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Criminal Law (Amendment) (Protection of Property) Bill

Initially, I shall ask some of the questions that the hon. Member for Vale of York (Miss McIntosh) did not allow me to put during her own presentation. The first is that the crucial distinction made by her Bill by comparison with the current state of affairs is to replace the test of reasonableness with the test of gross disproportionality. She was asked by the hon. Member for Wellingborough (Mr. Bone), who left the Chamber immediately afterwards, what would happen if his wife set the dog on an intruder. The hon. Lady responded—with respect to her—evasively, saying that that was a matter for the courts to decide. Is that not a classic example of the state of uncertainty, about which she and her hon. Friends complain, in the current situation? At present, if the hon. Lady were to break into my house and I had to decide how far I could deter her, I would have to consider what would be deemed reasonable. Under her Bill, I would have to consider what was grossly disproportionate. It is possible to imagine situations where behaviour is unreasonable but not grossly disproportionate, or cases where it is grossly disproportionate but not unreasonable. Let us take, for example, the case of the British tourist who, in one of the southern states of America, one dark night got lost. He went up the path to a remote house and wanted to ask the way. As he approached, the nervous householder, who I believe had been burgled several times, thought he was another intruder and shot the tourist dead. We could all agree that that was grossly disproportionate—[Hon. Members: ““Some of us would.””] Unlike the hon. Lady, I shall be glad to give way if she wishes to intervene, but I hope she would agree that that was grossly disproportionate. Could we also say that that was unreasonable? Looking at the case, at least through British eyes, we would say, yes, it was unreasonable. But suppose the householder had not shot the tourist dead, but merely wounded him. An American court, and, I submit, a British court might in that case have said, ““Well, this is grossly disproportionate—using a firearm to attack somebody who has not yet done anything worse than walk up the drive—but is it unreasonable?”” One could argue that with a history of burglaries, it is understandable if the householder feels nervous. Here we have a case where the householder would be prosecuted under the hon. Lady’s Bill, but not under the current law. Her Bill would replace one uncertainty with another uncertainty. That is being done not in order to resolve the uncertainty—if that was her intention she would merely adopt the formulation that the householder can do anything on his own premises—but to seek partisan advantage, by pretending to bring forward a different form of words which in practice would do nothing to reassure the householder that they would be able to operate. The householder would have exactly the same dilemma: to judge what a court might think of his or her behaviour—