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Criminal Justice and Immigration Bill

My Lords, I respectfully agree with the sentiments of the noble and learned Lord, Lord Mayhew, and other noble Lords. I am naïve enough to believe that the state of the law is thoroughly satisfactory and well understood by juries in the vast majority of cases. There may be a small minority of cases when there are complicating factors, but it is entirely proper for a judge to direct a jury on these lines, and the prosecution has to establish beyond reasonable doubt on both an objective and subjective test that it has expunged totally the consideration of self-defence. It is not a matter for the defendant to establish it or even to raise it, but for the prosecution to expunge it. The two limbs of the ““reasonable”” test are: members of the jury are asked to place themselves in the position of an invisible bystander; then on the subjective test, they have to place themselves in the mind of the defendant and look at the situation through the defendant’s eyes. They are simple tests that ordinary jurors well understand. I am sure that the House is deeply indebted to the noble Lord, Lord Neill, for the tour d’horizon that he conducted in relation to this area of law. With the greatest respect, I do not follow—or at any rate invite the House not to follow—the authority that he quoted. I quote from the 11th edition—the 2005 edition—of Smith and Hogan Criminal Law, which makes no such inflated claim as the authority quoted by the noble Lord. Under the heading: "““D’s belief in need for force subjectively assessed””," the learned editor of that book states: "““The authority for the proposition that the defendant is to be judged on the facts as he believed them to be is Gladstone Williams””—" a matter decided in 1984— "““repeatedly applied in the Court of Appeal and by the Privy Council in Beckford v R. Williams was charged with an assault occasioning actual bodily harm to V. D’s defence was that he was preventing V from committing an assault on X. But V may have been lawfully arresting X. The jury was directed that if V was acting lawfully, D had a defence only if he believed on reasonable grounds that V was acting unlawfully. It was held that that was a misdirection. D had a defence if he honestly held that belief, reasonably or not””." The House will appreciate that the amendment proposed by Her Majesty's Government does exactly what the learned judge did, which was found to be wrong by the Court of Appeal in that case. If the learned editor of Smith & Hogan is correct, and I believe him to be correct, that is exactly the effect that the government amendment, well meaning though it is, would have. It would not improve the position of the defendant; it would make it much more fraught and would place him in much greater jeopardy. It would not clarify the situation, which demands an appreciation of an objective test and a subjective test. If you mix the two, you create monsters. Interbreed the two, and you have immense difficulty. The amendment tabled by the Government enjoins the jury to decide a subjective matter by an objective test. That is wholly the wrong way to go about it. It is guaranteed to complicate and obfuscate the situation so far as the jury is concerned. On previous occasions—and I do not apologise for this—I have drawn attention to the fact that the tenor of Clause 75, as it is now numbered, is to suggest, mildly at any rate, that this is something for the defendant to raise as a special defence. It is not that; the onus is on the prosecution to expunge that possibility altogether. The best solution would be to omit the clause. I do not believe that it is necessary. The law is well understood and works well. In relation to the amendment tabled by the noble Lord, Lord Kingsland, and others, I take the point that it may well be, as a matter of administrative policy, proper that some of these complicated and serious cases should be referred to the Attorney-General for her advice about whether the prosecution should proceed. That is the best possible way of dealing with them.