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Criminal Law (Amendment) (Protection of Property) Bill

The child might be injured but the householder would not be protected by the Bill because the ball would presumably be in the yard or garden. The householder might not draw the distinction that a QC would between the house itself and its immediate surroundings. People might think that they are protected by the Bill in using disproportionate force in dealing with a lad trespassing while chasing a ball, but find themselves in the dock because the Bill would not protect them. That is the sort of problem that arises when there is a duplicity of standards in respect of the law of self-defence. Let us consider what we mean by ““entered as a trespasser””, which is the phrase used in the third line of what would become new subsection (1A) of the Criminal Law Act 1967. I happen to have with me a copy of the eighth edition of Professor Sir John Smith’s ““Law of Theft””, which, if we follow its advice, produces some interesting anomalies in respect of the Bill. Let us first consider the definition of ““enters””. The common law rule was that the insertion of any part of the body, however small, was a sufficient entry. If a burglar pushed through a window pane and the forepart of his finger was observed to be inside the building, that was enough. The Theft Act gives no express guidance and it seems to have been assumed in Parliament that the common law rules apply. Under common law, if an instrument is inserted into the building for the purpose of committing the offence, it counts as an entry, even though no part of the body was introduced into the building. Someone who just pokes a finger through the window could be met by disproportionate force when the mad householder with an axe comes along and chops it off. That is disproportionate for sure, but is it excessive? We do not know, but I believe that the House does not really expect or wish to see that happening. We know that the common law still applies, because Professor Smith, one of this country’s leading experts in criminal law, explains it in his book. He goes through a whole series of anomalies that can occur, but he goes on to say at the end of the section that deals with ““peculiar effects”” that the ““best course”” is probably to assume ““the continued existence”” of the ““common law rules””. He provides some very strange examples. One of the most interesting is the case of transvestites who hooked dresses worth £600 through the letter boxes of shops and pleaded guilty to burglary. Well, if that is committing a burglary and if the essence of burglary is trespass, I dread to think what might have happened if the householder had got hold of them while they were hooking things through his letter box. Now that we have looked into the question of entering, we have to understand exactly what is meant by trespassing. A trespasser is a legal concept that is rooted in the civil law rather than the criminal law. The basic rule in civil law is that entry with the consent of the occupier cannot be trespass, but obviously the opposite is the case. ““Mistake”” by the person who enters the property is no defence if, for example, the person accused of being a trespasser and therefore at risk under the Bill were to enter the house next door, mistaking it for his own, on a very dark night. That would still be regarded as an intentional entry in trespass law, even if the person doing the entering had made an honest and reasonable mistake. To revert to my earlier example of the neighbour returning the lawnmower, one wonders whether the full force of excessive force is appropriate in those circumstances. I can provide an even better example than that. Let us suppose that the person allegedly committing the trespass were separated from his wife and he wrongly supposed that he had the right to enter the matrimonial home of which he was still technically the owner-occupier as he was still paying towards the cost of the home. He thought that he had the right to go in, even though he may not have had that right in law, and enters with the intent of removing some of the belongings. In fact, even in law, he may be a trespasser, but he is not actually a burglar because he can rely on some of the defences that apply in the law of trespass. My concern in that case is that he is potentially a trespasser for the purposes of the Bill, but he is not a burglar for the purposes of the Theft Act 1968. He could be beaten up by whoever happens to be inside the property—by his wife’s new partner, for example—and if he were subjected to excessive force, it would be covered by the Bill even though in law he was not really a burglar at all.