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Criminal Justice and Immigration Bill

My Lords, I question the appropriateness of this clause. A later amendment, to which the noble Lord, Lord Thomas of Gresford, has, among others, put his name, proposes that the clause should simply be taken out. If I may just for a moment forget the noble Earl’s amendment, to which I shall come in a second, my underlying point is that the Government are taking a bit of the common law and trying to put it into statute but without explaining their intention in doing so. The Explanatory Notes—I raised this point on Second Reading but have not had an answer to it—tell us that this clause, which used to be Clause 128, "““provides a gloss on the common law of self-defence””," and the statutory defences under the two sections mentioned, in particular Section 3 of the Criminal Law Act 1967. The notes continue: "““It is intended to improve understanding of the practical application of these areas of the law. It uses elements of case law to illustrate how the defence operates. It does not change the current test that allows the use of reasonable force””." We get a repetition of that sort of education concept if we look at Clause 75(7), which is a very curious provision to find in statute. It says: "““This section is intended to clarify the operation of the existing defences mentioned in subsection (2)””," which are the common law of self-defence and the statutory provisions that have been mentioned. No change is apparently being made, but now the noble Earl, Lord Onslow, is proposing the introduction of the word ““reasonably”” in relation to the state of mind of the accused or the person who is running the defence of self-defence when it is said that the amount of force that he used was not reasonable. If we are to get down to this and examine it properly, it should go to the Law Commission and not just be put into a Bill with no adequate explanation, which opens the way for amendments. The Government are introducing tinkering amendments which add nothing to what is already in the Bill. In fact, the noble Earl is altering the law and I shall illustrate that. I apologise for taking a minute or two but this is a serious matter: it is playing around with the defence of self-defence in common law. I shall cite the 17th edition of a book on criminal law by Card, Cross and Jones—originally just Cross and Jones. I declare an interest in that Cross was my tutor. A professor of law in Leicester has produced the recent editions of the book and in his preface he disarmingly says: "““There is no other book on the criminal law published in England which deals so comprehensively with the subject of criminal law””." What modesty! I feel very reassured when I quote from his book—he cannot be beaten. He starts with a proposition in the following terms. I am reading from page 774, paragraph 19.8. I shall keep it as short as I can but I attach importance to this: "““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””." I repeat: ““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””." That is nice and simple. It is a clear proposition. You just put yourself in the position of the man in the street watching the event and you take what the defendant believes the situation to be. He thinks that he is being attacked by three people, although one man is there. You take his belief but then you ask what the reasonable man would think he was reasonably doing. The nice simplicity of the professor’s proposition is somewhat qualified by what follows when he goes into some of the case law. I quote from page 775: "““In assessing the reasonableness of the force, the jury or magistrates should take a liberal approach; they should ‘not’””," to use Lord Lane’s language, "““‘use jewellers’ scales to measure reasonable force’. In addition, and this goes even further in tempering with leniency the objectiveness of the test, there must be taken into account the time available to the defendant for reflection””." Then the words of Lord Morris are quoted in the case of Palmer. Subsection (5) uses this rather curious language, which is an exact reflection of what Lord Morris of Borth-y-Gest, whom I well remember, said in the Palmer case in 1971: "““If there has been an attack so that defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken””." In other words, you look at what the man thought in the moment of agony or anguish. That case was followed by a judgment in the Court of Criminal Appeal in a case called Shannon in 1980. It is easy to pick up on what was going on: "““In other words, if the jury concluded that the stabbing was the act of a desperate man in extreme difficulties, with his assailant dragging him down by the hair, they should consider very carefully before concluding that the stabbing was an offensive and not a defensive act, albeit it went beyond what an onlooker would regard as reasonably necessary””." Therefore, the Court of Appeal makes an express decision that in particular circumstances you will not judge the case by what the reasonable onlooker watching the event thought but by knowing the facts as were believed by the man who had put forward the defence of self-defence. One begins to wonder whether this amendment has something to do with the Martin case. One tries to use one’s imagination in deciding where the Government might be coming from. Everyone remembers the Martin case. He was the lonely, eccentric farmer whose house had been raided about six times. On the particular night, the intruder was a boy—a youngish person—and Martin took his gun and shot the boy in the back as he was leaving. In the end he was convicted and the issue went to the Court of Appeal. The noble and learned Lord, Lord Woolf, was the Chief Justice presiding when the case went to appeal. This passage is of interest and I hope will not upset him. "““In Martin … on the question of what the defendant believed, the Court of Appeal held that psychiatric evidence that the defendant would have perceived the alleged circumstances as being more dangerous than would an ordinary person did not need to be considered by the jury in the particular case because it would not have assisted them, and indeed would have confused them””." Then, with temerity, Professor Card adds: "““This decision was surprising since a jury which knew of such evidence might view the claim that the defendant had the above perception differently from a jury which simply knew that he was very eccentric””." Noble Lords will be grateful to hear that I shall conclude my citation at that point. My simple point is that the noble Earl is changing the common law with the adverb that he wants to insert. We should not be conducting this exercise at all. It can all be worked out in future case law. It is not something that should be tampered with by this type of legislation.