New clause 26 - Excluding the civil liability of the victims

Criminal Justice Bill – in a Public Bill Committee at 9:10 am on 4 March 2003.

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'.—(1) A person who has been convicted of a criminal offence before a relevant court shall have no civil action for damages in respect of personal injury caused by the victim of the offence for which that person has been convicted.

(2) Subsection (1) shall only apply to personal injuries caused during the circumstances of the offence for which the person was convicted.

(3) For the purpose of subsection (1) ''victim'' is defined as any person natural or corporate—

(i) whose interests were affected or threatened by the relevant offender, or

(ii) who believed on reasonable grounds that their interests were affected or threatened by the relevant offender;

(iii) who was, at the time of the offence, a servant or agent of any person falling within paragraphs (i) or (ii) and who either knew or reasonably believed that the person's interests were so affected or threatened by the relevant offender.

(4) For the purpose of subsection (3) ''interests'' includes—

(i) any proprietary interest;

(ii) a personal interest in avoiding physical injury.

(5) For the purpose of subsection (1) ''damages in respect of personal injury'' shall be defined to include all consequential loss suffered by the offender.'.—[Mr. Grieve.]

Brought up, and read the First time.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I beg to move, That the clause be read a Second time.

As the Committee will see, the new clause raises the issue of civil proceedings brought by criminals against their victims after their conviction and arising out of the circumstances in which they committed the offence. I felt that tabling a new clause that talked in absolutes was the best way to approach the issue if we were to have a reasoned and sensible discussion. The new clause would wholly deprive anyone convicted of a crime of the ability to sue or bring civil proceedings against their victim on the basis of the circumstances

in which they committed the offence. I felt that that was the best way of proceeding, although one may advance perfectly reasonable arguments against my proposal or seek to temper its full force.

Hon. Members will be fully aware of the extent to which the current system has given rise to serious public disquiet. There have been several high-profile cases, one of which is still running. Individuals who have committed serious offences, such as burglary, and who were injured by their victims, have brought civil claims against them. That has given rise to public outrage—there is no other way of describing it. The Martin case is a classic example, but there are others. Five or 10 years ago, for instance, there was a case involving a person who owned an allotment in the north-east of England. Someone persistently broke into and damaged the cabin on the allotment. Eventually, the owner lay in wait for him and caused him serious injury when he appeared. The owner was subsequently convicted, but the victim brought civil proceedings.

The new clause would prevent such cases. One can advance perfectly good arguments against owners—the victims—using excessive force against aggressors, but there are sound public policy reasons for arguing that someone who commits a burglary or theft should entirely forfeit their rights under the civil law. Although the homeowner in the Martin case may have been properly convicted for using excessive force, that does not give the victim or his relatives the right to bring civil proceedings when the injuries sustained were the direct result of his own criminality.

The public are not well aware of how the system works at present. It is perfectly possible for a criminal victim who has been injured in the course of his crime to bring civil proceedings against the person who injured him. He may recover damages. He may however—this happened in the case that I cited from the north-east of England—find that his damages are substantially reduced for contributory behaviour or negligence. I think the reduction in that case was 75 per cent. The public do not see that: they see a person initiating legal proceedings—frequently brought with the backing of legal aid—to seek damages arising from his criminality. That is a cause of deep public disquiet, and if I understand the Home Secretary's response on ''Any Questions?'' on Friday, it seems to be a cause of considerable disquiet to him too.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

Does my hon. Friend agree that understandable public outrage is usually based on press reports that are at best misleading? Such reports fail to make the point that in an action by a so-called victim, contributory negligence applies and the damages would be greatly reduced. If the press were more responsible, the public outrage would perhaps be reduced.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

My hon. Friend is quite right. That is why I explained that I intend to point out the pros and cons of the new clause. It is, however, a proposal that the Committee must consider.

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Labour, Wellingborough

I wonder whether one of the cons might be that a prostitute who

stole from a client and who was then raped and beaten would not be able to claim any damages at all.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

The hon. Gentleman gives one example, but let us take another: two 13-year-old boys climb over a wall to steal apples, for which they may subsequently be convicted of theft, but the homeowner, who might have seen them at it five or six times, loses his temper and beats them with a stick, causing one of them serious injuries. In such circumstances, should that 13-year-old be deprived of the opportunity of bringing civil proceedings? I am extremely mindful of proportionality. However, proportionality does not mean that the Committee should simply shirk the matter, as there is considerable public concern.

I will come to several ideas that the Committee may like to consider—ideas that I describe as halfway houses.

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Labour, Wellingborough

The hon. Gentleman is right that we should not shirk the matter, but it is also right that we should reject the new clause.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

The hon. Gentleman may have detected from my opening words that I am unlikely to press it to a vote. Nevertheless, I thought it right to table it in those terms, and I did so quite deliberately. I thought that in that way we could consider one end of the spectrum.

Some people, who are not necessarily wrong, will say that it is all very well, but a person who uses excessive force against someone who is committing a crime against him merits the sanctions of the criminal law. However, in those circumstances there should not be an absolute right to bring civil proceedings. Although some would say that that is an excessively harsh rule, I do not think that it is wrong as an absolute moral principle. Those who choose to commit crime—this relates to both children and adults, but especially to adults—may be taken as having to accept the consequences of those actions. If they carry out a crime that is likely to excite or anger somebody, it is difficult for them to complain if they suffer injury as a result. That point goes right across the spectrum, from the householder who may be able to claim legitimate self-defence so that not a penny is recovered, to somebody who uses greatly excessive force. Nevertheless, people who go out and choose to commit crime, especially adults, may reasonably be said to have forfeited their rights to bring civil proceedings if they suffer injury as a result of their own wrongdoing.

Let us move away from that absolute stance for a moment and consider what might be done to meet the public disquiet, which my hon. Friend the Member for Woking (Mr. Malins) rightly said might in part be a result of misreporting. However, the newspapers and the public have latched on to the fact that civil proceedings are being commenced and that public money is being made available to bring them in circumstances in which they cannot see the smallest shred of justification. They would express horror if a

single penny were paid over to that criminal victim in the event of the litigation succeeding.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

My hon. Friend makes a good point. I simply add that public money is used, which is in stark contrast to what happens to the victim of the crime, who may have received absolutely nothing by way of compensation.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

That is absolutely right. For many victims of crime, the consequences of being victims often do not allow for compensation, although if they suffer injury themselves, there may be recourse to the Criminal Injuries Compensation Board. Very often, however, there are material losses to the victims—especially the poorest or the uninsured—from which they never recover. Leaving aside the conviction and sentence for the offence, a startling aspect of the Martin case is that on release it will be unsafe for him to return to his own home. That has been widely reported in the newspapers. It has been suggested that he will have to be sent to Australia as an exile. Furthermore, during his imprisonment his house appears to have become ruined, and he will suffer serious financial consequences, over and above the conviction that he received for using excessive force. Those matters are all likely to excite adverse public comment on how our system of justice operates. We cannot get away from that.

I do not know what attitude the Minister will take, and I shall be interested to hear from him. As I said, I understand from the Home Secretary's reply on ''Any Questions?'' on the radio on Friday that my concerns appear to be substantially shared. I do not know whether things have changed from Friday to Tuesday, but I should be grateful to hear the Government's response.

There are, of course, some possible halfway houses, and I simply float those proposals for the purpose of discussion. It might be possible to frame legislation more narrowly than I have done in the new clause to provide that the case of a person who wishes to bring civil proceedings as a result of a crime committed by him would have to pass some preliminary hurdle, examining the issue of proportionality. That would provide the court with a speedy mechanism for saying, ''What happened to you was not so disproportionate to the offence that you committed that you should have a right of action,'' and preventing the action from proceeding. That would also allow the courts to explain publicly why certain cases, in which it appears that the injury suffered by the criminal was not disproportionate, should not be allowed to proceed. That might go a long way towards reassuring the public about the operation of the system.

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Labour, Wellingborough

If the hon. Gentleman is seeking proportionality, what is wrong with using the existing doctrine of contributory negligence, which specifically determines that compensation should be granted in proportion to the responsibility of others for the injuries suffered?

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I am not persuaded that the principle of contributory negligence, which I understand well enough from practising in personal injury cases,

marries well with circumstances in which an individual has set out to commit a crime. I accept that it would operate differently in each case, but there is a public policy argument that there should be no right to litigate except in cases of major disproportionality. Any element of disproportionality should be sufficient to get over that hurdle, although in considering that shift of the goalposts I should like to hear the Minister's views, as well as those of other members of the Committee.

This is a serious topic for discussion on which the Home Secretary appears to share our concerns. If we are not careful, we shall give the public the impression that the civil justice system is a gravy train, which can be used and exploited by people who they feel should never be allowed to bring a civil action. There is a danger of bringing the law into disrepute. I hope that the Minister will be able to help the Committee on that point.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I support what my hon. Friend said. I will not reiterate his arguments but will focus on the general principle of self-defence. The new clause points to an area of our law that is unsatisfactory and brings into sharp focus the issue of self-defence in the criminal law. The troubles that we read about often come from cases involving self-defence. I hope that the Government will introduce their own proposals along the lines of the new clause.

It is a well-known legal principle that an assault in self-defence is not an offence, because a person who is under attack or threat of attack, or who believes that he may be under attack or threat of attack, is allowed to use force to defend himself or his property, subject to that force being reasonable. What constitutes reasonable force depends on all the circumstances of the case. In any trial involving self-defence, directions are normally given to the jury on the basis of those circumstances, and of answers to questions about whether the attacker was on his own, whether he had a weapon, what the domestic situation was and how vulnerable the victim was. One gradually reaches the point at which the jury are left to decide whether self-defence applies.

There is always a direction to the jury that they should be aware that a person who is under attack cannot be expected to weigh precisely the amount of force needed in self-defence. There is a slight presumption that if the person thought that he was using reasonable force, that might constitute self-defence.

The question of self-defence is a regular feature of assault cases and as regular a matter of law as any other that crops up. By and large, it works well. However, the classic cases that get into the press—those that cause the public to become distressed—raise the wider issue. The papers are partly responsible, in that the public read of a man being assaulted or burgled—the victim—who, having fought back in some way, finds himself on the receiving end of a writ. It is a good thing that that point has been brought to the attention of the Committee through the new clause.

The hon. Member for Wellingborough (Mr. Stinchcombe) drew attention to the sort of extreme case on which we would all agree. It is plain that if, for example, a prostitute stole from a client and then got herself beaten severely, she would be prohibited from bringing a claim. The same would apply in the apple-scrumping case mentioned by my hon. Friend the Member for Beaconsfield (Mr. Grieve). A normal person would say that the reaction was completely over the top in terms of self-defence, and of course the victim should be able to bring an action for damages. Similarly, if somebody is caught by me stealing a pot plant from my garage, which is open to the street, it might be burglary. There is no disagreement about that.

However, there are cases at the other end of the scale that might pose greater difficulties, even allowing for contributory negligence. Take a situation in which one is in one's home at night, perhaps alone. A burglar comes in and, very frightened, one goes downstairs to see what is going on. One notices straight away that the burglar is either armed—this is important—to extent of having, say, a knuckleduster on or a poker in his hand. In a fit of fear, one takes what might subsequently be thought to be a dramatic step. One takes the shotgun down from the wall and shoots the burglar. Who knows whether self-defence would apply? The view taken by the jury would depend on the directions that they were given and on the facts of the case.

However, the point is that there is a potential sticking-in-the-throat problem when the civil action by the victim—in this case the burglar—takes place. The burglar is a man aged 25 to 30. Let us assume that the damage done by the householder is brief, not prolonged, but of such severity as to render the burglar incapable of active work for the rest of his life. It is not inconceivable that the victim, who may have a rotten bad character, may seek to commence a civil action. That could involve his suing for, shall we say, £500,000. The difficulty arises that, even with a strong contributory negligence system, if the so-called burglar—the wrong 'un—is found to be not just 90 per cent., but 95 or 96 per cent. contributorily negligent in a civil court, his original victim can still end up paying out a substantial sum. That sum may be £4,000, £5,000 or £6,000, whereas a blameless suer would have got £500,000. Even on that level, however, something sticks in one's throat, which is why that point must be addressed.

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Labour, Wellingborough 9:30, 4 March 2003

The hon. Gentleman is making a powerful speech against the new clause and in favour of the existing system. Does he agree that the new clause fails to distinguish between good and bad cases and will treat all cases exactly the same? The beaten prostitute would not be able to sue for damages.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

The hon. Gentleman, whom I have known well over the years, is teasing me. He said that I made a good, powerful speech. I then waited for the punchline, which was also extremely powerful but said that it was against my own argument. I take that on the chin, as I take all such remarks.

I still believe, however, that the fundamental issue needs to be addressed. Although we are absolutely of

one mind in relation to the extreme cases that the hon. Gentleman and I mentioned, we nevertheless have a problem with the so-called plaintiff in the action, whom we have called the wrong 'un, being capable of recovering £4,000, £5,000 or £6,000 from the original victim when the plaintiff may have been 99 per cent. at fault. In that situation, many of us would say that there could and should be an absolute bar and that no money should be recovered.

The very fact that the issues of self-defence and the ability to bring a civil action when one is the original and serious wrongdoer have been highlighted by my hon. Friend the Member for Beaconsfield reflects public concern. Such concern must be addressed because the public are very good at assessing what is fair and reasonable in life. The public, together with my hon. Friend, have identified a potential unfairness in the current system that must be addressed.

I am not entirely certain whether the laws on self-defence in criminal cases or contributory negligence issues need to be subtly revamped, but my hon. Friend has done the Committee a service by pointing out a problem. If today's debate enables us to move even slightly closer to a solution that will cure some of the public's genuine concerns, it will have been worth having.

Photo of David Heath David Heath Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

I am grateful to the hon. Member for Beaconsfield for introducing the debate and the way in which he did so. It is an important matter that substantially exercises members of the public. People are concerned when they hear of such claims going before the courts. They are especially upset when such cases are funded by legal aid. However, that is a most unfair distinction because it suggests that successful criminals may bring proceedings but unsuccessful ones may not. That is an unsound basis on which to make a distinction. However, it is undoubtedly a concern on which the Committee ought to reflect.

I reject the solution offered in the new clause, as I think does the hon. Member for Beaconsfield. The tenor of what he said is that he does not actually believe that an absolute prohibition would be the right solution. As he said, it is a matter of proportionality. It is interesting that he should raise the case of the allotment holder in County Durham. I may be wrong, but my recollection is that the chap rigged up a shotgun inside his allotment hut. That is not a proportionate response to someone who is interfering with one's leeks. Even under those circumstances, however, contributory negligence cut in and vastly reduced liability for civil damages.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

That case is sufficiently long ago for me not to be able to recall it correctly, but I think that it was not leeks that were being taken but tools from the shed. Numerous complaints had been made to the police, who were unable or unwilling to help. That was an example of someone being forced to extreme measures by the failure of our law and order system to offer adequate protection.

Photo of David Heath David Heath Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

I do not want to belittle that case, or to appear unconcerned with the basic principle, but public concern is very much driven by the perception that the police are not able to provide adequate protection, particularly in rural areas. People feel very alone when faced with persistent wrongdoing. An independence of spirit, to be found especially in rural areas, can lead people to believe that they are capable of looking after themselves. If they do so in such circumstances, they can find themselves surprised to have wrongly assessed the level of risk and the response appropriate for self-defence. They can then end up in court for having exercised what they—wrongly—think are perfectly proper measures for their own protection. We have to tell them that they are not proper, because there is clearly a lack of proportionality in using firearms in such circumstances.

Photo of Mark Francois Mark Francois Opposition Whip (Commons)

That individual was clearly completely exasperated and had complained to the police on many occasions, but as my hon. Friend the Member for Beaconsfield pointed out, the police were unable to help. What then should that individual have done?

Photo of David Heath David Heath Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

The hon. Gentleman raises an important point. It is one that we frequently come across in our constituencies. People say to us, ''I have been to the police on innumerable occasions, and nothing happens. I am not adequately protected.'' People in my constituency advice surgeries regularly say, ''I'll tell you what will happen next time: I shall have my shotgun.'' That may be a Somerset perspective, and it may be different in some inner-city constituencies. If the hon. Member for Nottingham, North (Mr. Allen) was here, he would doubtless pray in aid the even greater sanctions available on the estates in his constituency. However, we always advise people to use some sense about what is appropriate, and say ''I hear what you say, but do not believe that you are above the law, because you are not. Like everyone else, you are subject to the law.''

The hon. Member for Beaconsfield made no mention of another area of civil liability that can cause a great deal of offence. I am thinking not of self-defence but of a spurious duty of care for those who intrude on one's property for nefarious purposes. I remember how outraged I was many years ago when I was a member of a local authority and lawyers advised us that we were required to erect lighting at a civil amenity site, and that it should be kept on all night, despite the fact that the byelaws said that the site should be closed at dusk.

No one had access to the site during the hours of darkness—if anyone was there at night it was to rifle through the skips and take what they could—yet we were advised that we had a clear duty of care to avoid their falling over or cutting themselves on the edge of the skip. We were required to spend public money for the avoidance of hurt to people who should not have been there, and who were explicitly forbidden by law from being there. That seems nonsense to me. We should consider what is an appropriate duty of care to those who are on one's property with nefarious intent, to commit crime.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs) 9:45, 4 March 2003

The hon. Gentleman makes a good point. I deliberately chose the most extreme example. The oddity is that it would be most unlikely that anyone would be prosecuted for breaking into a site and rifling through the skips as in the case that he cited. The provisions would not, therefore, be relevant in any case. Duties to trespassers certainly seem onerous sometimes. However, another issue concerns people who are injured while committing crime, not by any direct action of the homeowner, but simply because they trip on a floorboard in the house that they are burgling. That is taking to the point of absurdity any right of recovery, but technically such a right could exist.

Photo of David Heath David Heath Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

There may well be a case for an absolute prohibition on proceedings in such cases.

Photo of Mark Francois Mark Francois Opposition Whip (Commons)

Given the example that the hon. Gentleman has given, in which lawyers insisted that the body on which he served should take the course of action in question, and spend public money in consequence, is it any wonder that general election turnout is at 60 per cent. and falling?

Photo of David Heath David Heath Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

The hon. Gentleman must not divert me into a different debate, although I hear what he says.

The contributory principle is to a great extent capable of dealing with the mischief that has been identified, but I understand what the hon. Member for Beaconsfield says about a preliminary hurdle that would establish whether the person committing the crime contributed so greatly to what happened as to make a civil action for recovery of costs inappropriate. I am not sure about the mechanism. It might be a matter for the judge in the original criminal case to assess, but that would take him outside normal criminal law practice. Perhaps there would have to be a separate hearing. However, I think that victims of crime have a reasonable expectation that they will not be unnecessarily or inappropriately pursued for recovery of costs, or threatened with that, by someone who has committed a crime against them.

I should want to whittle the matter down to a clear area of criminal behaviour. Perhaps the only appropriate cases would be those in which victims of an initial crime were themselves found by a criminal court to have acted disproportionately in self-defence, and were subject to criminal sanction accordingly. A mechanism for recovery of costs should be available in such cases, but with a filter to ensure that it is not used lightly or without good reason.

I do not accept the proposal of the hon. Member for Beaconsfield. There are many difficult cases that would fall foul of it, involving people who have committed crimes but who should not lose their civil rights with respect to other proceedings, since what has happened to them is out of proportion to the crimes that they committed. However, we need in this context a consideration that tends towards the reassurance of the public, and the maintenance of the basic principle that persons who commit crime contribute to their fate. That needs to be taken into account. The mechanisms set out by the law need to command the confidence of those who go through the courts as well

as of the general public, who are currently not satisfied that, in this instance, the law is not an ass.

Photo of Ian Lucas Ian Lucas Labour, Wrexham

I am sure that the hon. Members for Beaconsfield and for Woking are familiar with the old legal maxim that hard cases make bad law. From the outset, the hon. Member for Beaconsfield was cautious about the absolute new clause, and I sensed a certain embarrassment when he presented it to the Committee. I suspect that that embarrassment comes from the fact that, in discussing the new clause—the hon. Member for Woking referred to this—we are pandering to the reporting of individual cases in the tabloid press, which has misrepresented the current legal position. Such misrepresentation of the facts of certain cases is a bad premise on which to base new law. As has often been said in our discussions, we must not base legislation on knee-jerk reactions, so I call on the Minister to reject the new clause in its entirety.

Photo of Mark Francois Mark Francois Opposition Whip (Commons)

Several themes have run through our discussions, one of which is the fact that the public are losing confidence in the criminal justice system. We have a responsibility to address that issue, and the hon. Gentleman should be conscious of that.

Photo of Ian Lucas Ian Lucas Labour, Wrexham

I am very conscious of the lack of confidence in the criminal justice system among certain elements of the general public, but part of the reason for that is the misrepresentation of individual cases by newspapers, which on occasion beggars belief. It is wrong to make new law in an attempt to pander to the worst elements of the tabloid press.

Photo of Mark Francois Mark Francois Opposition Whip (Commons)

Is the hon. Gentleman seriously arguing that there are no material problems in the system and that it is all got up by the press?

Photo of Ian Lucas Ian Lucas Labour, Wrexham

If the hon. Gentleman had listened to the reasoned and measured contributions made by his colleagues, the hon. Members for Woking and for Beaconsfield, he would have heard them saying that very thing: that the press misrepresents the current system. We need to examine that issue, and I am glad that it has been raised.

I want to correct at least one misrepresentation that has been made in Committee this morning about legal aid. I stopped practising as a personal injury lawyer in 2001, but as far as I am aware, legal aid is available nowadays only in a very limited number of personal injury cases. The only circumstances in which an individual is likely to obtain legal aid for a personal injury case is if that person is a juvenile. The Martin case is an example of that. The new clause's proponents must take that major issue into account. I should like them to concede at the outset that we are talking not about the generality of personal injury cases but about the limited class relating to juveniles. The concerns expressed by the hon. Member for Beaconsfield can be dealt with in the legal aid process. When an application for legal aid is made it is open to the defendant in any proposed civil proceedings to make representations to the Legal Aid Board and to claim that a grant of legal aid would not be in the public interest.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

The hon. Gentleman makes an interesting point. I did a great deal of personal injury

work in the past, and on a number of occasions suggested to defendants' solicitors that the time had come for writing to the Legal Aid Board and pointing out the disgraceful waste of public money in the case—drafting letters and giving chapter and verse on the reasons. I cannot think of a single instance in which it was effective, notwithstanding that in each case the outcome was that the plaintiff recovered nothing.

Photo of Ian Lucas Ian Lucas Labour, Wrexham

I take the hon. Gentleman's point. I have written to the Legal Aid Board myself on occasion to point out the ludicrousness of the grant of legal aid to the other party in proceedings. The Legal Services Commission needs to examine that issue. It is curious that in such cases I always found it more difficult than my opposition to obtain legal aid for my client. I suspect that I may have been too honest in the applications that I made.

A significant issue arises in a small number of cases in which individuals clearly should not have the benefit of public money to pursue personal injury cases. Cases must be considered in their own terms. The facts of each case are important, as we have heard from the examples given today. The only sensible course is to examine each case to determine whether legal aid is appropriate. There is a case for more open consideration between parties of whether legal aid should be granted. There is no provision, to my knowledge, for an oral hearing between parties to argue whether public money should be made available. That would be the helpful way to deal with the small number of cases that cause difficulty.

I do not accept that the broad-brush approach set out in the new clause would help. We need to focus on a small group of cases and examine them individually to establish whether public funding should be available for them, and to improve the current procedure. I expect a press release to issue from certain political departments as a result of the tabling of the new clause, but although I reject it, I recognise that we need to improve the present system to ensure that legal aid is not granted in ludicrous cases.

Photo of Hilary Benn Hilary Benn Parliamentary Under-Secretary (Home Office) (Minister for Prisons and Probation)

I greatly hope that the purpose of the new clause is not a press release. I did not think that that was the reason for our debate.

I am grateful to the hon. Member for Beaconsfield for the helpful way in which he introduced a difficult issue. I think that this is what is known as a self-withdrawing, if not a self-defeating, new clause, for the reasons that he outlined. I recognise that it is a peg on which to hang our discussion, for reasons that have been discussed at some length and were first pointed out by my hon. Friend the Member for Wellingborough who, as usual, carefully reads what is before the Committee.

It is not a solution that any of us could vote for, but I understand some of the frustrations that have been fairly reflected by all who have spoken. However, I very much concur with the point that the hon. Member for Woking made about how these matters

are reported. It is often the case that when people know the full facts, which are not always or often reported, the picture is rather different.

I confirm what my hon. Friend the Member for Wrexham (Ian Lucas) said about legal aid. There was a significant change in the system in April 2000. The Access to Justice Act 1999 now means that most personal injury claims fall outside the scope of funding, with a few exceptions, clinical negligence cases being one example. The case of the gentleman who is suing Mr. Martin has obviously excited much attention, but he received limited funding to pursue a civil action before the change came into force. An individual in similar circumstances would no longer be able to receive funding. The hon. Member for Beaconsfield asked what could be done. The change in legal aid funding is one thing that has already been done, and means that such a circumstance will not arise again.

The hon. Member for Woking spoke extremely helpfully about reasonable force and self-defence. As he rightly said, what constitutes reasonable force will depend on the circumstances of each case. The courts can decide that only by having regard to all circumstances. What is reasonable force in any given situation will clearly depend on the nature of the threat. The level of force that could be used by a person to defend life is much greater than that which could be used to defend property. However, we all understand that in the heat of the moment it can be very hard for a householder to assess whether the person whom they see lurking in the grey light is a harmless thief or someone who has broken in to do them or their family serious injury.

It is for the courts to decide what was reasonable in all those circumstances and to have regard to and make allowance for what could be described as heat-of-the-moment panic. In considering the new clause, it may help the Committee to know that the courts have held that if a person does only what he honestly and instinctively thinks necessary to prevent a crime, that is potent evidence that reasonable defensive action was taken. What the law does not permit, of course, is aggression or angry retaliation.

Some hon. Members have been trying to answer the question that the hon. Member for Beaconsfield asked, and others have asked for more guidance to be laid down about what should be considered reasonable force. That may seem attractive at first sight, but for the reasons that I have mentioned, and the reasons that the hon. Member for Woking explained, it is very difficult to lay down definitive further guidance beyond the task that we have asked the courts to undertake, which is to have regard to all the circumstances before reaching a judgment.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs) 10:00, 4 March 2003

It would certainly be helpful in light of the Home Secretary's comments on the radio on Friday, if the Minister could let us know whether the Government have a view on whether something further should be done.

Photo of Hilary Benn Hilary Benn Parliamentary Under-Secretary (Home Office) (Minister for Prisons and Probation)

I was in an aeroplane over the Atlantic at the time, so the hon. Gentleman has an advantage over me in that I did not hear the words used by my

right hon. Friend the Home Secretary when he spoke on ''Any Questions?'' that the hon. Gentleman referred to. Following this morning's debate I will certainly study those comments with even greater care. I simply make the point that, having thought about the matter, I do not think that it is possible to lay something down in the form of further guidance that would be helpful in dealing with individual circumstances and individual cases.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I am especially grateful to the Minister for the way in which he is responding to the debate, because he has taken on board the need to consider the issue. I do not expect an answer now, but will the Minister undertake to consider the system in the criminal injuries compensation scheme, whereby the victim of an assault can recover damages from a public fund? I think that I am right in saying not only that contributory negligence applies in such situations but that on a preliminary hearing the Criminal Injuries Compensation Authority can knock a case out entirely on public policy grounds. Is there anything to be learned from that system? I do not expect that I am right, but will the Minister look at that?

Photo of Hilary Benn Hilary Benn Parliamentary Under-Secretary (Home Office) (Minister for Prisons and Probation)

I gladly undertake to reflect on the point that the hon. Gentleman raised in relation to the scheme. On what might be done, the hon. Member for Beaconsfield also talked about a preliminary hurdle to determine proportionality. I can see what he is trying to do, but it would be difficult to determine proportionality precisely without considering all the evidence. It is therefore hard to see how that could be done practically, by way of a preliminary hearing.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I am mindful of that. However, in the sorts of cases that we have been talking about, there has often been a criminal trial beforehand, and the facts of what happened have been fully ventilated. Disputes on the facts, rather than on the application of principle to those, are therefore unlikely. The issue is not only to do with proportionality. As my hon. Friend the Member for Woking said, whether the action should be allowed to go ahead at all is a question of public policy. The two issues merge into one in the most extreme examples of a criminal's contributory negligence.

Photo of Hilary Benn Hilary Benn Parliamentary Under-Secretary (Home Office) (Minister for Prisons and Probation)

I understand the hon. Gentleman's point. In so far as there are changes that should be made to the system in the interests of promoting public confidence and ensuring that the system works effectively, any Government would need to continue to reflect on that point. This morning's debate on the new clause has helpfully illustrated the complexity and the fact that there are not simple solutions, which is why the hon. Gentleman will not press the new clause to a vote. In the end, the most appropriate way of trying to deal with such cases is to have in mind all the circumstances. We must also bear in mind the powerful point that my hon. Friend the Member for Wellingborough made about the effect that contributory negligence can have on a judgment about what is sensible, if any damages are to be awarded. Having said that, I am grateful to the hon. Member for Beaconsfield for having raised the issue by way of the new clause.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

This has been a most interesting debate and I am grateful to all members of the Committee and to the Minister for their contributions. As I hope that I made clear in introducing the new clause, I am mindful of the fact that it touches on complex issues. I shall go away and reflect further on the comments that have been made. I remain of the view that something further could be done to give public reassurance in a way that is wholly in accordance with the principles that the hon. Member for Wrexham has identified, yet without taking the absolutist stance that the new clause was designed to suggest, although it is possible to take such a standpoint. For present purposes, however, I express my thanks to those who have contributed to this debate on an important issue, and I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.