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Criminal Law (Amendment) (Protection of Property) Bill

I hope to deal with that shortly, because it is important that we understand where the law stands. I was talking about the black letter law expounded by Lord Morris, who was explaining the common law in the case of Palmer. Basically, it is a common sense test, and who can object to that? Many other myths have developed. In paragraph 19.42 in the section on offences against the person in ““Archbold””, the old rule that a man who is attacked must retreat as far as he can has disappeared. Whether the accused retreated is only one factor for the jury to consider when determining whether force was reasonably necessary. Moreover, the same paragraph states that there is no rule of law that a man must wait until he is struck before striking in self-defence. If another person strikes at him he is entitled to make his blow first if it is reasonably necessary to do so in self-defence. The existing law therefore goes further than most people think. Moreover, if the defence of self-defence is offered, the burden of disproving it is on the prosecution, not on the defendant facing trial. ““Archbold”” says that where such a defence is offered, the burden of negativing it rests on the prosecution. If, on consideration of all the evidence, the jury is convinced of the innocence of the prisoner—““Archbold”” uses old terminology because it is citing an old case—or is left in doubt as to whether he was acting in necessary self-defence it should acquit. In the Crown v. Abraham the Court of Appeal said that a judge should deal with the issue by telling the jury that someone who acts reasonably in self-defence commits no unlawful act. Just as it is for the Crown to show that the plea of not guilty is not acceptable, so the Crown must convince the jury beyond reasonable doubt that self-defence has no basis in the present case. There are therefore many safeguards in the existing law. We must also look at the charging standard text used by the CPS, which was published on 26 November 2004 and tells CPS staff how they should approach such cases. Prosecutors must consider all assaults in the context in which they were allegedly committed. Particular care must be taken in dealing with cases of assault where the allegation is made by a ““victim”” who, at the time, was engaged in criminal activity himself. An example relevant to today’s debate is a burglar who claims to have been assaulted by the occupier of the premises concerned. Prosecutors are reminded that it is lawful to use reasonable force in the following circumstances—self-defence; to defend another person; to defend property; to prevent crime; and to lawfully arrest someone. Where the use of force in such circumstances is reasonable the assailant—the person about whom we are concerned—has an absolute defence, and charges relating to the assault should not be brought. Paragraph 5 of the CPS charging standard text therefore sets out the position in black and white. The advice to prosecutors continues:"““In assessing the reasonableness of the force two questions should be asked: was the force used justified in all the circumstances? . . . and was the first force used excessive””?" The courts have shown that both questions are to be answered on the basis of the facts, as the accused—the householder—honestly believed them to be. To return to my exchange with my hon. Friend the Member for Tooting, the test is a subjective one. The issue of whether a reasonable person would regard the force used as reasonable or excessive is the subsequent question, not the primary question.