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Criminal Justice and Immigration Bill

To some degree, we may end up arguing about the size of the head of a pin. In the rare cases where such a prosecution reached court, it would be for a jury to decide behind closed doors whether it thought that the force used was acceptable. I put on the record the advice that I have received, which I accept. That is an issue between us. The new clause seeks to clarify the law in a positive way. It is drawn from the best of existing case law, but everyone knows that not even good lawyers can always access that with ease. We have sought to put on the face of the Bill the circumstances that should be taken into account by the court not only when it decides guilt or innocence, but earlier down the track when it decides whether to initiate an investigation. Proposed new subsection (5) states that in deciding whether someone is guilty of an offence,"““the following considerations are to be taken into account…that a person acting for a legitimate purpose””—" that is, to prevent a crime or apprehend a criminal—"““may not be able to weigh to a nicety the exact measure of any necessary action; and…that evidence of a person's having done only what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.””" In other words, if that person honestly and instinctively thought that their action was reasonable, that would weigh heavily with the court, leaving aside the issue of whether it was proportionate or grossly disproportionate. My final point is that proposed new subsection (8) means that in terms of what the defendant believed it is immaterial whether the belief was mistaken and, if it was mistaken, whether the belief was reasonable. I commend the proposals to the House.