Act 1968, under which any inhabited vehicle or vessel is covered. Case law has established that a large freezer standing in a farmyard counts as a building. Does the proposed law not bring us into the realm of the ridiculous, where a struggle will vary in its terms depending on whether one has stumbled into a yard or a freezer, got into a car or whatever?
My hon. Friend makes an important point. We must look at section 9 of the Theft Act later when we consider the question of building in a little more detail. We have seen examples of a number of anomalies so far but we are only scratching the surface. When we start to examine what the Theft Act says and wider case law, beyond the example that my hon. Friend provides, we will see how ridiculous the consequences of the Bill may be.
If my understanding is correct, a thief running from a building who is desperate not to run into another building will not use a getaway car. He will use a getaway pushbike; otherwise, he could be in a building under the Theft Act and subject to a more disproportionate action.
I think that my hon. Friend is wrong in that respect because—my hon. Friend the Member for Broxtowe may have been highlighting the problem—when one examines all the definitions of "vehicle", one realises that it may not actually mean a vehicle. It is a little more confusing than that, as will become apparent when I look at the definition of "building" later in my remarks.
My hon. Friend seemed to suggest that Conservative Members think that they are creating something that meets the needs of those in rural communities. I used to live on a farm in Stanleytown in the Rhondda. On one occasion, I saw people at the other end of the barn, which was at the end of a field. If one were going to investigate that, which many farmers might want to do, one would not want three different sets of laws to be governing what use of force one could use. Therefore, the Bill fails to meet the needs not just of people living in cities, but people living in rural areas.
My hon. Friend is right. The problem with the Bill is that it creates so many anomalies that people will not know where they stand. At the moment, the law is clear. It is common sense, but under this Bill common sense goes out of the window.
If my understanding is correct, members of the general public who are not able to have such eminent and knowledgeable friends on their side at the time of a burglary would not know that they could not use disproportionate force, so where is the clarification that the Bill seeks to introduce?
My hon. Friend answers his own question. There is no clarification; it makes things far worse.
Before that round of interventions, I was construing the term "person" in clause 1(2), which introduces new subsection (1A). The next question I pose is: what if the householder—I will use the broad meaning of the word "householder"—attacks someone by mistake? What if it turns out that the person they attack is not a burglar but a neighbour returning a lawnmower late at night, or a genuine gasman—not the artificer who has come to nick the money out of the teapot—who has come to read the meter?
At the moment, if there is a mistake of fact, the reasonableness, or otherwise, of the mistake is a factor to be taken into account when determining whether the mistake was or may have been a genuine one. Thus, where a defendant was neither under threat nor actual attack but honestly believed that he was, the jury should be directed to consider whether the degree of force used was commensurate with the degree of risk that he believed to be created by the attack. What that means, if that basic principle of law will still apply, is that the gasman or the neighbour returning a lawnmower could be half beaten to death, but it would be all right for the assailant homeowner to say, "I made a big mistake, I'm very sorry and mortified, but that's life and I'm not being prosecuted." That would not be much consolation to the gasman or neighbour lying in a pool of blood. The Bill effectively encourages that level of violence. At the moment, if a mistake like that were made, the gasman or neighbour might get a punch in the mouth or be pushed over, receiving lesser injuries than might be likely if the Bill were enacted when the householder could use excessive force.
My hon. Friend is right. Some of the language used, the circumstances described and the arguments being prayed in aid of the Bill by the Opposition parties have made that pretty clear. We are looking at the introduction of vigilante law, and law, at that, that is unclear and uncertain and would result in people who believe they are doing the right thing facing prosecution when, at present, they would not.
My hon. Friend gave the example of a householder making an innocent mistake in the absence of mens rea. Is not it another problem that the Bill will lack the risk jurisprudence and case law we already have under section 3 of the Criminal Law Act 1967? The new subsection (1A)(b), which talks about what
"ought to have been apparent" to the householder, compounds that error? Before, a subjective element was required, and that is missing here.
I am not sure I entirely agree. If section 3 of the 1967 Act were to be amended, the new subsection (1A)(b) would, as I read, it provide an objective rather than a subjective test, in that it suggests something "ought" to have been apparent to the person using force, rather than relying on what that person believed.
I think I agree with my hon. Friend Mr. Dismore rather than my hon. Friend Mr. Khan on that point. However, the point surely is that in using the terms "proportionate" or "disproportionate", we do not ascertain what the response would be proportionate or disproportionate to. Is it proportionate or disproportionate to the amount of fear felt by an individual, or to the actual force used, or to the force that might possibly have been used? Surely that is a problem in the Bill.
My hon. Friend is correct, and I hope to explore that issue later. The problem is that there is no common law interpretation of those terms, and nor is there any guidance in the Bill. Nor, for that matter, was there any guidance in the Criminal Justice Act 2003, which introduced the test into civil law, and which has been prayed in aid by the Opposition as they have made their proposals today.
My hon. Friend is absolutely right to raise that. I was construing the phrase "grossly disproportionate" jointly, but one can consider it disjunctively as well, which creates two questions. As far as I am aware, there is no guidance in the common law, and there is certainly none in the Bill or any other statute, on the definition of either term. Of course, it is bizarre to say that people should use disproportionate force, never mind grossly disproportionate force. The Bill would endorse people doing something disproportionate either to their fear or to the level of the attack they experienced, and that seems, as my hon. Friend the Member for Stoke-on-Trent, South said, to be a licence for vigilantism.
Are there not additional problems with "grossly disproportionate"? The concept is completely alien to the European convention on jurisprudence, which refers to proportionality and disproportionality, not "grossly disproportionate". Secondly, there is the reference to the Criminal Justice Act 2003 in that context. "Grossly disproportionate" applies in the civil context, where the burden of proof is quite clearly different from that in criminal law.
My hon. Friend makes a good point. I hope to explore the difference between civil and criminal law later in my remarks. An important issue has been raised by the Opposition when they say, "We are only aligning criminal law with civil law." In fact, they are not. Weird and strange anomalies are created. The differences between the criminal and civil law systems must be explained if we are to ensure that the House has all the facts and arguments before it before deciding whether to give the Bill a Second Reading.
The proposed new subsection reads:
"Where a person uses force".
Will my hon. Friend enlighten us about what would happen if someone set a dog upon a supposed intruder? The dog would be using the force, but the person would have some control over the dog—or would they be held not to have that control?
My hon. Friend raises an interesting series of questions by his intervention. In general terms, I think that the dog would be seen as a weapon, if it had been deliberately set on the burglar by the owner. There would then be the argument about whether the dog was, for example, a chihuahua, or a bull mastiff or a pitbull terrier. The answer might be different in those cases.
The position becomes even more complicated. Let us suppose that the dog of its own volition decides to sink its teeth into the burglar's trousers, without it being set upon the burglar by the owner who uses the force. There is nothing in the Bill that amends any of the laws relating to dangerous dogs legislation, which was controversial before I became a Member of this place. The Animals Act 1971 applies to the issue of whether the dog was acting lawfully or unlawfully. My hon. Friend has raised some interesting questions, which go way beyond the Bill that is before us.
If no living creature is involved but the person has set an automatic defence, I think that my hon. Friend would agree that that is an indirect use of force by the person who set the mechanism in place. If that person had reason to fear serious assault—let us say by terrorists—but the mechanism went off to injure someone who had committed a quite harmless trespass, does my hon. Friend think that under the wording of the Bill it could be claimed that although the setting off of the mechanism was clearly grossly disproportionate, given that the intruder had been blown up, for example, it could not be held reasonably to be a parallel? The person would not have been there at the time. An automatic mechanism had been set for a real threat, although it had gone off for some minor occurrence.
My hon. Friend makes an interesting point. The law in relation to setting a trap, as it stands, is clear. We should not do it. That is not to say that we cannot take steps physically to harden a property against intruders. Any physical hardening, in so far as it may cause injury, should be apparent. It should not be a trap. The law goes the other way, perhaps, in that it encourages people to have window locks, burglar alarms and so forth. A burglar alarm is a trap but there were the man-traps that we see in Victorian films, catching the poacher. Such traps clearly would be a trap and would be illegal. If I am wrong about that, what happens where the man-trap is in the grounds of a property rather than inside the building? We end up with a completely different set of circumstances.
If the man-trap is in the grounds of the castle, it would be caught by the existing law of reasonable force and clearly would not be protected. If it is inside the building, I suspect that it would probably be protected because the response is a trap and it is not for the purposes of the Bill. An interesting question has been raised and it is one that may have to be explored in more detail in Committee, should the Bill go that far.
My hon. Friend has raised some further thoughts in my mind. What if someone had set a device designed to give a mild electric shock to an intruder at a level where no harm would be expected but the intruder had a heart condition and the shock was sufficient to trigger a heart attack? Under the vigilante Bill as it stands such a system would not be disproportionate. What if something designed to stop an intruder accessing the roof was mounted on the outside of a building but fell into the grounds or the street? It would have gone from being something within a building to something outside a building. Where would that stand under the vigilante Bill?
My hon. Friend makes an interesting point. Properties are often protected by barbed wire, razor wire or the new material called cactus, which is very effective. There is also the old-fashioned use of broken bottles stuck in concrete on top of a wall. Those are not traps because they are obvious. There may be civil remedies if someone is injured by them, but they are certainly not traps.
The hon. Gentleman says that they are illegal. That may be the case, but the issue that we are starting to address is what we mean by "trespasser". I shall go on to consider that because it is important that I make some progress.
As a matter of interest, hon. Members were given counselling by security force personnel because of terrorist threats to Members. We were warned that we had to be very careful about how we protected our homes. I fear that the concept that your home is your castle is not true.
I am grateful to the hon. Gentleman. In my property, I have employed security measures such as window locks, deadlocks and burglar alarms that are unlikely to harm anyone. That is the best way to go, as I hope to explain later.
The intervention of Mr. Gale is useful, because it appears that the current position is that the use of barbed wire or glass is proportionate if a lad kicks his ball over a wall and is injured. If that is the case, will my hon. Friend comment on what might happen to youngsters going over a wall to get their ball back if a householder was allowed to use disproportionate and excessive means to protect his or her property?
The child might be injured but the householder would not be protected by the Bill because the ball would presumably be in the yard or garden. The householder might not draw the distinction that a QC would between the house itself and its immediate surroundings. People might think that they are protected by the Bill in using disproportionate force in dealing with a lad trespassing while chasing a ball, but find themselves in the dock because the Bill would not protect them. That is the sort of problem that arises when there is a duplicity of standards in respect of the law of self-defence.
Let us consider what we mean by "entered as a trespasser", which is the phrase used in the third line of what would become new subsection (1A) of the Criminal Law Act 1967. I happen to have with me a copy of the eighth edition of Professor Sir John Smith's "Law of Theft", which, if we follow its advice, produces some interesting anomalies in respect of the Bill.
Let us first consider the definition of "enters". The common law rule was that the insertion of any part of the body, however small, was a sufficient entry. If a burglar pushed through a window pane and the forepart of his finger was observed to be inside the building, that was enough. The Theft Act gives no express guidance and it seems to have been assumed in Parliament that the common law rules apply. Under common law, if an instrument is inserted into the building for the purpose of committing the offence, it counts as an entry, even though no part of the body was introduced into the building. Someone who just pokes a finger through the window could be met by disproportionate force when the mad householder with an axe comes along and chops it off. That is disproportionate for sure, but is it excessive? We do not know, but I believe that the House does not really expect or wish to see that happening.
We know that the common law still applies, because Professor Smith, one of this country's leading experts in criminal law, explains it in his book. He goes through a whole series of anomalies that can occur, but he goes on to say at the end of the section that deals with "peculiar effects" that the "best course" is probably to assume "the continued existence" of the "common law rules". He provides some very strange examples. One of the most interesting is the case of transvestites who hooked dresses worth £600 through the letter boxes of shops and pleaded guilty to burglary. Well, if that is committing a burglary and if the essence of burglary is trespass, I dread to think what might have happened if the householder had got hold of them while they were hooking things through his letter box.
Now that we have looked into the question of entering, we have to understand exactly what is meant by trespassing. A trespasser is a legal concept that is rooted in the civil law rather than the criminal law. The basic rule in civil law is that entry with the consent of the occupier cannot be trespass, but obviously the opposite is the case. "Mistake" by the person who enters the property is no defence if, for example, the person accused of being a trespasser and therefore at risk under the Bill were to enter the house next door, mistaking it for his own, on a very dark night. That would still be regarded as an intentional entry in trespass law, even if the person doing the entering had made an honest and reasonable mistake. To revert to my earlier example of the neighbour returning the lawnmower, one wonders whether the full force of excessive force is appropriate in those circumstances.
I can provide an even better example than that. Let us suppose that the person allegedly committing the trespass were separated from his wife and he wrongly supposed that he had the right to enter the matrimonial home of which he was still technically the owner-occupier as he was still paying towards the cost of the home. He thought that he had the right to go in, even though he may not have had that right in law, and enters with the intent of removing some of the belongings. In fact, even in law, he may be a trespasser, but he is not actually a burglar because he can rely on some of the defences that apply in the law of trespass. My concern in that case is that he is potentially a trespasser for the purposes of the Bill, but he is not a burglar for the purposes of the Theft Act 1968. He could be beaten up by whoever happens to be inside the property—by his wife's new partner, for example—and if he were subjected to excessive force, it would be covered by the Bill even though in law he was not really a burglar at all.
Is there not a problem with the words "entered as a trespasser"? Earlier, an Opposition Member, who is no longer in his place, referred to an example, in which "but for the law" he would have been a hero for retaliating against someone who came into his shop to commit an act of theft. As my hon. Friend knows, the reality is that if someone commits a criminal act on a property, the licence is revoked and he then becomes a trespasser. If someone enters a shop as an innocent purchaser of an item without the intention of breaking the law, but subsequently decides to commit a criminal act thereby becoming a trespasser, he or she did not enter the shop or property as a trespasser, which is the threshold required for the provisions to apply. Is not that the problem?
My hon. Friend makes a very interesting point, which relates to the Theft Act. If someone decides to commit a theft at a particular stage, they become a trespasser from the moment they entered the building and could theoretically face the charge of burglary; in practice, they are usually charged with theft. Technically, if they were to jump over the counter and raid the till, I suspect that it would be classed as burglary.
Let us consider the example given earlier of an estranged husband returning to the matrimonial home, which he still half owns. He might not be entering as a trespasser and may have no intention of committing a burglary of any kind. None the less, in an altercation he might end up offering violence against his wife, and at that point it might be necessary for her to offer violence in return. Of course, this Bill would not protect her in any sense.
To be fair, I am not sure that that is accurate. In that situation, the husband would probably be committing the offence of burglary anyway, because burglary is not just thieving: rape and grievous bodily harm, for example, can constitute burglary. People often think that burglary is just stealing; it is not. It can include other offences linked to breaking into a property. The problem is that the Bill refers not to burglary but simply to people trespassing on buildings. The definitions of trespass in civil law and in criminal law are different, as are the definitions of the motive of the person entering the building. The situation is very confusing indeed, and part of the problem is that the Bill is unclear on the circumstances to which it would apply.
As has been demonstrated in a number of different examples given today, under the Bill, the person defending themselves could be completely unclear as to which test applies: the reasonable force test or the excessive, disproportionate force test. They would not know where they stood, and the creation of such confusion would put them in a very difficult position. There is a very real risk that they might naturally assume that they could use disproportionate force in circumstances where they in fact could not. The consequence could be entirely the opposite of that intended. People could end up appearing in the dock to defend themselves who currently would not need to, because as it stands they would be using reasonable, rather than disproportionate, force. If someone used the latter in circumstances where they were entitled to use only the former, they would rightly be charged with a criminal offence. That could happen under the Bill, simply because it has led them up the garden path.
Under this vigilante Bill, burglars could decide to stop committing burglaries and start mugging instead, because the prize is the same but the chances of being beaten up are reduced. In other words, it could push burglars out into the parks to mug people. Moreover, under this very woolly vigilante Bill, somebody threatened with being mugged in the park might rush to the nearest house and hammer on the door to get in, only for the person behind the door to think, "Somebody is trespassing on my premises; I can now use disproportionate force against them." What are my hon. Friend's thoughts on that?
At the beginning of his excellent speech, my hon. Friend said that the Bill's title, which refers to the "Protection of Property", gave the game away. Will he confirm, in the light of the intervention from my hon. Friend Mr. Flello, that under this Bill those who live in gated developments or castles, and who drive everywhere, would enjoy better protection than those of us who walk or commute, and who live in communities? Nor, as my hon. Friend Chris Bryant said, would the Bill protect those living in rural areas.
My hon. Friend is right: the Bill is disproportionate and unfair.
In an intervention, my hon. Friend the Member for Stoke-on-Trent, South mentioned the displacement of crime from burglary to street robbery. Well, that may happen anyway if we are able to bear down on the incidence of burglary; indeed, there has been a rise in street crime as a consequence of the fact that burglary has become a more difficult crime to commit. The problem with the Bill is that it may drive people further into that type of criminal behaviour.
I mentioned previously the problem of displacement from properties where the householder may be thought to have weapons to defend himself to the home of a little old lady who could not defend herself. The Bill would inevitably lead to such displacement, and my hon. Friend is right to say that there will also be displacement from burglary to street robbery, perhaps as an alternative way of funding a drug habit. Obviously, we have to deal with street crime, too, but the Bill does not provide the same protection for victims of street robbery as it does for the lord in his castle.
We all admire my hon. Friend's ability to retain the thread of his remarks despite our interventions. I want to take him back to an intervention that he did not fully deal with: my hon. Friend Mr. Khan pointed out that under the Bill the situation would be different for someone who entered as a trespasser and for an opportunist who went into a shop and then decided to commit a burglary. A householder would not necessarily know which of those two things had occurred, so the exemption in subsection (1A)(b)—
"this was or ought to have been apparent to the person"— relates only to the degree of force. If a householder came across someone who had appeared in the building unlawfully but did not know whether they originally intended to trespass, the householder would not know whether they could use disproportionate force.
That is one of the problems. My hon. Friend switched from a shop owner to a householder halfway through his analogy, but I think it would be interesting if we stayed with the shop owner. If somebody enters a shop and tries to steal goods or raid the till, they retrospectively become a trespasser for the purposes of the Theft Act, so technically would fall to be dealt with under the Bill. The problem is that the shop owner may not know that. I suspect that most shop owners do not know the law of trespass well enough to draw that distinction. Yet again, we would be in the difficult position where different rules applied in different circumstances, with a complete lack of clarity for the victim about the extent to which they are entitled to defend themselves—whether the high test in the Bill or the common-sense test in the existing law of self-defence.
A further problem with trespass relates to invitees—for example, friends who visit the house, other tenants in a house of multiple occupation, squatters, a neighbour borrowing a lawnmower or a neighbour in a dispute. They might not enter a particular place as trespassers but they could all become trespassers for the reasons that I have outlined. That creates a serious situation, because most people would not know where the line was drawn, or that the status of someone who had entered the building could change. The arguments that we have been having during the debate about trespass show that the law of trespass is not as fully understood as it should be even by those who might have read "Archbold's Criminal Pleadings" or "Clerk and Lindsell on Torts"—
Even most bookshops would not have those books unless they were law bookshops, and there are not many of those about. Of course, whether the shop staff had actually read the books is another question altogether.
The law of trespass gives rise to serious problems, especially in cases where people gain entry by deception. We have all heard about burglary by artifice—the dodgy gas or electricity man whose object is not to read the meter but to rob the teapot. In those circumstances, even if the dodgy gas man was invited in because the householder did not think that he was a trespasser, in law he would be. To pick up the second point made by my hon. Friend the Member for Broxtowe when he switched his analogy, the householder would, under the Bill, be entitled to use disproportionate force to defend themselves but would probably be unaware of that fact. The Bill would create misapprehension about what people could do.
My hon. Friend might recall that Mr. Letwin invited a gentleman into his home at 2 o'clock one morning because the man knocked on the door and said that he needed to use the toilet. Even such an esteemed figure as the right hon. Gentleman might not have fully understood the nature of trespass. If the Bill came into law, he thus might not fully understand the precise degree of force that he could use.
My hon. Friend is right. If we are talking about the countryside, there is an interesting point that people who have limited authority to do one thing and may thus enter a place legally can become trespassers if they do something outside the extent of that authority. An example cited under the Game Act 1831 is of someone who had permission to go on to land to hunt for rabbits, but then started hunting hares. It might be splitting hairs to raise the case, but such evidence of trespass under the Game Act 1831 would presumably be evidence of trespass under the Bill if the animals in question were inside a building—we would presumably be considering battery-farmed rabbits or hares in such circumstances.
My hon. Friend talks about the householder being unclear about whether someone is a trespasser. One of the arguments for the Bill that is being pressed by members of Her Majesty's official Opposition is the fact that it would reduce the number of burglaries committed, because possible burglars would be scared off and deterred by the draconian powers open to a householder. However, would not a possible burglar also be confused about the position? Any chance of the Bill deterring burglars would be limited by their confusion about the powers of the householder.
I am not entirely sure that I agree with my hon. Friend's argument. The Opposition say that a burglar would assume the worst in such circumstances. If that is the case, it might be an argument in support of the Bill. However, if my hon. Friend is right—in this context I suspect that he is—it would not have that deterrent effect at all, because burglars would assume, as criminals always do, that they would not get caught and that the lesser rules would apply. They are not very intelligent people, which explains why they undertake such business, although I suppose that we can think of the famous jewel thieves whom we sometimes see in fiction.
Is not the other problem with the concept of trespass the fact that the tort of trespass originally related to land—and still primarily does in law—rather than to buildings? I know that the concept of trespass in a building comes from the Theft Act 1968, but the situation is none the less confusing.
My hon. Friend makes an interesting point. If ordinary people were to read the Bill, they would think that "trespass" applied to anywhere on their property. They might not read the small print that refers to a
"building or part of building".
When we examine the definition of a building, as I hope that we eventually will, the situation gets even more difficult and confusing.
Let us continue to examine proposed new subsection (1A) to section 3 of the Criminal Law Act 1967 by considering what is meant by the
"defence of persons or property".
One might think that that is a relatively uncontroversial aspect of the Bill that raises no significant problems, but that is not the case. Property does not have to be either lawfully owned or legal property in its own right.
Let us suppose that the legal owner of a TV or video discovered that it had been stolen by another person in their tower block. If the owner decided to go and repatriate it, they might think that they were entitled to use disproportionate force to recover it, because they would be acting inside a building to prevent crime. However, the burglar in his flat could also use disproportionate force to defend the stolen property from its lawful owner and fight back, so the situation would ratchet up. Each person is legally entitled to use disproportionate force against the other. That is surely not the Bill's intention, but it is the inevitable and logical consequence of the way in which it is drafted. The lawful owner of the property is preventing crime while operating inside a building, and the burglar, who is also inside the building, is defending property, even though it is not his. According to the Bill, each can use disproportionate force against the other. Who knows where it will end, except with two corpses on the carpet? Surely, that is not the Bill's intention.
Most of us are not legal experts, unlike my hon. Friend. Even so, we have been able to identify many ambiguities and problems in the Bill. In the current state of affairs, the position is intuitively clear when a case comes to court. Would it therefore not be a retrograde step to create a haze of legal ambiguities? The ensuing lawyers festival would make today's debate look like peanuts.