Clause 30 - Use of force in self-defence at place of residence

Crime and Courts Bill [Lords] – in a Public Bill Committee at 8:55 am on 5th February 2013.

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Photo of Shailesh Vara Shailesh Vara Conservative, North West Cambridgeshire 8:55 am, 5th February 2013

I beg to move amendment 81, in clause 30, page 32, line 13, at end insert—

‘(8G) For the avoidance of doubt, the provisions of subsection (5A) will apply to any person who, when V enters the building as a trespasser and it is necessary to use force against V, is present in any of the premises covered by subsections (8A), (8B) or (8C), whether or not that person dwells in said premises.’.

It is a pleasure to serve on the Committee with you as Chair, Mr Caton. I declare an interest as a non-practising solicitor. Clause 30 is of considerable importance and over the years has received much attention and debate. Members will be aware that in 2006 I introduced a private Member’s Bill with cross-party support to achieve  precisely what clause 30 now proposes. Of course, others before me also sought to make the same amendment. So I welcome this clause, but it would be enhanced and improved and save further court cases in future if amendment 81 were made. Without the amendment we have a situation where if a householder is attacked in his or her house, the standard of force that can be used is raised so that they must not use a grossly disproportionate element of force, as opposed to the present reasonableness.

If someone is in the house with the householder—let us say a carpenter doing some work—the burglar enters and the carpenter helps the householder overpower the burglar, then the carpenter will also be subject to the higher test. That is reasonable. However, the clause as drafted also provides for mixed use. Where you have, for example, a corner shop with a flat above, then if the shop owner is attacked in his shop, he will be subject to the higher test. But if the same carpenter who was with him in his own house when the house was judged as being separate is now in the shop fitting some shelves and again helps the shopkeeper overpower a burglar, that carpenter will be subject to a lower test. Basically, in a home the householder has a higher test, plus any third party. In a mixed dwelling, the owner of the flat above has the higher test, but if the same person who would have been with him in his own home helps him in the same circumstances, he is subject to the lower test. That clearly is an anomaly,

The Minister will doubtless argue that there has to be a limit somewhere. I agree with him. There has to be a limit, and in fact the legislation as drafted recognises that. It recognises a geographical limit, which is the dwelling or a commercial premises associated with the dwelling. It is not the same as saying that if the householder or the shop owner were in a park accompanied by somebody else, there would be a higher test, because clearly there would be no dwelling associated with it. So given that we have one scenario where a third party has a higher test and another scenario associated with a dwelling where a third party has a lower test, I would have thought it eminently sensible that the test should be altered so that everyone is covered.

Let me give another example. I am a householder and live in a house separate from my business and my son visits me. If both of us were to be attacked, we are both subject to the higher test. However, I then have a corner shop and live above it and my son lives away from me, visits and decides to stand behind the counter and help me. If we are then attacked and my son helps me, then he would be subject to the lower “reasonable” test, whilst I would be subject to the higher “grossly disproportionate” test. The same circumstances, a little difference in where it is. One person of the household is protected, but not the other, because of the location.

It is a relatively straightforward amendment. I very much hope that the Minister will give it serious consideration, because it simply tidies up the law. I fear that if the law is not amended this anomaly will have to be picked up at a future time. It would remain unfinished business, and would simply have to be sorted out at a later date when it could very easily be tidied up now.

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice)

I have some remarks addressing clause 30 more generally. Would now be an appropriate time to make those remarks?

Photo of Martin Caton Martin Caton Labour, Gower

If the rest of the Committee are happy not to have a stand part debate, then I am happy for you to make your contribution now.

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice)

Thank you for your guidance, Mr Caton. Amendment 81 makes a lot of sense, given what the Government seem to want to do with clause 30. The hon. Gentleman made his case very clearly, and it does seem that if I was in my neighbours’ house and they were being burgled perhaps I might feel moved to intervene, and I should be able to use self-defence as my defence. That makes sense to Opposition Members.

On clause 30 more generally, the Minister knows that considerable concern was expressed by Members on both sides of the House, including some members of the Cabinet. Significantly, concerns were expressed by the Director of Public Prosecutions and other prominent members of the legal profession. However, I think it would be remiss if we did not air those concerns when considering this clause.

For clarity, clause 30 deals with Government proposals to make changes to the law on self-defence in the case of burglary. This was referred to on Second Reading. Burglary is an absolutely dreadful, awful crime. To have your home invaded—or even your place of work, if you happen to be there—is a terrible and personally distressing experience. That is undeniable. People can find themselves in the most terrifying situations, and if someone is forced to confront an intruder in their own home they need to know that they have the right to protect themselves. I think most of us are aware of how we would feel if we had to protect a member of our family.

That is why Labour agreed in 2008 to strengthen the law for victims in that regard, and that assurance was given to victims of burglary. In 2008 Labour placed on a statutory footing the right of victims to use what was then called reasonable force to defend their home. We should understand that the definition of what force is reasonable is not decided in a sort of dispassionate risk assessment the following morning. That is recognised in the law; the Crown Prosecution Service and the Association of Chief Police Officers describe reasonable force to be,

“what you honestly and instinctively believe is necessary in the heat of the moment”.

That is therefore already recognised. The current law provides a defence for victims who, in what are recognised to be traumatic circumstances, have found themselves needing to use force to protect themselves, their home or their loved ones.

The Secretary of State was warned explicitly by his predecessor, the right hon. and learned Member for Rushcliffe (Mr Clarke), not to oversell this policy and this clause. That is probably quite sound advice, because the question we must ask is what difference this will actually make. We are absolutely in favour of clear, robust protection for victims in these cases, but it seems to be the opinion in most quarters who should know about these things that that is what we already have. To give an example, Keir Starmer, the Director of Public Prosecutions, said that the current law worked very well. The Lord Chief Justice, Lord Judge, noted that the current law allows home owners great protection. In fact, some of the Government’s own Cabinet members have argued that the proposals are unnecessary, and that sensible people will no doubt point out that they  cannot think of a successful prosecution in a genuine self-defence case, and conclude that the public now have a reasonable confidence in the state of the law.

Paul Mendelle, QC, the previous chairman of the Criminal Bar Association, noted that the current law works well, and importantly, is well understood by juries. He continued:

“Leave it alone and stop playing politics with the law.”

Could it be the case, as the new chair of the Criminal Bar Association, Michael Turner, QC, also seems to think, that this is simply a vote-catcher? There is nothing wrong with that.

Photo of Shailesh Vara Shailesh Vara Conservative, North West Cambridgeshire

The hon. Lady is making some powerful points, but while she lists all the people that she has, what does she say to the fact that successive Metropolitan Police Commissioners feel that the law should be enhanced in the way that the Government propose?

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice)

I would point them in the direction of the new police guidance that was issued at the end of last year, which clarifies advice to police officers regarding where prosecutions should and should not be made. It even advises when victims should not be detained in order to make statements; they should be able to do that in their own homes. That is a far more sensible approach. The new advice to police officers clarifies the situation very well, so I would go back to them and see whether they maintain that point of view.

Photo of Shailesh Vara Shailesh Vara Conservative, North West Cambridgeshire

I would like to think that the hon. Lady would agree that it is better to have clarity in the law than for an officer to have to go away to look at guidelines. There has to be clarity, and that is what this is seeking to do. When we deal with theft, there either is theft or there is not; police officers do not go running to guidebooks. Likewise in this situation, they should have clarity.

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice)

That is a ridiculous point because there already is clarity in the law, and officers sometimes need to refer to guidelines, as the hon. Member should know. Part of their training would be to make them aware of these particular issues, so I do not quite understand what the hon. Member is trying to say. The guidance is there and it is very clear. I do not think police officers would have any trouble getting their heads around it.

We are concerned that the Government’s proposed change does not really add protection; it just adds more confusion. The point is that the line between disproportionate and grossly disproportionate is still not clear. The Government say that they want to clarify it, but we are not clear on what the difference is. Under the current law people can shoot a burglar in the face and not be prosecuted, so what exactly is grossly disproportionate? Also of serious concern is that the proposal may have the opposite effect, and that has been raised, I believe, in the other place. We need to consider that and the Government need to respond to it. The proposal could encourage confrontation where it should be avoided. If burglars perceive that they are under greater threat from home owners, they may well  arm themselves to a greater degree than they do at the moment. There is wide-ranging consensus out there that the Government’s changes are at best unnecessary, and that they could increase risk and confusion.

When asked about the evidence to support the policy, and the number of cases in which a home owner has been arrested or charged after defending their home against a burglar, the Government responded that they do not hold that data—we have tried a couple of times to ask them—but The Guardian was able to do a trawl of cases. There were 11 cases between 1990 and 2005 and seven of those were domestic. That was even before the law was altered in 2008.

Michael Wolfkind, QC, the barrister who acted on behalf of Tony Martin in probably the most renowned case of self-defence in burglary, said that there was no need for the law to be changed and that the law already recognises that people react in a certain way in the heat of the moment. I refer to the letter to the Secretary of State from the right hon. and learned Member for Rushcliffe. It is a short letter, so I hope the Committee will not mind if I read it out:

“An announcement of a third change to the law of self-defence in almost as many years has a great potential to go wrong.

Sensible and influential people in the House of Lords and elsewhere will no doubt point out that they cannot think of a successful prosecution in a genuine self-defence case and conclude that the public now has reasonable confidence in the state of the law.

They will point out that we are giving the judges the seemingly impossible job of concluding that a particular act is both reasonable and disproportionate.

The risk is that we are simply setting ourselves up for a damaging and unnecessary battle with sensible commentators and heavyweight legal experts.

I do not intend to block the announcement but I do hope the Ministry of Justice will take note of these concerns and, in particular, avoid over-selling the policy which could easily backfire.”

That is sound advice.

Photo of Shailesh Vara Shailesh Vara Conservative, North West Cambridgeshire 9:15 am, 5th February 2013

The hon. Lady will recall that the letter spoke of successful prosecution, but the whole point is to avoid an individual going through the misery, pain and suffering of getting to the prosecution stage in the first place. If a decision can be taken instantly that the incident is not worth taking to court, the individual can get on with their life, rather than having a year or so of their and their families’ lives completely disrupted. For that reason alone—I contend that there are others—it seems appropriate that the law should be clarified.

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice)

The hon. Gentleman makes a valid point. It is important that we do not put victims through protracted uncertainty when they have done nothing wrong. They are a victim of crime who has acted in self-defence, which, within the law, is perfectly allowable. However, if the hon. Gentleman looks at the police guidance, which was amended recently—I do not want to read the whole thing out—it is clear that that should not happen and that police officers should take cognisance of the circumstances as they find them, so that in such situations they would not feel obliged to take the type of action that would lead to a protracted legal process.

Photo of Valerie Vaz Valerie Vaz Labour, Walsall South

Nevertheless, even though people are victims, they have committed a crime and it is for independent prosecutors to decide whether they have a legitimate defence.

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice)

I think my hon. Friend is alluding to the charge that has come from the legal profession about extra-judicial punishment being meted out by individuals. We are talking about people who have not committed a crime: victims of crime acting in self-defence. There have not been any successful prosecutions that would indicate that what we are talking about are people who have not themselves committed a crime. There have been instances—some quite famous—of people chasing intruders down the street and bashing them to near death with cricket bats. Those circumstances are different and do not rest on the self-defence defence, so they are slightly different. Nevertheless, my hon. Friend has made a point that the Minister needs to reflect on and respond to, because that point has been strongly expressed by colleagues in the legal profession.

We are asking the Government to resist the temptation to oversell the change, because we do not think that it will make any practical difference to the way in which victims of burglary are treated. The police guidance and the law as it stands give protection to victims of burglary. There is concern about the dangers of burglars arming themselves to a greater degree. Because of the overselling of the change, they might get the impression that that is in their best interests.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

I acknowledge that the hon. Member for North West Cambridgeshire is sincere in his amendment. It would be hard to find fault with the example that he gave. However, the amendment applies to “any person” on the premises at the time. The hon. Gentleman cited a situation where the shopkeeper and his son may be present, and his son would not be covered. What if the person present was paid protection because the shopkeeper had been threatened on a previous occasion? Would that person also be covered by the amendment? Would that not amount to premeditation on the part of both the paid protection and the shopkeeper? Would that not amount to licensed violence? Surely, that is not what the hon. Gentleman intends. If we were to support the amendment, that would be the result.

Photo of Shailesh Vara Shailesh Vara Conservative, North West Cambridgeshire

I am grateful to the hon. Gentleman, who makes a good point. The reason the amendment is open-ended and refers to any third party, is that it is intended to cover people such as shop assistants, who may work there but not live on the premises, or customers, who may be legitimately there with a view to purchase but go to the rescue when the burglar attacks the shop owner. As far as paid help is concerned, it is highly unlikely that any shopkeeper, certainly in a corner shop, makes enough money to pay security guards. However, I hear what the hon. Gentleman says.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

As I indicated earlier, I respect what the hon. Gentleman is saying. However, we are not paid to legislate on what is highly unlikely; we are here to scrutinise the words of the legislation, including the amendment. I suggest that if that person had been secured by the shopkeeper, they would meet the terms  of the amendment but could amount to licensed paid protection. I would certainly have concerns about that aspect.

On the wider point, this represents the danger of trying to translate party speeches—maybe necessary for that occasion—into legislation. There cannot be a person in the room who has not come across someone who has had their house burgled, or had personal experience, who does not recognise what a traumatic experience that is. Certainly, the prospect of confronting that person in your home is almost impossible to imagine. However, I am much guided by the advice we have had from a number of legal sources, as well as the comments by my hon. Friend the Member for Darlington. There is already quite a body of law on this subject and, as my hon. Friend pointed out, there has not been a host of prosecutions. The “Crown Court Bench Book” spells out the kind of guidance that judges across the country should give to a jury in respect of the matter.

I come back to what we are asked to approve. It is one thing for someone to grab the nearest available implement to defend themselves when confronted with such a situation, but are we seriously saying that someone who repeatedly stabs someone or stamps on their head, long after the point they are unconscious on the floor, should be allowed to escape any consequences? That would appear to be what we would do. We almost seem to be inviting people to use disproportionate force, irrespective of the circumstances. That is not what anyone in this room would really want to legislate for. We want to afford decent protection to ordinary people who are threatened in their own homes or premises. We want to ensure that judges and police forces go out of their way to recognise the trauma and the threat that those people were under at that moment.

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice)

My hon. Friend reminds me of a comment made by a Member in the other place, and he can perhaps help to shed some light on the issue. How many stamps on the head is grossly disproportionate and how many is just disproportionate?

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

I read in my local paper the other night about a street assault, about which the judge made the point that the sentence he applied was due to the repeated kicks to the head that were delivered by the assailant long after it was obvious that the person on the ground was unconscious. Clearly, the context was very different, but the judge considered that behaviour to be significant when it came to the length of the sentence.

I want to conclude by saying I am worried that we are going to create a situation that will make things more difficult for juries and may actually encourage a level of violence that none of us would want to see in such situations.

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

I suspect that it would help the Committee if I respond first to the amendment moved by my hon. Friend the Member for North West Cambridgeshire. I will then address the general points made about clause 30.

I am grateful to my hon. Friend for his support for the provisions in the clause. The Committee will know that he has assiduously been pursuing a change in the law on householder defence for a number of years, for  which he is to be commended. I quite understand that he, like the Government, wants to ensure that we finally get these provisions right, and in that light I fully appreciate the points he made. It is common ground between us that we are seeking to afford householders greater protection where they defend themselves against an intruder in their own home. The question is about where we draw the line. I hope that I can persuade my hon. Friend that clause 30 adopts the right approach.

As a first step, it might be helpful if I clarify precisely who is and who is not covered by the clause as it stands, because that might go a long way to allaying my hon. Friend’s concerns. The provision is first and foremost about householder defence. The home is the one place where a person should have the right to feel safe. Being confronted by an intruder in those circumstances would be particularly terrifying. The feeling of anguish or panic would be heightened if someone knew that family members or close friends staying with them in the house were in imminent danger.

New subsection (8A), which would be inserted in section 76 of the Criminal Justice and Immigration Act 2008, therefore ensures that the provision will apply to anybody lawfully in a dwelling who may come face to face with an intruder. That would include the householder and his family, but it would also include friends or visitors—for example, a childminder—who are lawfully in the dwelling when the attack takes place.

New subsection (8B) recognises that some people live in buildings that also serve as a workplace. Often, there is only a door or a flight of stairs separating the workplace from the living area of the building. If an intruder broke into the non-residential part of the building, it is only right that those living in the building should benefit from the heightened defence. The potential threat to a shopkeeper and his or her family in the connected living quarters is obvious.

Turning to the detail of my hon. Friend’s amendment, he is saying that if somebody is lawfully present in a dwelling—be it a home, a shop with living quarters attached or military sleeping accommodation—and is attacked by an intruder, it should not matter whether that person actually lives in the building or is simply visiting the property. As I explained, new subsection (8A) is already worded in such a way that anyone lawfully present in somebody’s home will benefit from the heightened defence if they are confronted by an intruder. I hope that will provide my hon. Friend with some reassurance.

The difficulty with my hon. Friend’s amendment is that it would also mean that people who were simply visiting a shop or other workplace that happened to have living quarters attached to it could benefit from the heightened defence, regardless of whether they lived in the building. Customers, delivery drivers or sales staff could all rely on the heightened defence if they were confronted by an intruder. Although we accept that it could be deeply traumatic to come face to face with an intruder in those circumstances, the focus of the provisions has always been on householder defence. It is meant to be about circumstances when the householder acts instinctively in fear or panic to protect himself or loved ones in his home from real or perceived danger.

If we widen the defence beyond householders in their dwellings so that it covers customers visiting a shop, for example, it would be difficult to justify not extending the defence to other scenarios where a person might come under attack such as when they are confronted by a mugger on the street. The current law on the use of reasonable force will continue to apply in those situations so it is not as though people will have no protection to defend themselves in such circumstances.

The provision is designed to focus on householder defence because those cases tend to concern the public the most. Householders want to feel safe in their homes, and they want to know that the law will be on their side if they use reasonable force to protect themselves or their families from a burglar.

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice) 9:30 am, 5th February 2013

The Minister has just summed things up perfectly. Householders do want to know that they can use reasonable force, which is what the law states now. They need to know the difference between disproportionate and grossly disproportionate, because that is where they will be caught out.

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

Indeed. If the hon. Lady will hold her horses for a second, I shall come to the point that she made in her speech. Meanwhile, in light of what I have said, I ask my hon. Friend the Member for North West Cambridgeshire to consider withdrawing the amendment.

Let me move on to points made by the hon. Lady. The Secretary of State for Justice has long supported the need for clearer laws to protect householders who use force to defend themselves from burglars, in what must be frightening circumstances. That is the direct answer to her point. There is clearly a difference between an attack in a person’s own home when close family or children may be present and a mugging on the street, terrifying though that is. The coalition agreement contains a specific commitment to give householders the protection they need to defend themselves from intruders.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

I am curious about the distinction, too. If someone is trying to break into my home through the back door and I confront them, and at the point when I actually strike them they are outside the house in the back garden, does the law of reasonable defence apply, but if they take two steps further and are inside my house at the point at which I strike them, would I be eligible to use the different defence?

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

I am conscious from the hon. Gentleman’s speech that, as ever, he is assiduous in posing individual cases. The general point that applies to many of the issues raised by him and his hon. Friend the Member for Darlington is that, obviously, individual cases are decided by individual judges. The purpose of the provision is to give not only greater protection to householders, but greater clarity about the protection they can seek, not least so that judges know what Parliament intends. The hon. Gentleman can pose various hypotheses, but each case will have to be decided by a judge.

Section 76 of the Criminal Justice and Immigration Act 2008 clarified aspects of the common law on the use of force in self-defence. The effect of the clause would be that householders who fear for their safety  and act instinctively to protect themselves or others in their home from intruders, using a disproportionate level of force, will not automatically be regarded as having acted unreasonably and treated as criminals.

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

May I deal with the how many stamps on the head question put by the hon. Member for Birmingham, Selly Oak? That is also about judges. People will not automatically be regarded as having acted unreasonably, but of course, it is always open first to the prosecuting authorities and subsequently to the court to decide that the individual act may well have been unreasonable. The provision gives the individual a greater level of protection because of the likelihood that people are not taking calm and rational decisions about what is happening in such terrifying circumstances, but in the end it is for the court to decide.

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice)

That is really the nub of the matter. At present, the test is reasonable force. Cases have already gone through the courts when a householder shot a burglar in the face and was not found to have acted unreasonably. What will a householder be able to do that they cannot do now?

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

I am glad the hon. Lady brought that case up. As my hon. Friend the Member for North West Cambridgeshire pointed out, it is not only about the successful prosecution or the successful conviction of a person; it is about the lead-up. The way the police behave in the individual circumstances can cause a huge amount of distress to individual householders.

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice)

But in response, I ask the Minister whether, as he envisages the future, a householder shooting a burglar in the face will not lead to any kind of court process.

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

The hon. Lady is persistent in asking me to decide hypothetical court cases in the future.

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice)

They are real; they happened.

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

And we saw what happened then. The measure will give an extra level of protection to the householder, but of course, in any individual case it will be for individual judges to decide. The hon. Lady can be as inventive as she likes in thinking of hypothetical circumstances, and I will allow her to continue to do so.

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice)

I am sorry, but the new guidance to police officers makes it clear that they should be extremely sympathetic to the situation that the householder finds themselves in. I want to understand from the Minister whether the point of the change in the law is that cases where a burglar is shot should not proceed to court. Is that what he wants to see?

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

I am afraid that was not a new hypothetical case. It was the same hypothetical case that the hon. Lady raised earlier.

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

Hang on; may I answer the first question?

The key difference is that disproportionate force will not of itself be deemed unreasonable. That is the level of guidance it is sensible to give to both the police and the courts. That is the difference; it is an extra protection for householders. The hon. Lady asked about the purpose of the measure. It is to give extra protection to householders.

Jenny Chapman rose—

Photo of Valerie Vaz Valerie Vaz Labour, Walsall South

I thank the Minister for giving way. May I ask whether a stamp to the head, which may kill someone if they have thin skull syndrome, is grossly disproportionate?

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

Again, that is a hypothetical circumstance that would have to be decided by a court. Opposition Members keep giving individual cases that may or may not go to court and may or may not happen. It is not for Parliament to decide on individual issues. It is for Parliament to pass laws, which judges interpret.

Photo of Shailesh Vara Shailesh Vara Conservative, North West Cambridgeshire

May I simply refer the hon. Member for Darlington to the police guidance, oft-quoted by the Opposition? She will see that it states that each case should be judged on its own circumstances. It is wrong to press the Minister about individual circumstances, when the guidance, to which the hon. Lady has made several references, says that each case should be judged on its own merits. I would have thought the guidance answers her questions.

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice)

The Minister is very generous. I do not think we are any clearer.

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice)

I have read the guidance. It is easy to pick on individual circumstances because there have only been seven. It is not difficult to read them all and wonder whether the new law will make any difference. What difference will it make? When a householder shot an intruder in the face, the case went to court and the householder was able to use the current law of self-defence and was found not guilty. Presumably the Government want a change in the law or they would not be passing the law. So what is the difference? That case went through a court process and the person was found not guilty. The only difference I can think the Minister wants to see is for there to be no court process following the shooting of an intruder. Am I right?

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

I will keep telling the hon. Lady that I will not try to hypothesise about individual cases.

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

The hon. Lady says it is complete nonsense, but it has already been pointed out to her that she should read the police guidance.

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

If you have got it, read it. You will see that the police are told, as I keep saying, that each individual case needs to be decided on its merits. Opposition Members keep providing hypothetical circumstances and I will keep saying that every individual case will be decided on its merits, because that is what the police guidance says. The substantive point that the hon. Lady is making about whether the case would go to court is clearly a matter for the police and the prosecuting authorities. The change in the legislation gives an extra level to householders, precisely so that the police and the prosecuting authorities, as well as perhaps the courts eventually, have a different test to apply throughout the process.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

Mr Caton, I do not know whether the Minister has stumbled upon a new form of defence, but to say that he will not deal with hypotheticals means that he is inviting us to legislate in the abstract. The whole purpose of our being here is to test his propositions and to understand what he is trying to achieve. He is here not only to clarify the law before we pass it, but to give guidance to the courts on how it should be interpreted. If he is incapable of dealing with any concrete example of how his legislation will work in practice, he does not have any confidence in it.

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

Actually, I have to say that that is a completely absurd interpretation.

Photo of Valerie Vaz Valerie Vaz Labour, Walsall South

The Minister himself has been the subject of discretion and I do not want to dwell on past airings, but there are law lecturers up and down the country who will be concerned by what he says about this procedure. In Committee is the place to do this exercise, partly because the Minister can go away with the officials and decide that maybe there is not the clarity in the law that we seek. We cannot pass a piece of legislation in the way that the Dangerous Dogs Act 1991 was—in a hurry and without thought, because there was confusion. This is the right forum for this kind of exercise.

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

Absolutely this is the right forum for this kind of exercise, but the hon. Ladies and hon. Gentleman on the Opposition Benches are trying to posit individual cases. I will say it one more time: the police guidance says that every individual case has to be taken on its merits by a court. It is not for Ministers to tell individual judges how to do their job in future hypothetical situations.

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

May I first quote the Lord Chief Justice? The Lord Chief Justice made it clear that judges view burglary as a very serious crime and as more than just a crime against property; they view it as a crime against the person as well. He said judges have to put themselves in the position of a householder who has

“reacted with fury, with anxiety, with fear” and

“has no time for calm reflection.”

There may well be cases in the future that benefit from the additional protection, and that is the guidance which the Lord Chief Justice wants to give judges in the future. He is very sensibly not going down the route of commenting on individual hypotheses.

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice)

Whenever I have been on Bill Committees before—I have not done as many as my right hon. Friend the Member for Delyn, who I think has done 35—examples have always been used to illustrate the benefits of a change in the law. It would be enormously helpful for this Committee and for others considering our deliberations later if the Minister could provide an example of where the new protection would be of benefit where the current legislation falls short, because, for the life of me, I cannot think what that would be.

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

I am sorry that the hon. Lady cannot think what that would be. I will not hypothesise, because I apply the strictures to myself that I apply to her.

Photo of Shailesh Vara Shailesh Vara Conservative, North West Cambridgeshire

The crime survey for England and Wales for 2010-11 estimates that there were 745,000 burglaries during that period. In approximately 75,000 of those cases, force or violence was used against the victim. The hon. Member for Darlington seeks examples. There were 75,000 uses of violence or aggression in one year alone, each with individual circumstances. I would like her to accept that one cannot judge issues in a Committee Room; they have to be judged at the time by the officers in the Crown Prosecution Service. If she wants examples, in one year alone 75,000 cases of violence arose. There is a need to clarify the law, if only to help those 75,000 people.

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

I would go further than that: not only can we not decide individual cases, but it is wrong for us to decide individual cases. That is precisely why we have a legal system and the courts.

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice)

There have been 75,000 cases and no prosecutions. That leads us to think that things are working in a pretty fair way as they stand.

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice) 9:45 am, 5th February 2013

It is not my speech.

We are not asking for a lot. All we want is to understand the provision. If there are 75,000 cases that the Minister could refer to, that should help him out. We want just one example of where the provision might benefit the householder.

Photo of Shailesh Vara Shailesh Vara Conservative, North West Cambridgeshire

The hon. Lady is wrong to say that there are 75,000 cases where there have been no prosecutions. An array of charges could have been brought, and in many of those cases people were prosecuted for, found guilty of and sentenced for not necessarily violence, but other charges, such as burglary or assault. The hon.  Lady needs to reflect on that, rather than simply have a blanket “No, there were not any prosecutions,” because there were.

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice)

May I respond to that point?

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

The hon. Lady will have a chance, with leave of the Committee, to speak later. If she wishes to, she may do so, rather than make her speech in bite-sized chunks. I will give way to her again in a minute.

I want to deal with one of the serious points made by the hon. Member for Birmingham, Selly Oak, about whether the provision is a vigilantes charter. I appreciate that that point was also made in another place. The provision is not that, but a recognition that people confronted by a burglar and acting in fear of their safety in the heat of the moment cannot be expected to weigh up exactly how much force is required. In such extreme circumstances, we think that they should have greater legal protection.

The provision is certainly not a licence to commit any act of violence whatever the circumstances. People would still be prosecuted if their use of force was unreasonable in the circumstances. Specifically, what would appear to be disproportionate force in the cold light of day might be allowed, but the use of grossly disproportionate force will never be reasonable. I hope that that reassures the hon. Gentleman.

On that point, does the hon. Member for Darlington wish to intervene? As a default, I assume that she wishes to intervene at every moment.

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice)

The Minister is very well mannered, and I am grateful.

I want to respond to the point made by the hon. Member for North West Cambridgeshire about the 75,000 cases and people being charged with all kinds of things. We are talking here about the law of self-defence; that is the clause we are looking at. If we want to consider other potential crimes and defences, the Government will have to propose different legislation. Self-defence is what we are here to consider. Our position is that the Government’s proposal will not make a jot of difference.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

I am interested in the Minister’s reliance on the Lord Chief Justice as his defence for his proposition. Will he care to comment on the remarks made by a former Lord Chief Justice, Lord Woolf? He said that

“I regard it as a very bad example of where statutory interference with the common law is wholly unnecessary.”—[Official Report, House of Lords, 10 December 2012; Vol. 741, c. 885.]

He did not seem to share the Minister’s confidence in the proposal.

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

I do not agree with that. The interaction between statute and common law is always difficult. Members on both sides of the Committee will recognise  that there is genuine public concern about people who are fundamentally victims of crime being criminalised themselves. That is at the root of the changes. The changes under the clause will give extra protection to householders who find themselves in such terrifying circumstances.

Photo of Shailesh Vara Shailesh Vara Conservative, North West Cambridgeshire

Does my right hon. Friend agree that the people we should be paying attention to are those on the front line? Does he agree with former Metropolitan Police Commissioner Lord Blair, who said:

“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”,

or with one of his successors, Lord Stevens of Kirkwhelpington, who said:

“Householders should be presumed to have acted legally, even if a burglar dies, unless there is contrary evidence”?

Another person who has had experience on the front line rather than in academia is Sir Bernard Hogan-Howe, who said:

“I think, probably, there’s an argument at the moment for making sure that that bar gets higher, and that the homeowner has better protection, and the burglar is put more on notice that they’re at risk if they choose to burgle someone’s home while they’re in it”.

Does my right hon. Friend agree that we need to start taking notice of the people who have to deal with the matter on the front line, rather than academics?

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

My hon. Friend makes a powerful case. We can quote authorities on either side of the argument about whether it is necessary to give householders greater protection, but the Government believe it is important to give householders greater latitude to protect themselves than the current law permits. The law currently states:

“The degree of force used by D”— the defendant—

“is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances.”

We are raising the bar by stating that the use of disproportionate force can now be regarded as reasonable in those terrifying situations where a householder is confronted by an intruder. Clause 30 introduces a material and overdue change, and I commend it to the Committee.

Photo of Shailesh Vara Shailesh Vara Conservative, North West Cambridgeshire

In the light of what the Minister has said, I am happy to withdraw the amendment. Would it be appropriate, Mr Caton, to make one or two general comments? I assure you that they will be brief.

Photo of Martin Caton Martin Caton Labour, Gower

You are welcome to make a comment on the clause.

Photo of Shailesh Vara Shailesh Vara Conservative, North West Cambridgeshire

Thank you, Mr Caton. I simply want to tell the hon. Member for Darlington that when she quotes people, she should reflect that in the present Cabinet, the Attorney-General, my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), was a signatory to my private Member’s Bill in 2006, and he agrees with the proposals. She should also be mindful that there is guidance, but the purpose of legislators is to ensure that the law is as clear as possible before those who interpret  it have to look at guidance. When she talks about support, it is important to remember that in more or less every public survey that has been done, there is widespread support for raising the bar.

Photo of Valerie Vaz Valerie Vaz Labour, Walsall South

Can the hon. Gentleman help me by pointing out where “grossly disproportionate” is defined in the Bill?

Photo of Shailesh Vara Shailesh Vara Conservative, North West Cambridgeshire

The grossly disproportionate test will be inserted in section 76 of the Criminal Justice and Immigration Act 2008. The Crime and Courts Bill simply amends the existing legislation. The hon. Member for Birmingham, Selly Oak spoke earlier about encouraging vigilante groups, but the law is quite clear. If somebody attacks me, and I attack them in the heat of the moment using whatever force is necessary to protect myself, that is fine. If the person ends up unconscious, that is fine. If I stab them when they are unconscious, however, that is not fine, and that would be grossly disproportionate. There is a limit. Examples were given earlier of people kicking and punching mercilessly without limit, but that would not be the case. One can use whatever force is reasonable to defend oneself, but when it is abundantly clear that no more aggression is required, because the attacker is on the floor, anything beyond that would be grossly disproportionate.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

I have no doubt that the hon. Gentleman is sincere in what he is trying to achieve, but the problem with what he is saying is that since the Minister does not entertain the idea that there might be such a thing as an example to illustrate or support his case, we have to take it wholly on faith that the wording will be interpreted as his hon. Friend envisages. There is absolutely no reason to suppose that that will happen, however, which is why we are trying to scrutinise the legislation.

Photo of Shailesh Vara Shailesh Vara Conservative, North West Cambridgeshire

The hon. Gentleman talks about scrutiny, but I would call it mischief-making. It is perfectly clear what is intended. I will conclude by saying that we as legislators have a duty to listen to the people who put us here. An ICM poll for The Sunday Telegraph in December 2009 reported that 79% of people felt that the law should be improved, enhanced and a higher test brought in. In my area, at the time of my private Member’s Bill, The Cambridge Evening News did a survey and 90% of local people wanted the test increased. If we are here to do good for the public and listen to them, this measure would put into place what the public want. I say to the hon. Gentleman and the hon. Member for Darlington that their efforts at mischief-making will not be fruitful. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice)

I was led to believe that I might get the opportunity to make a few more remarks. I will try to help the Committee by using a few examples to illustrate our case that this is not a groundbreaking, helpful piece of legislation, and that the Government are overselling it.

These are real examples provided by the Library. I will give five examples where the householder was not prosecuted. In a robbery at a newsagent’s one of the two robbers died after being stabbed by the newsagent. The CPS did not prosecute the newsagent but the robber, who was jailed for six years. A householder returned to find a burglar in his home. There was a struggle during which the burglar hit his head on the driveway and died. There was no prosecution. Armed robbers threatened a pub landlord and barmaid with extreme violence. The barmaid escaped, fetched her employer’s shotgun and shot at least one of the intruders. That was not prosecuted under the current law. Two burglars armed with a knife entered a house and threatened a woman. Her husband overcame one of the burglars and stabbed him. The burglar died. There was no prosecution. A middle-aged female took a baseball bat off a burglar and hit him over the head, fracturing his skull. Many people would say she was a hero. The burglar made a complaint but there was no prosecution.

There are other examples where there have been prosecutions. I would like to know whether such cases would or would not lead to prosecutions in future, because if there is not to be a difference, there is no point to the clause. The Minister does not seem to want to engage at all with that line of argument, which is curious. These are examples of where there were prosecutions under the current law, and we want to know whether there would be in future.

A man lay in wait for a burglar on commercial premises, caught him, tied him up, beat him, threw him into a pit and set fire to him. Is that disproportionate, grossly disproportionate? A number of people trespassed on private land to go night-time fishing. They were approached by a man with a shotgun who threatened to shoot them.

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice)

They ran away. I am just using these as examples.

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

So far the hon. Lady has produced examples that would specifically not be covered by this law at all.

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice)

Yes, because it is very hard to find examples of where householders have been prosecuted. This is the nearest we can get. If the Minister had answered our questions in the first place we would not have had to go through all this rigmarole. The first five examples were all householders or places where the household is attached to the place of work. Those would be affected by the clause. We have been unable to find prosecutions under the current law for householders. This is what we have got. We have a householder who lay in wait for a burglar who tried to burgle his shed. The householder shot him in the back and that led to a prosecution. I made a difference that he lay in wait, and the fact that the shotgun had not been licensed also made a difference. We need to understand what difference it is we are being asked to agree to. As it stands, there does not seem much point in voting either way, as it is not going to make any difference. We need the Minister to clarify the difference that the law will make. That is all we want to know; it is not hard.

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

I have said at some length—indeed, I have responded to many interventions—that these provisions provide an extra level of protection that is not currently available for householders in the particular and terrifying circumstances of finding a burglar in their home. As my hon. Friend the Member for North West Cambridgeshire eloquently pointed out, it is a change that is not only necessary but welcomed by the vast majority of the public. I therefore commend the clause to the Committee.

Question put and agreed to.

Clause 30 accordingly ordered to stand part of the Bill.

Clause 31 ordered to stand part of the Bill.