---

Criminal Justice and Immigration Bill

I welcome and support this amendment. Members of the Committee will be pleased to hear that it enables me to make the central point that I was going to make later on my own amendment, Amendment No. 138A. I welcome this amendment because of the language which would go into the 1967 Act and become a new subsection (1A) of Section 3, that language being, "““the degree of force used was grossly disproportionate, and … was, or ought to have been, apparent to the person using such force””." That is in harmony with the language to be found in Clause 128(5). That language is a direct quotation out of the judgment of Lord Morris in Palmer in 1971, AC 814. In effect, we look into the mind of the accused: what did he think he was doing? Did he think he was doing that which was necessary to defend himself? That is a subjective test. It is supported in a leading textbook on criminal law, Archbold, at paragraph 19/41 of the 2008 edition. In my respectful submission, that is to be preferred to the objective test. I shall give a classic statement of the objective test taken from Card, Cross & Jones Criminal Law, the 17th edition published in 2006 at paragraph 19.8. There it is put this way: "““Except that it is based on the facts as the defendant believed them to be, the test of whether reasonable force has been used in the prevention of crime, self-defence etc is an objective one. In other words, the question is whether, on the facts as the defendant believed them to be, a reasonable person would regard the force used as reasonable in self-defence etc””." Having taken the facts as the defendant believed them to be, in answering the question, ““Did he use excessive force?””, we can look at what the reasonable man would think about it. That is quite contrary to the Lord Morris test found in Clause 128(5). The objective test, again, you find in the Martin case, where the noble and learned Lord, Lord Woolf, the then Lord Chief Justice in the Court of Appeal, said at paragraph 7 of the judgment of the court: "““As to the second issue, as to what is a reasonable amount of force, obviously opinions can differ. It cannot be left to a defendant to decide what force it is reasonable to use because this would mean that even if a defendant used disproportionate force but he believed he was acting reasonably he would not be guilty of any offence””." On the Palmer test in subsection (5), you look to see what the person reasonably thought that he ought to do in the critical situation in which he found himself. I remind the Committee of the case of Mr Singh, which we all read about in the newspapers last week. He was getting out of his office, going home with the day’s takings when an ex-criminal, a man with a record—Mr Singh did not know that, of course—smashed the window of his car and tried to grab the bag with the takings in it. The man who attacked him was armed with a knife and Mr Singh defended himself. He was cut in his head; he had a knife wound in his head and other knife wounds on his body. But he kept fighting and the matter ended up with the attacker reeling away from the car with his own knife stuck into his chest, and he subsequently died. That is a classic example of a man in the agony of the moment doing everything he can do to protect himself and there is no question that he is an innocent man. In the circumstances, he was arrested and questions of a murder charge, manslaughter charge or a charge of assault occasioning grievous bodily harm were all investigated. Fortunately there is a happy ending: later in the week he was cleared of all suspicion and the police declared that he was a free man. That is an example of looking at how someone behaves in what I call the agony of the moment. This approach is supported in the European Court of Human Rights. I refer to the case of Andronicou v. Cyprus, decided in 1998, 25 European Court Reports, page 491. An armed man was holding a woman hostage and the police in Cyprus had to deal with the situation. Mr Andronicou had a gun and was shooting at the police; they returned the fire and, sadly, both Andronicou and the girl were killed. The court said in interesting language: "““The Court cannot with detached reflection substitute its own assessment of the situation for that of the officers who were required to react in the heat of the moment in what was for them a unique and unprecedented operation to save life. The officers were entitled to open fire for this purpose and to take all measures which they honestly and reasonably believed were necessary to eliminate any risk either to the young woman’s life or to their own lives””." That is a Palmer test being applied by the European Court of Human Rights, which is quite a good guide for us. I welcome the amendment because it squarely brings out that focus on the mind of the defendant and rejects what I call the Card, Cross and Jones test of extreme objectivity where, with detached reflection, the jury is supposed to substitute its own opinion of what the emergency called for.