– in the House of Lords at 2:58 pm on 9th February 2005.
asked Her Majesty's Government:
Whether the guidelines issued by the Crown Prosecution Service and the Association of Chief Police Officers on the use of lethal force against intruders adequately address public concern.
My Lords, yes. On
My Lords, I have two questions to put to the noble and learned Lord the Attorney-General. First, does he agree that the public want to know not only the degree of force which legitimately can be used against an intruder, but also what are the consequences of exceeding the use of reasonable force? Secondly, as the law stands the position is stark. If death results, the offence is murder and a sentence of imprisonment follows automatically. When will the Government implement the availability of the intermediate offence of manslaughter, as recommended by the Appellate Committee of this House in the case of the solder Clegg in Ireland in 1996, approving the recommendation of the Criminal Law Revision Committee, which was followed by the Law Commission and the Select Committee of this House on murder and life imprisonment, of which I was privileged to be a member?
My Lords, in answer to the noble and learned Lord's first question, yes, but I do not think there is any doubt that the public do know what the consequences are. That is what the debate has been about. As to his second question, I have sympathy with what he says. He will know that recently in the context of manslaughter by reason of provocation, the Law Commission was asked to look at the circumstances in which manslaughter may be the appropriate charge and drew attention to the issue to which the noble and learned Lord referred of what the correct charge should be where there is a case of self-defence but the violence is excessive. That needs to be looked at further.
My Lords, can the Attorney-General confirm that in the past 15 years there have been only 11 prosecutions of householders who used force against burglars, and that of that number only five were convicted? Has he seen the comments of the Director of Public Prosecutions that there have been cases where householders have shot dead or fatally stabbed burglars, or hit them over the head with a baseball bat or metal bar, and have not been prosecuted?
My Lords, in the second part of his question, my noble friend is right. The Director of Public Prosecutions has indicated that there have been cases where householders have killed the intruder and there has not been a prosecution. As to the first part of his question, again my noble friend is right. The Crown Prosecution Service carried out an informal—and therefore not necessarily exhaustive—survey and found that over the past 15 years there were only 11 cases where people were prosecuted for attacking intruders in houses, commercial premises or private land. In fact, only seven of those appear to have resulted from domestic household burglaries.
My Lords, while accepting that there are distinctions between the criminal law and the civil law, does not the noble and learned Lord the Attorney-General accept that there is a certain illogicality in that the test that is used in civil law to judge whether a burglar can sue a householder rests upon whether the householder has used grossly disproportionate force against the burglar, whereas the test in criminal law of whether a householder has acted properly rests upon reasonable force? Can the noble and learned Lord explain why there should be two distinct tests and whether he accepts that that is illogical?
My Lords, I do not accept that it is illogical. The expression "reasonable in the circumstances" is used throughout the criminal law as the test for deciding culpability where violence is used against another person. It is entirely appropriate that it should remain so. But it is not right, the Government believe—and it has been accepted—that intruders should be able to claim damages under the civil law for injuries which they have brought upon themselves by their own illegal behaviour, except in the most exceptional circumstances.
My Lords, is the noble and learned Lord the Attorney-General aware that in Oklahoma a householder is able to kill or maim an intruder whether or not there is a threat? It is called the "make my day" law. Do we want that in this country?
My Lords, the answer is "no" to both parts of the noble Lord's question.
My Lords, my noble friend makes a very important point. Of course the law is determined by the courts, by the judges, and applied by the juries. But the guidance which has been produced setting out in plain language householders' rights and the level of force that they can use is, in the Government's view, extremely helpful in reassuring the public. It also indicates the way in which the police and the prosecution service will act. That is also important in giving reassurance that people can protect themselves, their families and their homes against intruders by using reasonable force. The Government very strongly support that fact.
My Lords, returning to the question asked by my noble and learned friend Lord Ackner, if the only available offence in cases where death has resulted from the use of excessive force is murder, will that not discourage juries from convicting in cases where there ought to have been a conviction?
My Lords, I am sure that the noble and learned Lord is right. That is why I said that I have sympathy with the point made by the noble and learned Lord, Lord Ackner. The issue needs to be further looked at. At the time of the debate about provocation it was indicated that the Home Office believed—and I agree entirely with this—that there is a need for a further review of this area.
My Lords, is the noble and learned Lord aware that the Government have been looking at this issue since Clegg? Law Commissions can report and Select Committees, on which I serve, can report; the problem is that the Government are simply not prepared to listen.
My Lords, this is a difficult, sensitive and delicate area. One is dealing with cases of death caused by unlawful violence, whatever that may be. I have already indicated that I have some sympathy with the points made by noble and noble and learned Lords. I hope that will give the noble Lord, Lord Campbell, some comfort.
My Lords, the noble and learned Lord the Attorney-General referred to provocation as a possible defence enabling manslaughter to be used. But provocation has nothing to do with the point that I raised. It is purely the use of excessive force without any question of provocation at all.
My Lords, that is absolutely right. I said that the Government looked at the issue of provocation which creates different problems. For instance, people find it offensive that someone is acquitted of murder and convicted only of manslaughter on the grounds of provocation when that appears to mean that the victim brought the death upon herself—and it often is "herself"—when what is actually at issue, for example, is sexual jealousy or concern that a wife is leaving. It was in that context that the question of the proper charge for excessive violence in self-defence arose. I was not for a moment equating the two issues. It is simply that they both arise out of the present law of manslaughter and murder.