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Criminal Justice and Immigration Bill

I do not believe it was ever necessary for there to be such a provision as Clause 128. If that clause had managed to draw clear boundaries where boundaries not so clear now exist, it would have been justified. If it changed the law, particularly in a progressive direction in favour of the defendant, there would be justification. In my respectful submission, the clause does not achieve either of those purposes. My first objection is that the whole slant of what is suggested in the clause is wrong. It suggests that self-defence is a defence, but it is not; self-defence is a situation that the prosecution must expunge to the point where a jury is satisfied that it has proven that position beyond all reasonable doubt. To refer to it as a defence is very wrong. Rather than put my own arguments, I shall quote the words of Lord Justice Wynne in a decision of the Court of Appeal in Wheeler in 1967 that set out the position much more succinctly than I ever could. He said: "““wherever there has been a killing or the infliction of violence not proving fatal in circumstances in which the accused puts forward a justification such as self-defence it is quite essential that the jury should understand that the issue is not properly to be regarded as a defence, and where the judge does slip into the error of referring to it as a defence it is particularly important that he should use language that suffices to make it clear to the jury that it is not a defence in respect of which any onus rests upon the accused but a matter which the prosecution must disprove as an essential part of their case before a verdict of guilty is justified””." Those are well measured, wise words that, to my mind, completely undermine the whole structure of Clause 128. The intentions behind that clause may well have been good and honourable; they may have had something to do with the effect of the heady wine of the hustings on Mr Straw in the autumn of last year. Be that as it may, the clause tends to give a slant with regard to self-defence that is most unfortunate so far as a jury is concerned. The second objection concerns the way in which the so-called defence is set out. It is true that in subsection (5)(a) there is a direct quotation from the words of Lord Morris of Barth-y-Gest in Palmer in 1971: "““a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action””." Those words are essentially taken from the words of Mr Justice Cardoza some 30 or 40 years earlier, when he said something like this: ““You cannot expect a defendant in those circumstances””—he was speaking of the circumstances of self-defence—““to weigh in the fine scales of a jeweller’s balance exactly the amount of force to use””. Therefore, in so far as that expresses the necessity of a jury being sure that it is not marginally but fundamentally that the use of force exceeded, the first test, the objective test of unreasonableness, is satisfied. The second part of the subsection is rather a précis of what Lord Morris said. Even there, though, the clause is less than just to the position of a defendant. Subsection (5)(b) reads: "““that evidence of a person’s having only done 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””." It says ““strong evidence””. Lord Morris’s words were ““most potent evidence””, which to my mind is one shade beyond that. The amendment seems to avoid my first objection in that it does not refer to self-defence as a defence, and there is very little to criticise in it. However, proposed new Section 3(1A)(b) of the Criminal Justice Act 1967, which the amendment would introduce, states that, "““this was, or ought to have been, apparent to the person using such force””." That is to bring back by the tail an objective consideration. I would put the law of self-defence, or self-protection as I prefer it to be called, in this way. First, the prosecution has to show that the force that was used was quite disproportionate and unreasonable by a long chalk—there is no question of small margins—according to an objective test. Secondly, according to a subjective test as seen through the eyes of the defendant, it must show that that defendant knew and appreciated that he or she was using force that was excessive; in other words, they did not have an honest, genuine belief that the force used was reasonable. If the defendant had that belief, even though it was unreasonable, they should still be absolved from guilt. So there are two clear tests: first, the test of reasonableness from an objective point of view, and, secondly, the test of excessive force from a subjective point of view. These are not just my ideas; they are found in two leading cases in this matter. The first was that of Gladstone Williams from 1987, a case in the Court of Appeal which was presided over by then Lord Chief Justice, Lord Lane. The second case, from the following year, is Beckford, a Privy Council case. Both cases followed a very strong recommendation that was current at the time on the part of the Criminal Law Revision Committee. So the statement in Palmer in 1991 classically enunciated the law as it then stood. However, since Palmer, there has been a development along the lines suggested by Lord Morris, but not spelt out by him. It is a subjective test that looks at the situation through the eyes of the defendant. The clause obfuscates the situation for the reason that I have adumbrated, and it puts the position less than fairly in so far as a defendant is concerned. The amendment of the noble Lord, Lord Kingsland, also has the effect of bringing a tinge of objectivity to what is supposed to be the second limb; namely, the subjective test.