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Criminal Justice and Immigration Bill

My Lords, as well as responding to the amendment moved by the noble Earl, Lord Onslow, I shall also touch on the amendments tabled by my noble friend Lord Hunt of King’s Heath, and I propose to begin with them. The noble Lord, Lord Thomas of Gresford, tabled amendments in Committee. Some of them reflected a concern that what is now Clause 75 could be read as precluding a court paying any regard to the reasonableness of a mistaken belief relied on by a defendant. That was never the Government’s intention. It was always felt that the courts would use common sense when assessing such claims. However, on reflection, we considered that the clause could benefit from further clarification. The resulting government amendments address that concern and clarify that the reasonableness of a professed belief is relevant to judging the genuineness of the belief. It is a crucial element that will inform the jury’s belief in the defendant’s case. However, a defendant is still entitled to have his actions judged on the basis of his view of the facts as he honestly believed them to be, even if that belief was mistaken or unreasonable in hindsight. I thank the noble Lord, Lord Thomas, for his assistance and hope that he and the House welcome these useful amendments. Indeed, I might even dare to hope that the noble Lord will now reconsider his support of the amendment tabled by the noble and learned Lord, Lord Lloyd, to remove the clause altogether, otherwise we will lose his valuable contribution. I turn to the amendments tabled by the noble Earl, Lord Onslow. They, too, focus on the question of mistaken belief and stem from observations made by the Joint Committee on Human Rights, which is concerned about that aspect of the current law. In general, the committee continues to welcome our efforts to clarify the law on self-defence. I may also observe that it also supports our firm resistance to any attempts at introducing a ““grossly disproportionate”” test—something to which I shall come later when considering the amendments tabled by the noble Lord, Lord Kingsland. Amendments Nos. 88 and 90 would mean that a defendant would be judged on the facts as he saw them only if his belief was ““reasonable””. Rather surprisingly, such a requirement would run counter to the concern that householders and others should be judged sympathetically on the basis of their mistaken beliefs. Otherwise, it would erect a new and further hurdle to the plea of self-defence. Even had a defendant used more force than was in fact needed because he made an unreasonable mistake in his assessment of the danger faced, it seems unduly harsh to prevent him from relying on self-defence if in fact he had no aggressive intent and was simply reacting to the circumstances as he saw them, or at most an aggressive intent that was justifiable in reaction to and in the light of his mistaken perceptions. On that general point, it is important to recognise that although the current law allows defendants the benefit of their unreasonable mistaken beliefs, it does not by any means give them carte blanche. The degree of force used must still be objectively reasonable in those circumstances, so that there is not the dramatic immediate response of picking up the gun or the Japanese sword, which the noble Earl possibly saw as the next step. Amendments Nos. 88 and 90 therefore appear undesirable. The noble Earl’s second set of amendments, Amendments Nos. 89 and 91, draw a similar conclusion to his previous set. However, they apply the restriction only to agents of the state. They are, in effect, an alternative, more restricted approach to addressing the issue of mistaken belief. The Joint Committee on Human Rights has suggested that human rights law necessitates an amendment to make clear that honest but mistaken beliefs must be based on good reasons when force is used by state agents. The Joint Committee argues that the Strasbourg law is ““clear””—it uses that term—that allowing a defendant to rely on a mistaken belief that the use of force was necessary is compatible with Article 2 of the European Convention on Human Rights only if the belief was reasonable. The committee also suggests that that conclusion is particularly inescapable in the case of state agents. We are aware of various indications in the European convention case law that might be read as supporting that view. The letter to the Joint Committee from the Minister of State, the right honourable David Hanson, of 12 March 2008, mentioned those, including, but not limited to, the reference to ““good reasons”” in the McCann case in its most recent report on the matter. However, we maintain that the position in human rights law is not in fact clear. We consider that the case law falls well short of a requirement to change our law. The passage in McCann to which the Joint Committee refers says that a defendant can rely on a mistaken belief which he holds ““for good reasons””, but it does not say in terms that that is an exhaustive account of the situations in which a defendant may rely on a mistaken belief. What is clear is that the Strasbourg court has never taken the opportunities that it has had to rule that our domestic law is incompatible with the convention, as might perhaps have been expected if in fact there were an obvious incompatibility. On the substance of the matter, we submit that case law suggests that the current common law position is compatible with the requirements of the European convention in Article 2. It should be borne in mind that states are permitted a certain flexibility in determining how their national law deals with these requirements. We consider that the current position in our domestic common law, as reflected in the Bill, achieves the right balance between the need to protect life and the rights of persons accused of crime. As previously indicated, in coming to this view we rely on, among other things, the following. First, a person who professes an unreasonable mistaken belief as the basis of his use of force in self-defence is not automatically given the benefit of being judged on that basis. Rather, he is to be judged on the facts as he claims to have seen them only if the court believes that his view was genuinely held. If a defendant’s professed belief is unreasonable, that can be a powerful reason for disbelieving him. Secondly, even in cases where a person’s use of force is to be judged on the circumstances as he mistakenly saw them, the degree of force used must have been objectively reasonable in those circumstances. The Government therefore acknowledge that the position is arguable, and indeed has been argued in legal journals. Details of this were given in the letter from the Minister of State, to which I have already referred. There is, however, no consensus that the Joint Committee’s view is right. In the same letter, we mentioned that the leading textbook, Smith and Hogan Criminal Law—a source on which the noble Lord, Lord Elystan-Morgan, relies—takes the view that to invalidate a defendant’s right to rely on a mistaken belief unless that belief was reasonable would be, "““an undesirable and unnecessary conclusion and the English courts should not arrive at it unless compelled to do so””." On the general issue of a different and higher test for state agents, and for the Armed Forces in particular, some might argue that the state should train its agents to act only on the basis of well grounded beliefs. However, after careful consideration the Government feel that this expectation would place a tremendous burden on service personnel who already have to take snap decisions under high pressure when on duty in dangerous parts of the world. We question whether noble Lords would wish to impose such a burden unless we were compelled to do so by law. Moreover, this question again goes back to the credibility of the mistaken belief. Those considering a case, or a jury taking its decision, may well find an unreasonable mistaken belief on the part of, say, a highly trained member of the Armed Forces less credible than if held by a frightened member of the general public. There is therefore already a self-adjusting mechanism in the law without having to set a different test. Setting European convention debates to one side, introducing two tests for self-defence—one for the public and one for state officials—risks further confusing the matter. The Government are clear that there should be one test for all. We must be clear and consistent and not unnecessarily burden people, whether civilians, police officers or members of the Armed Forces, with additional pressures in those very difficult situations. I therefore urge the noble Earl to withdraw his amendment. Although I appreciate that the noble Lord, Lord Neill, and others have made an attack on the whole clause—I will return to this in the event that the amendment to strike out the entire clause is advanced—the clause is primarily an attempt to clarify the common law and to keep it as it is rather than to permit innovation.