Criminal Justice and Immigration Bill

– in the House of Lords at 8:53 pm on 3rd March 2008.

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Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament 9:07 pm, 3rd March 2008

moved Amendment No. 137ZA:

After Clause 127, insert the following new Clause—

"Self-defence etc.

(1) The Criminal Law Act 1967 (c. 58) is amended as follows.

(2) In section 3 (use of force in making arrest, etc.), after subsection (1), insert—

"(1A) Where a person uses force in the prevention of crime, or in the defence of persons or property, on another who is in any building or part of a building having entered as a trespasser or is attempting so to enter, that person shall not be guilty of any offence in respect of the use of that force unless—

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

(1B) No prosecution shall be brought against a person subject to subsection (1A) without the leave of the Attorney General.

(1C) In this section "building or part of a building" shall have the same meaning as in section 9 of the Theft Act 1968 (c. 60) (burglary).""

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

Amendment No. 137ZA is concerned with self-defence. In another place, a number of Conservative Members of Parliament, particularly the Members of Parliament for Vale of York, for Newark and for North West Cambridgeshire, have introduced proposals for a change in the law on self-defence. These have been prompted by a number of people who have suffered real distress as a result of lengthy investigations by the police into their reactions to burglaries and other incidents in their home, which in most cases ultimately ended in a failure to prosecute.

In a speech at the Labour Party conference, the right honourable Jack Straw suggested that the time had come to look again at the law on self-defence with a view to changing it in the interests of the householder. My honourable friend Mr Nick Herbert, the shadow Secretary of State for Justice in another place, has made it quite clear that it is important that the law sends out,

"a clear and unambiguous signal to the owners of homes ... that the law will be on their side".—[Hansard, Commons, 9/1/08; col. 351.]

What has the result been of the Government's reconsideration of the law? If one looks at the Bill, one is compelled to reach the conclusion that the Government have simply restated the law as it has always been. That is confirmed in a letter written on 29 January to the noble Lord, Lord Thomas of Gresford, by the noble Lord, Lord Hunt. The noble Lord wrote:

"You suggested that the Government's proposals appeared to be changing the test applied to the degree of force that a person is allowed to use in self defence ... I am happy to confirm that this is not the case. As the law stands, a defendant's actions are to be judged according to the circumstances as he viewed them ... The Bill reflects this position. Clause 128(3) makes it clear that a person using force is to be judged on the basis of the circumstances as he believed them to be ... Clause 128(8) makes it clear that if a person is labouring under a mistaken view of the circumstances (even if that is unreasonable), he is still to be judged by reference to the circumstances as he believed them to be".

The noble Lord, Lord Hunt, observes that,

"this reflects the current common law position".

I take it that this is what is often described as the subjective part of the test.

The noble Lord, Lord Hunt, goes on:

"Clause 128(8) does not however extend any benefit to a person who believes he is using a reasonable degree of force (in the circumstances as he saw them) but where the degree of force was objectively excessive".

This is the objective part of the test.

I know that there is a degree of controversy among Members of the Committee on whether what the Government have put in the Bill exactly reflects the law, but it is plain that the noble Lord, Lord Hunt, believes that it is simply a mirror image of existing law. I must say that my inclination is to agree with him. If that is the case, the Government, despite the remarks of the right honourable Mr Straw at the conference last year, on reflection believe that the law does not need any alteration. That is not the view of the Opposition, which is why this amendment has been tabled.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

Does the noble Lord agree that we would not have this in the Bill at all were it not for what the Lord Chancellor said at the Labour Party conference and the fact that he has clearly resiled from the position he was trying to persuade the delegates—the brothers—that they should take?

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

The noble Lord has made a very good opposition point for me, for which I am very grateful because I have been saved about 15 seconds of my speech which I would otherwise have delivered. We believe, for the reasons that I explained earlier and the distress that this matter has caused so many people, that the objective part of the test should displace the word "reasonable" with the words "grossly disproportionate".

It was suggested by the right honourable Mr Straw that this might conflict with the human rights convention. Indeed, I believe that some support for this view was given by the Joint Committee on Human Rights. I think that that assertion is certainly not proven and, in my view, very difficult to substantiate. There is inevitably an element of disproportionality in the test already because of the subjective ingredient. Moreover, the civil test a criminal who has been injured in some way or other by the householder has to meet to succeed in an action against the householder is precisely that of gross disproportionality which the Government proposed to adopt in the 2003 criminal justice Bill. I accept that that is a civil and not a criminal test, so strictly speaking it does not contravene the European convention; but nevertheless it is a test that the Government have already deployed.

If there is to be a real change in the law upon which the householder can rely, in our view the way that we have cast this amendment in terms of gross disproportionality meets exactly what Mr Straw said he wanted in October 2007, and from which, as the noble Lord, Lord Thomas, has rightly pointed out, he has resiled. I beg to move.

Photo of Lord Neill of Bladen Lord Neill of Bladen Crossbench 9:15 pm, 3rd March 2008

I welcome and support this amendment. Members of the Committee will be pleased to hear that it enables me to make the central point that I was going to make later on my own amendment, Amendment No. 138A. I welcome this amendment because of the language which would go into the 1967 Act and become a new subsection (1A) of Section 3, that language being,

"the degree of force used was grossly disproportionate, and ... was, or ought to have been, apparent to the person using such force".

That is in harmony with the language to be found in Clause 128(5). That language is a direct quotation out of the judgment of Lord Morris in Palmer in 1971, AC 814. In effect, we look into the mind of the accused: what did he think he was doing? Did he think he was doing that which was necessary to defend himself? That is a subjective test. It is supported in a leading textbook on criminal law, Archbold, at paragraph 19/41 of the 2008 edition. In my respectful submission, that is to be preferred to the objective test.

I shall give a classic statement of the objective test taken from Card, Cross & Jones Criminal Law, the 17th edition published in 2006 at paragraph 19.8. There it is put this way:

"Except that it is based on the facts as the defendant believed them to be, the test of whether reasonable force has been used in the prevention of crime, self-defence etc is an objective one. In other words, the question is whether, on the facts as the defendant believed them to be, a reasonable person would regard the force used as reasonable in self-defence etc".

Having taken the facts as the defendant believed them to be, in answering the question, "Did he use excessive force?", we can look at what the reasonable man would think about it. That is quite contrary to the Lord Morris test found in Clause 128(5).

The objective test, again, you find in the Martin case, where the noble and learned Lord, Lord Woolf, the then Lord Chief Justice in the Court of Appeal, said at paragraph 7 of the judgment of the court:

"As to the second issue, as to what is a reasonable amount of force, obviously opinions can differ. It cannot be left to a defendant to decide what force it is reasonable to use because this would mean that even if a defendant used disproportionate force but he believed he was acting reasonably he would not be guilty of any offence".

On the Palmer test in subsection (5), you look to see what the person reasonably thought that he ought to do in the critical situation in which he found himself. I remind the Committee of the case of Mr Singh, which we all read about in the newspapers last week. He was getting out of his office, going home with the day's takings when an ex-criminal, a man with a record—Mr Singh did not know that, of course—smashed the window of his car and tried to grab the bag with the takings in it. The man who attacked him was armed with a knife and Mr Singh defended himself. He was cut in his head; he had a knife wound in his head and other knife wounds on his body. But he kept fighting and the matter ended up with the attacker reeling away from the car with his own knife stuck into his chest, and he subsequently died.

That is a classic example of a man in the agony of the moment doing everything he can do to protect himself and there is no question that he is an innocent man. In the circumstances, he was arrested and questions of a murder charge, manslaughter charge or a charge of assault occasioning grievous bodily harm were all investigated. Fortunately there is a happy ending: later in the week he was cleared of all suspicion and the police declared that he was a free man. That is an example of looking at how someone behaves in what I call the agony of the moment.

This approach is supported in the European Court of Human Rights. I refer to the case of Andronicou v. Cyprus, decided in 1998, 25 European Court Reports, page 491. An armed man was holding a woman hostage and the police in Cyprus had to deal with the situation. Mr Andronicou had a gun and was shooting at the police; they returned the fire and, sadly, both Andronicou and the girl were killed. The court said in interesting language:

"The Court cannot with detached reflection substitute its own assessment of the situation for that of the officers who were required to react in the heat of the moment in what was for them a unique and unprecedented operation to save life. The officers were entitled to open fire for this purpose and to take all measures which they honestly and reasonably believed were necessary to eliminate any risk either to the young woman's life or to their own lives".

That is a Palmer test being applied by the European Court of Human Rights, which is quite a good guide for us.

I welcome the amendment because it squarely brings out that focus on the mind of the defendant and rejects what I call the Card, Cross and Jones test of extreme objectivity where, with detached reflection, the jury is supposed to substitute its own opinion of what the emergency called for.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

I do not believe it was ever necessary for there to be such a provision as Clause 128. If that clause had managed to draw clear boundaries where boundaries not so clear now exist, it would have been justified. If it changed the law, particularly in a progressive direction in favour of the defendant, there would be justification. In my respectful submission, the clause does not achieve either of those purposes.

My first objection is that the whole slant of what is suggested in the clause is wrong. It suggests that self-defence is a defence, but it is not; self-defence is a situation that the prosecution must expunge to the point where a jury is satisfied that it has proven that position beyond all reasonable doubt. To refer to it as a defence is very wrong. Rather than put my own arguments, I shall quote the words of Lord Justice Wynne in a decision of the Court of Appeal in Wheeler in 1967 that set out the position much more succinctly than I ever could. He said:

"wherever there has been a killing or the infliction of violence not proving fatal in circumstances in which the accused puts forward a justification such as self-defence it is quite essential that the jury should understand that the issue is not properly to be regarded as a defence, and where the judge does slip into the error of referring to it as a defence it is particularly important that he should use language that suffices to make it clear to the jury that it is not a defence in respect of which any onus rests upon the accused but a matter which the prosecution must disprove as an essential part of their case before a verdict of guilty is justified".

Those are well measured, wise words that, to my mind, completely undermine the whole structure of Clause 128. The intentions behind that clause may well have been good and honourable; they may have had something to do with the effect of the heady wine of the hustings on Mr Straw in the autumn of last year. Be that as it may, the clause tends to give a slant with regard to self-defence that is most unfortunate so far as a jury is concerned.

The second objection concerns the way in which the so-called defence is set out. It is true that in subsection (5)(a) there is a direct quotation from the words of Lord Morris of Barth-y-Gest in Palmer in 1971:

"a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action".

Those words are essentially taken from the words of Mr Justice Cardoza some 30 or 40 years earlier, when he said something like this: "You cannot expect a defendant in those circumstances"—he was speaking of the circumstances of self-defence—"to weigh in the fine scales of a jeweller's balance exactly the amount of force to use". Therefore, in so far as that expresses the necessity of a jury being sure that it is not marginally but fundamentally that the use of force exceeded, the first test, the objective test of unreasonableness, is satisfied.

The second part of the subsection is rather a précis of what Lord Morris said. Even there, though, the clause is less than just to the position of a defendant. Subsection (5)(b) reads:

"that evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose".

It says "strong evidence". Lord Morris's words were "most potent evidence", which to my mind is one shade beyond that.

The amendment seems to avoid my first objection in that it does not refer to self-defence as a defence, and there is very little to criticise in it. However, proposed new Section 3(1A)(b) of the Criminal Justice Act 1967, which the amendment would introduce, states that,

"this was, or ought to have been, apparent to the person using such force".

That is to bring back by the tail an objective consideration.

I would put the law of self-defence, or self-protection as I prefer it to be called, in this way. First, the prosecution has to show that the force that was used was quite disproportionate and unreasonable by a long chalk—there is no question of small margins—according to an objective test. Secondly, according to a subjective test as seen through the eyes of the defendant, it must show that that defendant knew and appreciated that he or she was using force that was excessive; in other words, they did not have an honest, genuine belief that the force used was reasonable. If the defendant had that belief, even though it was unreasonable, they should still be absolved from guilt. So there are two clear tests: first, the test of reasonableness from an objective point of view, and, secondly, the test of excessive force from a subjective point of view.

These are not just my ideas; they are found in two leading cases in this matter. The first was that of Gladstone Williams from 1987, a case in the Court of Appeal which was presided over by then Lord Chief Justice, Lord Lane. The second case, from the following year, is Beckford, a Privy Council case. Both cases followed a very strong recommendation that was current at the time on the part of the Criminal Law Revision Committee.

So the statement in Palmer in 1991 classically enunciated the law as it then stood. However, since Palmer, there has been a development along the lines suggested by Lord Morris, but not spelt out by him. It is a subjective test that looks at the situation through the eyes of the defendant.

The clause obfuscates the situation for the reason that I have adumbrated, and it puts the position less than fairly in so far as a defendant is concerned. The amendment of the noble Lord, Lord Kingsland, also has the effect of bringing a tinge of objectivity to what is supposed to be the second limb; namely, the subjective test.

Photo of Lord Dear Lord Dear Crossbench 9:30 pm, 3rd March 2008

In rising to support the amendment of the noble Lord, Lord Kingsland, I find myself following the noble Lord, Lord Elystan-Morgan, who has very adequately covered what I was going to cover at much less length and with much less erudition; that is, Palmer, Wheeler and the subjective test. I shall not repeat that, save to associate myself with all his remarks.

I shall say, fairly briefly, what I said when we debated the previous amendment before the break; that is, what impact the attitude of the prosecuting authorities has on the proposed defendant. I perhaps do not need to remind noble Lords that we are dealing with something of great public concern. We have seen a number of high-profile cases, going back to the days of Martin, the Norfolk case, which was not a good case in point, and, more recently, the case of Singh, which was. We have been talking about public concern about house-breaking and burglary, which translates into very real fear. The clarity that the law requires has been very adequately set out in the amendment.

I shall focus my attention on what the prospective defendant has to face—not only the shock of the event itself, finding somebody in a darkened room and a darkened place and what follows, but then the intervention of the lawful authorities, the police, who will undoubtedly question him and if he is lucky bail him. There is then the press speculation and the embarrassment, doubt, fear and deep worry that follow—and then, one hopes, the CPS disposes of the case. But it could well be, as it has been in the past, a different and much more elongated course of events. An arrest would inevitably be followed by being fingerprinted and photographed and a DNA test being taken, the person being charged and the case being referred to the CPS—and almost certainly a long wait before, if the person is lucky, no action is taken. The clarity being proposed in the amendment would do a great deal to focus the minds of the police and CPS on the essential requirements of the subjective test and would prevent that sort of ordeal for the proposed defendant.

I cast my mind back to my own house—noble Lords may be able to imagine a big old rambling house in the Cotswolds and an old stableyard that no longer has horses in it but which is a garage containing rather expensive gardening equipment, and so on. If I went into the yard—not the house—in the dark and found somebody there, the inevitable fight could happen. I wonder whether the amendment is not too tightly drawn in that regard, when it refers to a,

"building or part of a building".

I do not know whether this is the right time to interpose the suggestion that the darkened yard or garden might also fall within this provision—the curtilage is the word that comes to mind.

I ally myself entirely with what has been said about Palmer, Whelan et al and I support the amendment.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

I, too, support the amendment. I may particularly rely on the reasons given by the noble Lord, Lord Neill of Bladen, who set out the law. The noble Lord, Lord Dear, referred to members of the public—and this is a matter of enormous concern for the public, as he said. The amendment says that a,

"person shall not be guilty of any offence in respect of the use of that force unless ... the degree of force used was grossly disproportionate".

I give the example of my own daughter, who was in her house in north London with her nine year-old daughter when two men broke the front door down and went up the stairs in the middle of the night. She came down the stairs and yelled at them and, fortunately, they turned tail and left the house. Neither of them appeared to be armed, but how was she to know that? In the agony of the moment she might have picked up a piece of wood, a cricket bat or a poker, and hit one of them with the poker and killed him. Let us say that after that it was found that he had no weapon—but there were two men involved—the question of reasonableness in that case may be one thing but the reference to "grossly disproportionate" seems much closer to what a member of the public might expect this Chamber to say was the right approach. For those reasons, I support the amendment.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

I have my name down to Amendments Nos. 138 and 139 to 142. If the Government are attempting to repeat the present law, they have got it wrong.

On the amendment that we are debating, I am concerned about the use of the word "grossly". I do not know quite what it means. It is an attempt to deal with the Martin situation—the noble Lord, Lord Kingsland, says no, it is not, but it seems to me that that is what inspired it. I wonder whether "grossly disproportionate" means shooting somebody in the back as he is running away. What is meant by that phrase? Is it just what the jury thinks is grossly disproportionate, or what? The Government use "disproportionate" in Clause 128(4), so I cannot quarrel with that, but "grossly disproportionate" I find difficult.

Photo of Lord Davidson of Glen Clova Lord Davidson of Glen Clova Advocate General for Scotland, Law Officers' Department, The Advocate-General for Scotland

It is hoped that a clear and unambiguous signal is provided by Clause 128, and, in that way, that the suggestion in previous discussions that that would be undertaken by the Government has been done. I immediately accept that this is a difficult issue and it has rightly galvanised a high level of interesting discussion, but I will resist this particular amendment.

The noble Lord, Lord Kingsland, will fully accept that he has moved to resurrect the long-standing Conservative "grossly disproportionate" amendment relating to householders among others. I would therefore like briefly to revisit the long-standing problems that the Government and practitioners have noted with that proposal.

The purpose of this amendment is to make a new defence available to a person acting against an intruder in a building who used force in the prevention of crime, in self-defence, defence of another or of property. Its intention is to provide a complete defence unless the force used was grossly disproportionate, and that had or ought to have been apparent to the person using such force. It is our strong view that the new clause as it stands does not resolve that issue. It also goes a step too far. We believe that the approach set out in the new clause risks further confusing the issue in the mind of the general public and in the eyes of practitioners—exactly the outcome that we all seek to avoid.

I will turn first to the issue of confusion. Setting a separate test for householders acting in self-defence, which then admits a higher threshold of force, leads to the perception that the individuals defending themselves from attack in the street are somehow lesser candidates for the defence. We can all appreciate the peculiar terror and vulnerability of the person confronted by a burglar, probably in the dark, in their own home, perhaps woken from sleep and alone, but what about the terror of the rape victim defending herself from attack in the street? Should the law appear less generous in those circumstances? I suggest not. While that is not the intention of the noble Lord's amendment, it is a likely and undesirable side effect.

There are other problems with the noble Lord's proposal, especially where our common aim is clarification. When referring in new paragraph (1A) to,

"any building or part of a building', there will inevitably be a question of definition. Are a home, garden, shop, warehouse and caravan all to be regarded equally as they can all effectively be trespassed? The common link appears to be the burglar—the definition of "building" is explicitly linked to the Theft Act 1968—so is the defence likely to apply only when tackling a burglar? Does a person need reasonable grounds for suspecting a burglary—as they would if they were seeking to arrest them? Those are difficult questions.

The beauty of the Criminal Law Act 1967 is that it allows reasonable force to be used when tackling any crime. Clearly, there are concerns about being able to use considerable force when defending the home, but that is already adequately catered for because the test of what is reasonable is judged in the circumstances, which would include concerns about being able to defend home and loved ones. Indeed, one would be judged in respect of the circumstances as one believes them to be, even if that belief is mistaken, provided it is honestly held. I trust that that is to some degree an indication that the desiderata set out by the noble Lord, Lord Elystan-Morgan, have been met.

Equally, when referring to the "person" using force, how is their relationship to the property in which the act takes place defined? Should the house or business owner be treated in the same way as the babysitter, guest, private security guard or even squatter, given that all may effectively be residing in a private dwelling and may have recourse to use force when encountering a trespasser?

And as drafted, the defence would even be available to a police officer who has been summoned to the scene. Are they too to be allowed the benefit of this higher test but if so why only in these circumstances?

Although the answer to these questions may be clear in the mind of the noble Lord, it is unlikely that they will be as clear in the mind of the general public or practitioner on the front line, especially given the emotionally charged circumstances in which they are likely to need to answer them. Nor is it at all clear how the purported procedural protection of requiring the Attorney-General's consent is expected to work. Proposed new Section 3(1B) the Criminal Law Act 1967 requires the Attorney-General's consent before a prosecution can be brought against a person who has used force against a trespasser in self-defence or in the prevention of a crime. But until a prosecution has been brought and the court has ruled on the matter, how is it going to be clear whether a person who has used force acted in self-defence? Thus, consent from the Attorney-General would be required when the factual background was uncertain and unclear and was most probably to be contested. I gratefully adopt the observations made on an earlier amendment by the noble and learned Lord, Lord Mayhew, on the role of the Attorney-General.

But as I said earlier, as well as the issues around confusion and practicality in the noble Lord's amendment, there is a fundamental question of principle—is a test of "grossly disproportionate" right? In this regard, I share the concerns of the noble Lord, Lord Thomas of Gresford, when he asked what this might mean. There are legal and human rights issues which I will come on to. These are based on real concerns and it is important to look at the reason why the limitation exists.

In this case one needs only to turn the proposed test round to see the difficulty. No one expects the person who is under threat to be able to judge to a nicety what level of force is appropriate. But under the proposed new clause before us the person using the force is deprived of the defence only if the degree used was grossly disproportionate and this was, or ought to have been, apparent to him. So, ex hypothesi, he would be entitled to use force which was disproportionate, but not grossly so, even though this was, or ought to have been, apparent to him. I submit that this is clearly one step too far. The civil test in the 2003 Act employs the words "grossly disproportionate" but that is the ploy to prevent a claim for damages. It does not follow that it is right for the criminal law to apply the same standard because one finds oneself put in the position of legitimising excessive and disproportionate violence, which seems a step too far.

Further, the terms of the negative obligation in Article 2 of the European Convention on Human Rights are straightforward. They allow the state to deprive someone of their life only,

"when it results from the use of force which is no more than absolutely necessary".

This means that it would be impossible for the state to apply the "not grossly disproportionate" test to its officials.

The position is more complex where the positive obligation to have adequate law in place is concerned, leading to a possible argument that applying the provision to private citizens alone would be a resolution to this issue; that is, that the "grossly disproportionate" test would be acceptable for the private citizen against trespassers. The Government disagree. First, we do not consider even this would be acceptable in human rights terms. But in any event such a solution would lead to a separate law for state officials. Here again we risk presenting the public with the ambiguity of two tests, thereby impeding our attempt at clarifying the law. It is desirable that one test and one set of considerations be used to assess the appropriateness of all such acts. The householder under threat at the top of the stairs needs to have the same understanding of their rights as the passer-by coming to the assistance of a robbery victim in the street.

As regards the test, the noble Lord, Lord Neill of Bladen, made the point that one is bringing together the statements of Lord Morris of Barth-y-Gest in Palmer and the noble and learned Lord, Lord Woolf, in Martin, and that there is a combination of subjectivity and objectivity in the test. But Clause 128 as drafted seeks to take in both the test enunciated by Lord Morris and the full test of the noble and learned Lord, Lord Woolf, in Martin and in that way cover the full approach of deploying what is truly a mix of the subjective and the objective test in the common law as it stands. I hope that may to some degree allay the concerns expressed by the noble Lords, Lord Elystan-Morgan and Lord Dear, in relation to this point.

I bring to noble Lords' attention the example some weeks ago of Mr Singh. Perhaps the interesting point there is that Mr Singh was not prosecuted, and that decision was quickly arrived at. The noble Lord, Lord Dear, talked about the agony of the victim who has used violence in self-defence. I hope that one can see from the position adopted that one recognises the difficulty of that in this area, but that it is important to employ a certain clarity. It is hoped that the clause will bring that clarity. The position that the noble Lord, Lord Dear, brought to our attention, of the burglar meeting him in his stable yard, perhaps leaves one with the impression that it would be a rather unlucky prospective burglar. The noble Lord, Lord Elystan-Morgan, wished that the law was going to clarify the position, but I submit that the clause does precisely that; it is the intention of the Bill to clarify and reinforce.

In looking at questions of nicety and using the defence in this type of position, it is perhaps difficult to see where Clause 128 meets a problem as regards the difference between strong and potent evidence. I can see that an argument can be made on that point, but there might be a certain nicety in the difference. While fully acknowledging and sharing the noble Lord's good intentions in raising the issue and the amendment, it is clear that the defence that he proposes to create would go too far, would create anomalies and would not serve to clarify the law, but instead would produce tiers of tests for self-defence. As the amendments would invariably result in multiple tests and, arguably, in even less clarity than the status quo, let alone the insurmountable ECHR issues, I ask the noble Lord to consider withdrawing the amendment.

I would now like briefly to reiterate the key aspects of the Government's clause and why it is the pragmatic way forward. Citizens acting in the prevention of crime are plainly to be applauded. The law must not only stand by them in the courts, which it generally does to good effect, it should also stand by them from the very moment that they take action. The Government do not want to encourage vigilante or reckless behaviour, but they do want to encourage socially responsible behaviour; lawfully coming to the aid of a fellow citizen or acting in defence of oneself or one's home, for example. To do this, we must give the public more confidence that the law is on their side, so the question is how best to instil this confidence.

The law rightly allows a person to use reasonable force in self-defence or the prevention of crime, and the courts have developed a helpful body of case law giving guidance on reasonable force, but not everyone has either the time or inclination to research the position across the case law. For this reason, we have worked closely with practitioners to draw out and enshrine in legislation the most important principles on reasonable force derived from the case law.

First, any force used to fend off or detain an assailant must not be disproportionate in the circumstances. For example, it is obviously not acceptable to use an extremely high level of force in response to relatively minor aggression. That would be plainly excessive and unreasonable. Of course, continuing to use force against someone who has already been subdued would not constitute force in self-defence at all, as the point at which force is needed has passed. But force used genuinely in self-defence or to prevent a crime, and which is not out of proportion to the circumstances, is lawful.

Secondly, the law understands that in these highly charged situations it is not always possible for someone to judge to a fine degree exactly how much force they should use. Their actions will be judged based on how they personally perceived the situation; not through the eyes of a cool, dispassionate onlooker, and if they did no more than they "honestly and instinctively thought necessary"—to use a phrase—that would be strong evidence that they acted reasonably. For example, a householder in their own home at night might use an object that was to hand to strike an intruder—the circumstance that the noble and learned Baroness, Lady Butler-Sloss, envisaged—but this action should be considered against the background of the fear that they experienced at that very moment, not in the cool light of day.

Thirdly, in the very stressful situations that we are reflecting on, people can make honest mistakes. They should not be judged harshly for these unless, as the clause suggests, they are as a result of voluntary intoxication.

We suggest that these three principles help to send a positive message to the public and the police about how and when force may be lawfully used in self-defence. However, it is not only to the public and police that this message needs to be sent; our Armed Forces probably depend on the present law of self-defence more critically than any other group. In clarifying in legislation the operation of the current law, which allows the use of reasonable force, rather than introducing a new threshold, we will avoid causing any confusion for our Armed Forces on current or future operations or in their day-to-day roles. The Armed Forces can be confident that the current law will continue to protect them in their duties.

In summary, we contend that we are sending a positive message about how one can lawfully and responsibly protect oneself, one's family and home, and other citizens.

I appreciate that I have taken some time with this amendment, but in previous discussions it has been difficult to cover the full range of points here and it was thought necessary to do so. Given the broad explanation, I accordingly ask the noble Lord to consider withdrawing his amendment.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench 9:45 pm, 3rd March 2008

Would the noble and learned Lord think me very churlish if I suggested that now it is clear that the Government are to retain the clause, they should set out clearly somewhere in it a point that is not mentioned at all—that is, that the onus of proof remains on the prosecution throughout? We as lawyers know that to be the case but it would do no harm at all to spell it out in bold print.

Photo of Lord Davidson of Glen Clova Lord Davidson of Glen Clova Advocate General for Scotland, Law Officers' Department, The Advocate-General for Scotland

I certainly would not ever consider the noble Lord churlish. Again, the point that he raises may be going one step too far in stating the very obvious. One assumes that the public and the police are fully seized of where the balance lies in these matters.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

To say that we have heard it all before is an understatement. The noble and learned Lord could have been reading principle after principle from the Judicial Studies Board's standard directions on self-defence. We are spending an hour on this topic. Why was it necessary to deal with self-defence and not all the other issues—certainly those surrounding homicide—such as provocation, manslaughter and so on? Why is it still in the Bill? We have spent a whole hour on it when I thought that the Government were in a bit of a hurry.

Photo of Lord Davidson of Glen Clova Lord Davidson of Glen Clova Advocate General for Scotland, Law Officers' Department, The Advocate-General for Scotland

It is because the Government regard it as a matter of importance. It is entirely clear from public discussion that the public regard this as a matter of substantial importance, and it is considered to be a matter of priority to establish clarity and reinforce the current law.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative

Will the noble and learned Lord think again about the suggestion of the noble Lord, Lord Elystan-Morgan, that reference should be made to where the burden of proof lies? I understood the Minister to say that he thought it was generally understood by the public that it was for the prosecution to prove its case. That is not my universal experience. I think that a lot of the public believe that you have to prove yourself innocent in this regard—I think, for example, of the Martin case. I respectfully agree that it would not do any harm to incorporate in the clause some reference to the law on the burden of proof.

Photo of Lord Davidson of Glen Clova Lord Davidson of Glen Clova Advocate General for Scotland, Law Officers' Department, The Advocate-General for Scotland

Of course, I hear what the noble and learned Lord says and I respect his statement. The position as things stand at present is to adhere to the clause as currently drafted. However, what the noble and learned Lord said will certainly be noted.

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament 10:00 pm, 3rd March 2008

The Government seem to have travelled a long way from the heady days of electioneering last October.

The Committee will be extremely grateful to the noble Lords, Lord Neill of Bladen and Lord Elystan-Morgan, for their illuminating expositions of the history of the law and their critique of Clause 128. Before I respond to the Minister, I want to make it clear to the noble Lord, Lord Thomas of Gresford, that in devising this amendment I did not have the case of Martin in mind. Indeed, I suspect that in that case the degree of force used was grossly disproportionate. Therefore, any suggestion—I am sure it was not intentional—that I was trying to use that to deal with a similar case in the future is simply not so.

The Minister subjected the amendment to very close attention. In particular, he submitted new subsection (1A) to an intimate textual exegesis which rather betrayed his skills as a property lawyer. I have no doubt that a great deal more could have been said and that the Minister was reining himself back. I do not have any difficulty in altering that part of the text or generalising it to circumstances beyond buildings. The reason why it has been cast in this manner is that the invasion of a building is a particularly stressful thing for a householder to suffer. Therefore, it seemed to me that this test, above all, applied in those circumstances. I can see an argument for generalising it to the whole law of self-defence, bearing in mind the qualification that the noble Lord, Lord Elystan-Morgan, made about the burden of truth. I would not want the Minister to be in a position to condemn me simply because of the drafting of new subsection (1A).

I found his comparison with the words "grossly disproportionate" in subsection (1A)(a) and the civil test—dare I say?—somewhat disingenuous. If "grossly disproportionate" is a perfectly understandable and entirely legitimate concept to use in the civil test, why should not the same apply in the criminal test? Plainly, if the Government use it in the civil test, they do not think it is void for uncertainty; they must know what it means. It must therefore follow that if the Government knew what it meant in 2003 in the civil test, they must know what it means in 2008 in the criminal test. The claim that there is a degree of uncertainty about the law—

Photo of Lord Davidson of Glen Clova Lord Davidson of Glen Clova Advocate General for Scotland, Law Officers' Department, The Advocate-General for Scotland

It is entirely clear to the Government that there is a difference in the use of "grossly disproportionate" in the civil and in the criminal contexts. It may have every position in the notion to confine the application for damages. To simply say that that language has been used and, therefore, it can equally be employed in the criminal sense is unsound. Of course, one knows what it means and it is because one knows what it means that one considers that it should not be used in the criminal context. I hope that is helpful.

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

It is no comfort to the householder, as he makes his way to prison for life on the basis of the test in Clause 128, that the victim has failed to succeed in an action for compensation against him because he failed to prove that the action of the householder was grossly disproportionate.

This is a matter to which we shall return. I was wondering whether the noble Lord, Lord Bach, had something to say to the Committee. I would be happy to give way to him, if he did. In my submission, the European case which was so carefully analysed by the noble Lord, Lord Neill of Bladen, with respect to the concept of the doctrine of the margin of appreciation, exactly reflects the concept of "grossly disproportionate" in my amendment. In that sense, I shall return to this matter on Report. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 27 agreed to.

Photo of Lord Bach Lord Bach Government Whip, Government Whip

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at 10.05 pm.