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Criminal Justice and Immigration Bill

It is hoped that a clear and unambiguous signal is provided by Clause 128, and, in that way, that the suggestion in previous discussions that that would be undertaken by the Government has been done. I immediately accept that this is a difficult issue and it has rightly galvanised a high level of interesting discussion, but I will resist this particular amendment. The noble Lord, Lord Kingsland, will fully accept that he has moved to resurrect the long-standing Conservative ““grossly disproportionate”” amendment relating to householders among others. I would therefore like briefly to revisit the long-standing problems that the Government and practitioners have noted with that proposal. The purpose of this amendment is to make a new defence available to a person acting against an intruder in a building who used force in the prevention of crime, in self-defence, defence of another or of property. Its intention is to provide a complete defence unless the force used was grossly disproportionate, and that had or ought to have been apparent to the person using such force. It is our strong view that the new clause as it stands does not resolve that issue. It also goes a step too far. We believe that the approach set out in the new clause risks further confusing the issue in the mind of the general public and in the eyes of practitioners—exactly the outcome that we all seek to avoid. I will turn first to the issue of confusion. Setting a separate test for householders acting in self-defence, which then admits a higher threshold of force, leads to the perception that the individuals defending themselves from attack in the street are somehow lesser candidates for the defence. We can all appreciate the peculiar terror and vulnerability of the person confronted by a burglar, probably in the dark, in their own home, perhaps woken from sleep and alone, but what about the terror of the rape victim defending herself from attack in the street? Should the law appear less generous in those circumstances? I suggest not. While that is not the intention of the noble Lord’s amendment, it is a likely and undesirable side effect. There are other problems with the noble Lord’s proposal, especially where our common aim is clarification. When referring in new paragraph (1A) to, "““any building or part of a building’," there will inevitably be a question of definition. Are a home, garden, shop, warehouse and caravan all to be regarded equally as they can all effectively be trespassed? The common link appears to be the burglar—the definition of ““building”” is explicitly linked to the Theft Act 1968—so is the defence likely to apply only when tackling a burglar? Does a person need reasonable grounds for suspecting a burglary—as they would if they were seeking to arrest them? Those are difficult questions. The beauty of the Criminal Law Act 1967 is that it allows reasonable force to be used when tackling any crime. Clearly, there are concerns about being able to use considerable force when defending the home, but that is already adequately catered for because the test of what is reasonable is judged in the circumstances, which would include concerns about being able to defend home and loved ones. Indeed, one would be judged in respect of the circumstances as one believes them to be, even if that belief is mistaken, provided it is honestly held. I trust that that is to some degree an indication that the desiderata set out by the noble Lord, Lord Elystan-Morgan, have been met. Equally, when referring to the ““person”” using force, how is their relationship to the property in which the act takes place defined? Should the house or business owner be treated in the same way as the babysitter, guest, private security guard or even squatter, given that all may effectively be residing in a private dwelling and may have recourse to use force when encountering a trespasser? And as drafted, the defence would even be available to a police officer who has been summoned to the scene. Are they too to be allowed the benefit of this higher test but if so why only in these circumstances? Although the answer to these questions may be clear in the mind of the noble Lord, it is unlikely that they will be as clear in the mind of the general public or practitioner on the front line, especially given the emotionally charged circumstances in which they are likely to need to answer them. Nor is it at all clear how the purported procedural protection of requiring the Attorney-General’s consent is expected to work. Proposed new Section 3(1B) the Criminal Law Act 1967 requires the Attorney-General’s consent before a prosecution can be brought against a person who has used force against a trespasser in self-defence or in the prevention of a crime. But until a prosecution has been brought and the court has ruled on the matter, how is it going to be clear whether a person who has used force acted in self-defence? Thus, consent from the Attorney-General would be required when the factual background was uncertain and unclear and was most probably to be contested. I gratefully adopt the observations made on an earlier amendment by the noble and learned Lord, Lord Mayhew, on the role of the Attorney-General. But as I said earlier, as well as the issues around confusion and practicality in the noble Lord’s amendment, there is a fundamental question of principle—is a test of ““grossly disproportionate”” right? In this regard, I share the concerns of the noble Lord, Lord Thomas of Gresford, when he asked what this might mean. There are legal and human rights issues which I will come on to. These are based on real concerns and it is important to look at the reason why the limitation exists. In this case one needs only to turn the proposed test round to see the difficulty. No one expects the person who is under threat to be able to judge to a nicety what level of force is appropriate. But under the proposed new clause before us the person using the force is deprived of the defence only if the degree used was grossly disproportionate and this was, or ought to have been, apparent to him. So, ex hypothesi, he would be entitled to use force which was disproportionate, but not grossly so, even though this was, or ought to have been, apparent to him. I submit that this is clearly one step too far. The civil test in the 2003 Act employs the words ““grossly disproportionate”” but that is the ploy to prevent a claim for damages. It does not follow that it is right for the criminal law to apply the same standard because one finds oneself put in the position of legitimising excessive and disproportionate violence, which seems a step too far. Further, the terms of the negative obligation in Article 2 of the European Convention on Human Rights are straightforward. They allow the state to deprive someone of their life only, "““when it results from the use of force which is no more than absolutely necessary””." This means that it would be impossible for the state to apply the ““not grossly disproportionate”” test to its officials. The position is more complex where the positive obligation to have adequate law in place is concerned, leading to a possible argument that applying the provision to private citizens alone would be a resolution to this issue; that is, that the ““grossly disproportionate”” test would be acceptable for the private citizen against trespassers. The Government disagree. First, we do not consider even this would be acceptable in human rights terms. But in any event such a solution would lead to a separate law for state officials. Here again we risk presenting the public with the ambiguity of two tests, thereby impeding our attempt at clarifying the law. It is desirable that one test and one set of considerations be used to assess the appropriateness of all such acts. The householder under threat at the top of the stairs needs to have the same understanding of their rights as the passer-by coming to the assistance of a robbery victim in the street. As regards the test, the noble Lord, Lord Neill of Bladen, made the point that one is bringing together the statements of Lord Morris of Barth-y-Gest in Palmer and the noble and learned Lord, Lord Woolf, in Martin, and that there is a combination of subjectivity and objectivity in the test. But Clause 128 as drafted seeks to take in both the test enunciated by Lord Morris and the full test of the noble and learned Lord, Lord Woolf, in Martin and in that way cover the full approach of deploying what is truly a mix of the subjective and the objective test in the common law as it stands. I hope that may to some degree allay the concerns expressed by the noble Lords, Lord Elystan-Morgan and Lord Dear, in relation to this point. I bring to noble Lords’ attention the example some weeks ago of Mr Singh. Perhaps the interesting point there is that Mr Singh was not prosecuted, and that decision was quickly arrived at. The noble Lord, Lord Dear, talked about the agony of the victim who has used violence in self-defence. I hope that one can see from the position adopted that one recognises the difficulty of that in this area, but that it is important to employ a certain clarity. It is hoped that the clause will bring that clarity. The position that the noble Lord, Lord Dear, brought to our attention, of the burglar meeting him in his stable yard, perhaps leaves one with the impression that it would be a rather unlucky prospective burglar. The noble Lord, Lord Elystan-Morgan, wished that the law was going to clarify the position, but I submit that the clause does precisely that; it is the intention of the Bill to clarify and reinforce. In looking at questions of nicety and using the defence in this type of position, it is perhaps difficult to see where Clause 128 meets a problem as regards the difference between strong and potent evidence. I can see that an argument can be made on that point, but there might be a certain nicety in the difference. While fully acknowledging and sharing the noble Lord’s good intentions in raising the issue and the amendment, it is clear that the defence that he proposes to create would go too far, would create anomalies and would not serve to clarify the law, but instead would produce tiers of tests for self-defence. As the amendments would invariably result in multiple tests and, arguably, in even less clarity than the status quo, let alone the insurmountable ECHR issues, I ask the noble Lord to consider withdrawing the amendment. I would now like briefly to reiterate the key aspects of the Government’s clause and why it is the pragmatic way forward. Citizens acting in the prevention of crime are plainly to be applauded. The law must not only stand by them in the courts, which it generally does to good effect, it should also stand by them from the very moment that they take action. The Government do not want to encourage vigilante or reckless behaviour, but they do want to encourage socially responsible behaviour; lawfully coming to the aid of a fellow citizen or acting in defence of oneself or one’s home, for example. To do this, we must give the public more confidence that the law is on their side, so the question is how best to instil this confidence. The law rightly allows a person to use reasonable force in self-defence or the prevention of crime, and the courts have developed a helpful body of case law giving guidance on reasonable force, but not everyone has either the time or inclination to research the position across the case law. For this reason, we have worked closely with practitioners to draw out and enshrine in legislation the most important principles on reasonable force derived from the case law. First, any force used to fend off or detain an assailant must not be disproportionate in the circumstances. For example, it is obviously not acceptable to use an extremely high level of force in response to relatively minor aggression. That would be plainly excessive and unreasonable. Of course, continuing to use force against someone who has already been subdued would not constitute force in self-defence at all, as the point at which force is needed has passed. But force used genuinely in self-defence or to prevent a crime, and which is not out of proportion to the circumstances, is lawful. Secondly, the law understands that in these highly charged situations it is not always possible for someone to judge to a fine degree exactly how much force they should use. Their actions will be judged based on how they personally perceived the situation; not through the eyes of a cool, dispassionate onlooker, and if they did no more than they ““honestly and instinctively thought necessary””—to use a phrase—that would be strong evidence that they acted reasonably. For example, a householder in their own home at night might use an object that was to hand to strike an intruder—the circumstance that the noble and learned Baroness, Lady Butler-Sloss, envisaged—but this action should be considered against the background of the fear that they experienced at that very moment, not in the cool light of day. Thirdly, in the very stressful situations that we are reflecting on, people can make honest mistakes. They should not be judged harshly for these unless, as the clause suggests, they are as a result of voluntary intoxication. We suggest that these three principles help to send a positive message to the public and the police about how and when force may be lawfully used in self-defence. However, it is not only to the public and police that this message needs to be sent; our Armed Forces probably depend on the present law of self-defence more critically than any other group. In clarifying in legislation the operation of the current law, which allows the use of reasonable force, rather than introducing a new threshold, we will avoid causing any confusion for our Armed Forces on current or future operations or in their day-to-day roles. The Armed Forces can be confident that the current law will continue to protect them in their duties. In summary, we contend that we are sending a positive message about how one can lawfully and responsibly protect oneself, one’s family and home, and other citizens. I appreciate that I have taken some time with this amendment, but in previous discussions it has been difficult to cover the full range of points here and it was thought necessary to do so. Given the broad explanation, I accordingly ask the noble Lord to consider withdrawing his amendment.