Clause 1 - Amendment of the Criminal Law Act 1967

Criminal Law (Amendment) (Householder Protection) Bill – in a Public Bill Committee at 9:30 am on 5th April 2005.

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Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office 9:30 am, 5th April 2005

I beg to move amendment No. 10, in clause 1, page 1, line 8, leave out from ‘force’ to end of line 11 and insert

‘if the degree of force used was reasonable in the circumstances.’.

May I welcome you to the Chair, Mr. Pike? In light of your comments, I thank you for the huge contribution that you have made during your time in the House representing the proud town of Burnley, which has a football team with huge aspirations. You are a great supporter of that team. I also thank Mr. Cook, who acted speedily after our last attempt to debate the Bill to ensure that we had another opportunity to do so. I am sure that we will show in our deliberations that we intend to make speedy progress in consideration of the remaining matters.

Amendment No. 10 takes us to the heart of the Bill by proposing that we restore to the Bill the test of reasonableness that applies under section 3 of the Criminal Law Act 1967. The hon. Member for Newark (Patrick Mercer) is proposing to allow the use of force that is less than grossly disproportionate in defence of persons and property. The amendment takes us to the heart of the difference between the new test that he proposes and the test enshrined in the 1967 Act.

We should begin by reminding ourselves of matters on which the whole Committee agrees in relation to burglary, which is a horrendous experience for anyone to go through. It is a horrendous crime. People suffer enormous trauma when their house is burgled. We have shared personal experiences in the Committee, and our constituents have talked to us about it. We should particularly acknowledge that people feel vulnerable and under threat when their home is broken into in the middle of the night. There is no difference of opinion between hon. Members on that.

Nor is there any difference between us on the need for the householder to be able to act in self-defence with confidence that the law is on their side. We all acknowledge that the law needs to be understood and that the householder needs to be able to act with confidence. The key question is whether the proposal   at the heart of the Bill to institute the new test of less than grossly disproportionate gives the householder any more confidence.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

On a personal note, may I say how sad I am that you will be leaving the House, Mr. Pike?

Will the Minister outline the evidence that the public and home owners are more confident about dealing with burglars entering their homes after the so-called clarification issued by the Home Office? What evidence is there that they are more confident now than they were before the Home Office’s clarification?

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

There is emerging evidence that the public are generally more confident in relation to crime and believe that the police are acting more urgently on their behalf. In relation to this specific issue, it is too early to have any definitive evidence. However, the fact that the hon. Member for Newark has raised the issue in his private Member’s Bill, the fact that we have reviewed the matter, the fact that the leaflet has gone out, the fact that the Crown Prosecution Service and the police have urgently reviewed their procedures, and the publicity that has accompanied all of that will help to reassure the public that the existing law is on their side and that change is not required.

Photo of Hugo Swire Hugo Swire Shadow Minister (Culture, Media and Sport)

May I add my own plaudits for your chairmanship and your membership of this House, Mr. Pike? The Royal Marines—I represent the commando training camp at Lympstone—will also be losing a champion and a friend. I know that you have been a stalwart member of theirs and I see that you are wearing their tie.

Will the Minister concede that without this private Member’s Bill the legislation would not have been re-examined? It has taken an Opposition private Member’s Bill to get the Government to concentrate on this difficult issue.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

It has been acknowledged by the House generally and in Committee that the decision by the hon. Member for Newark to raise this issue in a private Member’s Bill has started a debate in the House and in the country. The Government have responded. My right hon. Friend the Prime Minister set in train a review, and the conclusion is that we believe that the current law is strong, robust and on the side of the householder. The disagreement is with the measure that the hon. Gentleman proposes. I acknowledge that the fact that he has raised the issue for debate and that we have discussed it is helpful. It has raised the profile of the issue. I hope that, even if he is not successful and the Bill does not pass into legislation, householders in all our constituencies will feel more confident in the law as it stands. In that sense, Parliament will have done a service to law and order and to confidence in it.

Photo of Patrick Mercer Patrick Mercer Shadow Minister (Homeland Security), Home Affairs

I bring this point to the Minister’s attention not as a criticism, but merely to help. I recently visited the police station in Dewsbury, which may be known to him. I spoke to the chief inspector there, who had received no notification   of the leaflets and did not know of their existence. There were none in his station and he was totally unaware of the Government’s efforts to explain how things stand in practice. Clearly, one of the main outlets for the leaflet in the town of Dewsbury was to be the police station, but there were no leaflets there and the police were completely—I use this term advisedly—ignorant of the subject. If we take Dewsbury as an example, I fail to see how people can be reassured by that.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

Clearly, I take the hon. Gentleman at his word. I think that, if the police officer in question were aware that he was visiting and knew the importance that he attaches to this issue, he could have done a bit of homework in advance and made himself aware of the issues. Every police station and police officer, of whatever rank, should know precisely what the law says and what the rights of householders are under current legislation. Initially, 100,000 leaflets were printed. Within a few days, another 200,000 were printed. As we all know, the leaflet is available on websites, through citizens advice bureaux and so on. There is no excuse for any police officer not knowing about the leaflet and the new guidance that has been issued. I hope that this debate will help to get the message out that we expect the police and the Crown Prosecution Service to have an active and thorough knowledge of these issues.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

I am grateful to the Minister for his generosity in taking so many interventions, including two from me. Will he answer two small points? First, were any of the leaflets distributed in Northern Ireland? We should bear it in mind that, in the absence of any Assembly, this place is responsible for the criminal law in Northern Ireland.

Secondly, will the Minister explain again the Home Office guidance? The Home Office issued a press release on 1 February, in which the Home Secretary is said to have said:

Ken McDonald, the Director of Public Prosecutions, has made it clear that householders will only be prosecuted if they use very excessive force in defending their home against intruders.”

However, the press release also states:

“The Attorney General Lord Goldsmith said ...‘The guidance makes clear that the law supports the rights of householders to protect themselves, their families and their property against intruders by the use of reasonable force.’”

In the same press release, there is a contradiction between the advice given by the DPP, which is that prosecutions will take place only if very excessive force is used, and the advice of the Attorney-General, who says something quite different. Can the Minister reconcile those two statements?

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I do not think that there is a contradiction in the press release. Stating that reasonable force is permitted acknowledges the law as it stands. Force must be reasonable. As long as it is reasonable, the householder is acting with the full force of the law on their side. Ken Macdonald’s use of the phrase “very excessive” is important. We must recognise the emphasis that he is placing on the practical judgment that he has made on the question of   prosecution. In practice, reasonable force can sometimes mean considerable force. I shall come to that later in my speech. “Reasonable” can mean “considerable”. In that press release, Ken Macdonald is trying to get across the fact that only very excessive action would be outwith the law. I therefore do not see a contradiction between the two. One is trying to encapsulate the current legislation and the other is trying to state what the judgment would be in practice. Taken together, they should reinforce the confidence of individual householders.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I would like nothing more than to give way to hon. Members, so that they can ask questions.

Photo of Chris Grayling Chris Grayling Shadow Minister (Education)

I am sure that the Minister understands that courts of law can take decisions based on a very fine judgment—on their interpretation of the law as set out by Parliament and by our Law Officers. The Minister has just described a situation in which the DPP might decide to go ahead with a prosecution on the basis that, in the judgment of the CPS, very excessive force was used. However, the court could judge that analysis to be wrong and decide that the force that was used was not very excessive, but went slightly beyond reasonable. The Minister is potentially creating a world of legal confusion.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

There is no confusion at all. The CPS has to make a decision, based on the evidence that it has, on whether a prosecution should take place. It has to decide whether a particular case is likely to be proved, and whether it is in the public interest to proceed with it. The DPP has made it clear that, for a prosecution even to begin, there would have to have been an excessive use of force. When that judgment has been made—in a very small number of cases, there have been prosecutions where the force was felt to have been excessive—it is then for the court to decide. If the court takes a different view from the prosecutor—that the force used was reasonable—the person will be acquitted. Indeed, in about half the cases that we know of, that is precisely what happened. Our justice system stands or falls on the view of the court and the jury as to whether a particular case is proved.

I therefore do not see any contradiction. It is the job of the Crown prosecutor to issue the guidance, so as to make clear the circumstances in which a prosecution would be brought. The court should then take a decision on whether a case is proved. There is not confusion but clarity about what the law says and about what the CPS will do in practice.

Photo of Frank Field Frank Field Labour, Birkenhead

If we look at the matter from the point of view of the person whose property is being burgled, rather than considering what the police or the courts might think, does the Minister not agree that most Labour voters are like all other voters in thinking it unreasonable that anyone should enter their property? Those of us who have been burgled feel very unreasonable in tackling the person that so affronts us in that way. If there is any   criticism of the Bill, which I wholeheartedly support, it is that it is not tough enough on the burglar—it is certainly not too tough.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

Again, I make it clear that my starting point in the consideration of the Bill is to acknowledge the horrendous experience that people have when their home is burgled. It is unreasonable, illegal and outrageous for people to go into other people’s homes to threaten them, to steal their property and to violate their home. That is completely wrong and unreasonable. From the review that took place and from our debates, it has clearly emerged that the use of reasonable force in such circumstances can imply the use of considerable force. Indeed, in the leaflet, the question is asked, “What if the intruder dies?” Prosecution is not automatic even if the intruder dies, because the use of force in those circumstances might need to be considerable to deal with the threat posed by that intruder.

Photo of Hugo Swire Hugo Swire Shadow Minister (Culture, Media and Sport) 9:45 am, 5th April 2005

Does the Minister not concede that if he were to agree with my hon. and gallant Friend’s Bill, that would go some way towards addressing a widespread belief that the Government, seven years after saying that they would be tough on crime and tough on the causes of crime, are soft on the perpetrators of crime and tough on the victims of crime? If the Minister would concede the salient points that my hon. and gallant Friend has made throughout, and that the right hon. Member for Birkenhead (Mr. Field) made just now, we would all be winners.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I do not accept that point of view. I have made it absolutely clear that the Government regard all crime, particularly burglary and personal attack, as horrendous and a high priority. As a result of the actions that we have taken and the activities of the police, burglaries have gone down by 31 per cent. since 1999. People are less likely to be a victim of burglary than at any time in the past 20 years. We take that seriously: we have acted on the problem and have begun to see a real difference. Just because we do not accept the arguments of the hon. Member for Newark does not mean that we do not take this seriously.

I wish to make progress now, Mr. Pike—I am sure that you will be pleased to hear that—but I look forward to hearing the hon. Member for Newark explain how his new definition will take us any further forward in practice. As I shall explain, the issue of reasonableness, and its understanding within the law, makes it clear that the law is on the side of the householder.

Let me list some advantages in retaining the current use of reasonableness, which would be the effect of my amendment. First, the term “reasonable” is understood by the Crown Prosecution Service, the police and the whole justice system. It has been developed through common law and is enshrined in the Criminal Law Act 1967. It is worth reading into the record the definition in that Act:

“A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.”

Force is reasonable if it is used in preventing a crime or detaining a person who has perpetrated a crime. The test of reasonableness is enshrined in our legislation and is understood by the justice system.

Secondly—this is a critical point that we have already debated, both on Second Reading and earlier in Committee—the test of reasonableness provides clarity and consistency on what happens inside or outside someone’s home. We used the example of a young woman subjected to a horrendous sexual attack. Wherever she is—in her home or in a public place—she has the right to use all reasonable force necessary to deal with her assailant. We certainly do not want different rules applying inside or outside, and adding confusion to the law. She should be able to use considerable force, which in those circumstances would be reasonable, to deal with her assailant. I am genuinely concerned that introducing a new test for what happens inside a home, as opposed to outside in the community, would produce confusion in the law.

Thirdly—I have made this point, but shall repeat it—a response can be at the same time reasonable and considerable. If a householder is faced with a giant of a man—6 ft 5 in tall—who is clearly ready to use considerable force, the use of force to deal with that assailant would have to be considerable. However, it could still be reasonable in the eyes of the law. As is clear from the definition that I gave, reasonable behaviour could allow someone to be proactive and go on the attack. They do not have to wait to be attacked by the assailant, and can take action to try to prevent them from being attacked. That is all made clear in the Crown Prosecution Service guidance and by the Director of Public Prosecutions, whose comments are worth reading into the record. He said:

“the law is on the side of householders. Being burgled is a frightening experience and householders who react instinctively and attack intruders will only be prosecuted if they use very excessive force. It is only in the most extreme circumstances that householders are prosecuted for violence against burglars.”

It should be hugely reassuring that not only does reasonableness in the eyes of the law mean that someone can use considerable force if necessary, but that those in charge of our prosecution service understand that.

The Committee understands the need for householders to feel confident that the law is on their side, and if that emerges from our debates, it will be a useful product of our deliberations. The leaflet published by the Crown Prosecution Service and the police has helped to clarify matters. Huge numbers of copies of the leaflet are available from the Home Office website on the internet and from local and national advice agencies, and it makes it absolutely clear that the law is on the side of the householder.

I repeat that because of the Government’s actions and because the police treat it as a high priority, the level of burglary has fallen by 31 per cent. since 1999. People are less likely to be a victim of burglary than at any time over the past 20 years, and that is an   important step forward, but the unthinkable may happen and someone’s house may be burgled during the dead of night or in daytime. It is important that the householder knows that, if that happens, the law is on their side.

In conclusion, I can do no better than to quote Tony Martin’s barrister, Anthony Scrivener, who said that the law is

“simple and ... overwhelmingly in favour of the householder”.

Given the representations that he made on behalf of his client, for him to conclude that should leave us in no doubt that a test of reasonableness is on the side of the householder. Therefore, I want reasonableness to be retained instead of adopting the new test proposed by the hon. Member for Newark.

Photo of Patrick Mercer Patrick Mercer Shadow Minister (Homeland Security), Home Affairs

May I welcome you, Mr. Pike, to the Chair and thank you for all that you have done in a number of capacities? I particularly thank you for standing in today to help us through what I trust will be the last phase of the Committee. I should also point out that I know how much the Royal Marines appreciate your support and all that you have done for that noble and gallant corps over the years.

I thank Labour Members for being here and the Minister for his civilised and, as always, urbane presentation. It is also nice to see such crowded Opposition Benches. I wish that we had not had to come back for this sitting. Had the Government been able to swell their numbers slightly at our last sitting, we would not be here, but I am most grateful to everybody for coming to discuss the Bill.

The Minister carefully and clearly made the point that his amendment goes to the heart of my Bill. It does not do so at all; it eviscerates and tears the guts from my Bill, which is exactly what he intends to achieve. I shall be extremely brief because I laid out my stall on Second Reading. He is familiar with my arguments, and I will merely make one or two points that I hope will make a clear and compelling case for why the test of “grossly disproportionate” must be superimposed over the idea of reasonable force.

First and foremost, the phrase “grossly disproportionate”, as the Minister well knows, has been borrowed from legislation in civil law. We already have the test of gross disproportionality in civil law, and he will be fully aware that that was brought in on the back of the Tony Martin case. He has used the Tony Martin case helpfully. I do not want to go into it in too much detail, but I wonder how the quote from Tony Martin’s barrister, which the Minister used, compares with the comment by Brendon Fearon, one of the perpetrators, who was not shot, killed and executed—I use the phrase advisedly—but shot and wounded. He comes from Newark and is one of my constituents. When the Bill first saw the light of day, he was interviewed by that noble organ the Newark Advertiser.

Photo of Mr Peter Pike Mr Peter Pike Labour, Burnley

We buy it every week.

Photo of Patrick Mercer Patrick Mercer Shadow Minister (Homeland Security), Home Affairs

I am most grateful. I am sure that that will swell the sales hugely.

When Brendon Fearon was interviewed about the Bill, he said—I am paraphrasing—that a change in the law would deter the sort of acts in which he had been involved. He is a convicted criminal, saying that if the law is changed in favour of the householder or shop owner, rather than the intruder or burglar, he would regard that as a distinct deterrent.

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

What did Brendon Fearon mean by that? Did he mean that the law should be changed to allow a householder to kill a burglar, or that he would not have attempted a burglary if a householder could kill a burglar? That is not what the hon. Gentleman’s Bill is about, so what does he think Brendon Fearon meant?

Photo of Patrick Mercer Patrick Mercer Shadow Minister (Homeland Security), Home Affairs

Clearly, it is difficult for me to put words in the mouth of Brendon Fearon, and many other people have observed that difficulty, too. However, I believe he meant that the law is currently biased in favour of the burglar or intruder, and that the risk of imprisonment or physical harm lies with the householder or shop owner, rather than with the burglar. I believe that he meant that if the law is changed, that would form a deterrent.

I have received huge support from the police across the nation, and they have made it clear that if the Bill is changed, and the test of gross disproportionality is moved from civil to criminal law, and the same area of law has a single test rather then two separate tests, that would deter burglary. If it does so, the concomitant would be to deter the likelihood of bloody confrontation within the house.

Photo of Kevan Jones Kevan Jones Labour, North Durham

In the Tony Martin case, surely Mr. Fearon was traumatised by the events. The fact is that Mr. Martin stuck a shotgun in somebody’s back at point-blank range and pulled the trigger. That may deter that individual from intruding again, but surely killing an innocent person in those circumstances does not make it right in a just society.

Photo of Patrick Mercer Patrick Mercer Shadow Minister (Homeland Security), Home Affairs

I could not agree more. I am rarely in disagreement with the hon. Gentleman, and I agree with him now, as usual. If he had attended the previous Committee sitting, he would have heard me say the same thing, but the Bill would not give Tony Martin a defence in any shape or form. Had Bill been an Act and had Tony Martin been tried under it, he would have been found guilty of disproportionate behaviour that was way beyond reasonable force.

I refer the Minister to the leaflet and repeat that it has not been properly distributed. The Home Office has a habit of failing to distribute leaflets correctly, such as the counter-terrorism leaflet, and I like to think that I played a small part in provoking the Government to issue that last summer. However, 1.5 million households, and police stations up and down the country, have yet to receive this leaflet.

The Minister highlighted the column of the leaflet with the heading:

“What if the intruder dies?”

The bottom line of the column says:

“You would be acting with very excessive and gratuitous force and could be prosecuted.”

If the phrase “reasonable force” is adequate, why is that not in the leaflet, and why did the new Metropolitan Police Commissioner say on the “Today” programme on 2 February:

“I’m not sure that the wording does go far enough ... I thought reasonableness was quite a difficult concept at 4 o’clock in the morning in your kitchen. Whereas, something as stark as gross disproportionality did seem to me to be clearer”?

That is England’s senior police officer. He clearly supported a change in the law when he said:

“something as stark as gross disproportionality did seem to me to be clearer.”

I find that terribly compelling. Convicted criminals, professional police officers and an overwhelming number of people responding to polls seem to support what I am saying. The Minister’s duty is to listen to the voice of the people, and the voice of the people has made it clear that these changes must occur.

Photo of Frank Field Frank Field Labour, Birkenhead 10:00 am, 5th April 2005

The hon. Gentleman talks about how the vast majority of people view his Bill. Does he not accept that the vast majority of people actually support Tony Martin’s stance?

Photo of Patrick Mercer Patrick Mercer Shadow Minister (Homeland Security), Home Affairs

That is a fair point. There was a widespread feeling in Newark, which was at the heart of the case, that Tony Martin behaved correctly—until the case was explained in detail. My reaction when I first heard about what was happening with Tony Martin was to say, “The law should be firmly behind him.” However, when the details were explained to me—this is why I have used the word “executed” in relation to Fred Barras—I quickly realised that Mr. Martin had behaved with gross disproportionality. If people understood the precise details of the case, they would agree.

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

I shall be brief. I support the Government on the amendment. There is a simple difference between the test of reasonableness, which my hon. Friend the Minister outlined and which can, as he said, include considerable force, and the test of “grossly disproportionate”, which is in the Bill. The problem is that, if a judge has to consider the phrase “grossly disproportionate”, “disproportionate” can become the norm. I know that we are dancing on a linguistic pin, but there is an important difference between a test of reasonableness and a test of “grossly disproportionate”.

Clearly, during a burglary, it is difficult to judge what is reasonable, but at least that is taken into account in the guidelines and in the way in which they will be interpreted by the police and the CPS. It would be wrong to have “disproportionate” as the norm. That is why I favour the Government’s position on the central matter of a test of reasonableness. That is better in the circumstances that we are discussing.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

May I pick up two points that were made by the hon. Member for Newark? The first is his partial quoting from the leaflet under the section headed

“What if the intruder dies?”

He quoted the phrase at the bottom of that section:

“you would be acting with very excessive and gratuitous force and could be prosecuted.”

It is only fair to make the Committee aware that he failed to quote what precedes that phrase: examples in which someone could be deemed to have used excessive force. The first example is:

“having knocked someone unconscious, you then decided to further hurt or kill them to punish them”.

In other words, having controlled someone, the person takes a further step and punishes them for what they have done. However someone one may feel about that, once they have restrained the burglar, it is for the law to come into play to ensure that a prosecution goes ahead because a burglary has taken place. Inflicting a punishment in the ways described is not justifiable or acceptable in our society.

The next example is:

“you knew of an intended intruder and set a trap to hurt or to kill them rather than involve the police”.

We have all maintained throughout our deliberations that it is always better to prevent a burglary than to have to deal with the consequences. It is not acceptable if a householder knows that someone intends to break into their house and sets a trap, rather than telling the police. Those were just two examples following a series of clear statements by the Crown Prosecution Service and the police about how the law operates in the interests of the householder and the fact that they can use considerable force in circumstances where that is reasonable. It is only fair to place that on the record.

The second issue concerns the Metropolitan Police Commissioner’s comments about whether the current law is adequate. We have had this debate before and I do not intend to go over it again now. All I know is that the commissioner is on the record as saying that he is happy with the present law. However, the hon. Gentleman has raised an issue today that I will look into. Do police stations up and down the country have the leaflet on display and is it easily available to members of the public who may come into the police station? In my view, it has been made clear that the leaflet should be easily available. I believe that many police stations have the leaflet available. I will speak to the Minister for Crime Reduction, Policing and Community Safety and convey the Committee’s desire to ensure that the information is available to the public. I believe that it probably is. If there are some isolated instances where it is not, we should deal with that.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

We may have a further opportunity to get into this territory. The hon. Lady and I have shared many debates on such matters. We know that the Bill is an amendment to an Act that operates in England   and Wales and not in Northern Ireland. However, there is a parallel provision in Northern Ireland: the key words “in Northern Ireland” are in brackets. It is a separate piece of legislation and it is a matter for the authorities in Northern Ireland, not the Home Office.

A burglary in Northern Ireland is every bit as horrendous as a burglary anywhere else. What is important is that the provisions are made within the relevant legislation. When I refer to up and down the country, I am referring to England and Wales and not to Northern Ireland, but I freely acknowledge the concerns that the hon. Lady rightly expresses. This is a matter of concern to her constituents and to Northern Ireland. I know that these issues are taken seriously by Northern Ireland Ministers, too.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

We have been discussing reasonableness and what is grossly disproportionate. I would dread to think that, even if we had a Northern Ireland Office responsible for criminal justice in Northern Ireland, reasonableness in the circumstances would be differently interpreted by police officers in Northern Ireland as compared with anywhere else in the United Kingdom.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

In a way, the hon. Lady is arguing on my side. She is arguing for having the test of reasonableness and not having different tests inside a house and outside a house, or different tests in Northern Ireland and England and Wales. The more we can have a standard and understood test in which people can have confidence, the better.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

With the greatest respect to the Minister, I am on the opposite side to him. I support the Bill because, although he has nicely argued that reasonableness is understood by the justice system and the judicial process, it is not understood by householders. While I do not think that the leaflet is particularly helpful, we have no leaflet in Northern Ireland, let alone one that tries to go some way to explain to ordinary people in their homes what is reasonable force. It is a very serious issue in Northern Ireland.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I acknowledge the seriousness of the issue. The test of reasonableness is used in Northern Ireland under legislation that is specific to Northern Ireland. I cannot comment on the appropriateness or the availability of advice, leaflets and so on in Northern Ireland. That is not a matter for me. Again, the hon. Lady does her constituents a huge service by raising the profile of the issues. She does that assiduously and I acknowledge that, but she is taking me into territory for which I do not have responsibility. I ask her to accept that.

Having made those comments, I do not intend to press the amendment to a vote. As the hon. Member for Newark has indicated, it takes us to the heart of the Bill, but there will be other opportunities for us to express our views. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

I beg to move amendment No. 3, in clause 1, page 1, leave out lines 12 and 13.

I add my tribute to you, Mr. Pike, in what may be your last Committee. I have regularly visited Burnley, and I know what high esteem you are held in there. I also recall that we were both elected in 1983—some esteemed people came here in 1983. I regularly burned the midnight oil during my work and, when I left the House, invariably, only one person was still working and that was you, Mr. Pike. You have worked extremely hard for your constituency and for Parliament.

Amendment No. 3 would remove the provision:

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

That basically says that the Attorney-General must look at all cases in which there may be a prosecution to consider the tests in the Bill of whether the force was grossly disproportionate and whether that was apparent to the person who used it. The two lines are superfluous, because the Attorney-General already has a lot of influence and, if he chooses, can use that influence and make his legal expertise known to the Crown Prosecution Service and to the Director of Public Prosecutions. There does not seem to be any need for him to be directly involved in the way the Bill proposes.

We already have guidelines from the police and the DPP, which we have talked about, that say that they will consider swiftly and sympathetically the situation of the householder, and not the burglar—I agree with that. A quick decision is promised, involving the senior policing investigator and leading lawyers in the DPP, who will be in charge in such cases, so involving the Attorney-General after that seems unnecessary and would slow the process. A decision to prosecute would be left hanging over the householder when it could be out of the way if the Attorney-General were not involved.

The Attorney-General does not currently have such a role, and it would be an additional burden on him. He is already busy. For the sake of the Committee—I do not want to be accused of filibustering—I will not talk about his role in advising the Government, for example, on the legality of going to war, but he has that role. If the Bill dealing with religious hatred is passed, he will also have a role in that no prosecution would take place unless he has had a say, although that Bill might be blocked by the Conservative and the Liberals. The Attorney-General also has a specific role in cases where there are two life sentences. He can get involved and bring such cases back before a court. I will not go through the whole list that has been provided to me, but he has many functions to perform.

Both the evidence and public interest factor will already have been taken into account by the police and the DPP, with senior officers involved. As I said on Second Reading, it is not right for the matter to be swept under the carpet. There must be a proper investigation. If nothing else, a coroners court would hear the case if a burglar were killed. That is something that the family of that person may well want, so there has to be a proper investigation.

If it really is a question of the use of excessive or unreasonable force—even if it were grossly disproportionate, as in the case cited by the Minister of someone punishing someone they already had under control—it is right and proper for the senior officers of the DPP and the Crown Prosecution Service, or the police, at an earlier stage, to take that decision. The Attorney-General is not needed to deal with such a case. He can already use his influence and there does not need to be a formal role. As with my other amendment, this is a probing amendment. I have said why those lines are not necessary and I am interested to hear what the hon. Member for Newark has to say to justify them.

Photo of Patrick Mercer Patrick Mercer Shadow Minister (Homeland Security), Home Affairs 10:15 am, 5th April 2005

Clearly, there are two strands to the Bill. The first deals with reasonable force versus grossly disproportionate force. The second strand, which is every bit as complementary, might not be as legalistic in its phrasing, but it is every bit as important, and it would ensure that those who face prosecution only do so when there is no alternative.

A little under two years ago, we were burgled in rural Nottinghamshire, which is not unusual. Mercifully, neither my wife nor myself were in at the time. We lost a certain amount of property, but, mercifully, no one was hurt. It did not matter terribly, but the fact remained that I spend a great deal of time in Westminster and my wife spends a great deal of time at home in Nottinghamshire by herself. I said to her, “If this happens, you must make sure that you confront the burglar and deal with him or her.” You do not know my wife, Mr. Pike, but I promise you that she is no shrinking violet. She is married to me, so she cannot be. I admire her physical courage.

Photo of Patrick Mercer Patrick Mercer Shadow Minister (Homeland Security), Home Affairs

My hon. Friend encourages me, as he does know my wife.

Having said to my wife to take that action, I asked her to explain why she would not. She said, “I am quite clear about this. No matter how the law is framed at the moment, no matter whether we have to prove reasonable or unreasonable force, I know quite well that if I pick up the riot baton that you used with such effect in Northern Ireland during many tours over there and use it on an intruder, I will, at best, face many months of investigation. I will be arrested, I will go to court and I will have my life thoroughly disrupted.” During subsequent conversations, we discovered that it was extremely unlikely that she would receive a sentence—not impossible, but unlikely—but her opinion was reinforced. She said, “I absolutely will not confront an intruder because I know that I will be tacitly punished.”

Clearly, this is all theoretical. Practically, let me cite the case of Mr. Charlie Mayall from York drive in Newark. An intruder came into his property, and he thumped that intruder with a piece of wood. After five months of investigations and four court appearances, and after being handcuffed and taken to the police   station in Newark, he was eventually told that there was no case against him and not enough evidence to prosecute him. Proposed new subsection (1A)(b) would not ensure that that sort of thing ceases entirely, because every case will have to be investigated, but the number of people who go through that informal, unintentional punishment would be reduced dramatically.

On Second Reading, there was some to-ing and fro-ing between the Minister and myself about the investigative work done by several newspapers. The Crown Prosecution Service demonstrated that there had been only 11 prosecutions in 15 years. I do not want to argue that case, although the analysis was flawed, and the CPS went on to say that its list was never accurate. However, it does not account for people such as Mr. Charlie Mayall who suffer at the hands of the law, not because they are eventually found guilty and sent to prison, but simply because the process as it stands is too cumbersome and is weighted in favour of the intruder and the burglar, not the householder and the shop owner.

We have therefore clearly and simply introduced the proposal that such cases would be brought before the Attorney-General, one of our most senior law officers and an eminent lawyer, so that he or she can decide which cases go to trial. That would have several effects. First, it would reassure the public. It is in line both with the introduction of the phrase “grossly disproportionate”, which brings criminal law into line with civil law, and with our endeavours, through the Bill, to reassure the householder. People would feel much more certain that they could deal with intruders without necessarily having to go through a painful process of legal ins and outs before being dismissed by a judge and jury.

Secondly, the proposal would ease the burden on the police force. I come from Nottinghamshire and I am acutely aware of the overstretched resources of my constabulary. I do not want to rehearse a completely different argument, but we have few enough policemen in my county to deal with the problems that we face. If the clause lessens the burden of investigation that falls on them, that will be a good thing.

Lastly, the Crown Prosecution Service is also busy. If we can lessen the number of cases with which it has to deal, it will be able to concentrate on serious matters and will not have to impose on the police to carry out needless investigations that end up, more often than not, wasting time and imposing stress.

The issue is very simple. I understand exactly the point made by the hon. Member for Leyton and Wanstead (Harry Cohen), but a line needs to be drawn in such cases, not by the Crown Prosecution Service or the Director of Public Prosecutions, but by the Attorney-General. Despite the quotations that others and I gave from the Attorney-General, I have absolute respect for that gentleman and I am absolutely certain that if his judgment is brought to bear, the number of cases will be lessened considerably. If that is the case, it will be good for the people, good for the police   service and good for the whole criminal law process, but it will be thoroughly bad for any burglar or intruder who gets involved in such an incident.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I pay tribute to my hon. Friend the Member for Leyton and Wanstead for moving the amendment, because it raises important issues of principle and practical efficiency, and it is right that the Committee should deliberate on them as part of its overall consideration of the Bill.

On the point made by the hon. Member for Newark about the Crown Prosecution Service survey, this may be the last opportunity clearly to set out on the record the nature of that survey. It was never intended to be an exhaustive analysis. It was an informal survey to capture in rough and round figures the number of cases in which prosecutions had been considered or carried out over the past 15 years. For the record, the CPS found that it had considered whether to prosecute an occupier for assaulting an intruder in 26 cases over the past 15 years. In 15 of the 26 cases, the occupier was not prosecuted, on the basis that they had a sustainable claim to have acted in self-defence. In 11 of the 26 cases, there was a prosecution. Five led to a conviction, five to acquittal and in one case the outcome could not be recalled. Careful deliberation by the Crown Prosecution Service led to more than half the number of cases not proceeding to prosecution. The justice system worked properly and the jury decided to acquit in half the cases where there was a prosecution. That is the nature of the informal survey that was carried out. I hope that it is helpful.

Photo of Patrick Mercer Patrick Mercer Shadow Minister (Homeland Security), Home Affairs

It is helpful and is exactly the sort of comment that I expect from the Minister because it is transparent, honest and straightforward. What worries me is that the Crown Prosecution Service, quoted in The Sunday Telegraph on 16 January, said:

“We never said our list was accurate.”

The Minister referred to an informal trawl and a rough guide—I think those were his words. Why then did the Home Secretary himself hold up the figures as a talisman—a “nuclear deterrent” to the Bill—and place so much faith and so much trust in an informal trawl and a rough guide?

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

For the simple reason that it was very important to establish at an early stage in the review how extensive the perceived problem might be. Were there hundreds of such cases, or thousands? What was the scale of the problem? From that quick survey, which was never described as exhaustive—the results were not described as 100 per cent. accurate because it was a quick look at a system going back over 15 years—we found only 26 cases in which prosecution had even been considered, and only 11 cases in which it had actually been carried out. Regardless of whether more cases would be discovered with a more exhaustive and extensive search, the indication is clear that there are only a very small number of cases. That is the Home Secretary’s point, and in that he is entirely accurate.

My hon. Friend the Member for Leyton and Wanstead said he hoped that his proposal would reduce the number of cases. My argument is that the   number is already small and people should have confidence that the Crown Prosecution Service and the police understand that the current law is on their side. I genuinely hope that that gives hon. Members some reassurance that the number of cases in which a prosecution is even considered is already very small indeed.

I accept, however, that delay is a matter of concern. The hon. Member for Newark raised one case in particular that highlighted that. It was therefore important that when the Crown Prosecution Service and the police issued the new guidance in conjunction with the leaflet, they made it clear that such delay is not acceptable. In future, any possible consideration of prosecution will be carried out by a very senior officer in the CPS.

I hope our constituents will be reassured that the issues will be dealt with quickly by senior and experienced people so that something that might happen in isolated circumstances—someone who ultimately is not prosecuted is, none the less, subject to months of uncertainty and delay—does not compound the trauma that a person may already have suffered as a result of the burglary. That is a fair point, but it has been taken up in a practical way in the guidance.

The provision is unnecessary. The code for Crown prosecutors sets out clearly the two-stage process in which possible prosecutions are considered: first, the evidential test—whether there is the evidence to sustain a possible prosecution—and, secondly, the public interest test, both of which are outlined in detail in the code.

The position is clear from the number of acquittals in cases where prosecutions have taken place. We have the assurance that the jury has the final say. Moreover, in the Crown court, the judge could stop a trial if it reached a point at which it was clear that the prosecution was not sustainable. My hon. Friend the Member for Leyton and Wanstead has persuaded me, and I hope that he has also persuaded the hon. Member for Newark.

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead 10:30 am, 5th April 2005

I am grateful to the Minister for his comments. They confirm my view that the proposed new subsection is superfluous. The hon. Member for Newark was eloquent, as always, and made a good case, but I am not wholly convinced by it, especially after hearing the Minister’s remarks. I said that the amendment was probing in nature, and I am grateful that the arguments have been put before the Committee and are on the record. They might be the subject of future consideration by this House or the House of Lords, or might be included in a future Bill. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 ordered to stand part of the Bill.