§ Order for Second reading read.
§ 12 pm
§ Mr. Roger Gale (North Thanet) (Con)
I beg to move, That the Bill be now read a Second time.
As you would expect, Mr. Deputy Speaker, the main body of my remarks will be addressed to the content and structure of the Bill, but it might help the House if, before I embark upon that fairly detailed analysis, I spend a few moments dealing with its pedigree.
I shall start by quoting from The Times of 2 January this year. At the beginning of the year of our Lord 2004, "The Thunderer" announced, in measured terms, "Radio 4 listeners want right to kill intruders". Under the byline of one Mr. Greg Hurst, it continued:It began as a quirky idea to pad out the Today programme over the quiet Christmas holiday period: ask listeners to nominate a change in the law and then vote for it. Stephen Pound, a pliant Labour MP with an appetite for publicity, stood by ready to introduce a Bill in the Commons.By yesterday morning, however, the Radio 4 programme had a potential disaster on its hands. The winning Bill, it announced, would allow homeowners to use any means to defend their property. Any means? Not reasonable force, as the law currently allows? Using deadly force? Shooting people? Apparently so.
The "Today" programme had auditioned its listeners to come forward with ideas for legislation. The "Today" editorial team of which I was a minor member some years ago would probably have listened to the suggestion of a no doubt bright, able and creative researcher, congratulated the author of the concept on a most valuable contribution to broadcasting, then put the matter quietly on the spike. The current team appears to be rather different. The wheels were set in motion and there was, I suppose, an awful predictability about the outcome Having taken the "Pop Idol" approach to politics, Radio 4 trailed the fact with the words, "Our friendly MP is going to introduce your Bill."
As you know better than most, Mr. Deputy Speaker, it is the courtesy in this House that, if one Member intends to attack another, it is customary to give him notice beforehand I have not found it necessary to give such notice to the hon. Member for Ealing, North (Mr. Pound) because I do not intend to attack him at all. I will now damage his reputation still further: he is a personal friend. He would say that, if The Times describes him as having an appetite for publicity, it is only equal and commensurate with my appetite for the same. I can say that in all fairness because he and I used to share a Sunday morning broadcast programme together. It was so successful that we decided that we would be better off staying in bed and ringing up the listeners. I believe that that was the point at which we made the right decision. However, he appears to have gone one step further and sought the fame of the Radio 4 "Today" programme.
In The Times on 2 January, Mr. Simon Jenkins wrote:Where would we be without the BBC? Not content with usurping the scrutiny function of the House of Commons, it now purports to legislate. Yesterday, it presented Parliament with a Bill to allow homeowners to shoot all burglars on sight. This was justified by something called a 'listeners' poll' which a tame Labour MP … had agreed to present to the House of Commons, sight unseen.1147 Mr. Jenkins is known to this House as a capable journalist, but I fear that he was profoundly wrong on many counts in his opening paragraph. However, he was right in one specific regard, namely his attack on the public service broadcaster for its endeavour to interfere in the course of legislation in a manner that many of us on both sides of the House regard as wholly unacceptable.
§ Mr. Eric Forth (Bromley and Chislehurst) (Con)
I give notice, Mr. Deputy Speaker. that if I catch your eye, I would like to say a few uncongenial words about the hon. Member for Ealing, North (Mr Pound). Does my hon. Friend agree that many Bills that arise in the House, particularly on Fridays, are originated by unpleasant single-interest pressure groups? The distinction between an unpleasant single-interest pressure group and the mighty BBC is a difficult one to make.
§ Mr. Gale
My right hon. Friend will no doubt go further down that road if he catches your eye later, Mr. Deputy Speaker. For the moment, however, it is not my intention to do so.
I took the matter of this process up with the editor of the "Today" programme on Radio 4, Mr. Kevin Marsh. Mr. Marsh took exception to my criticism of his vehicle and wrote to me to say that evenas we speak, we are working on drafting a piece of legislation.Now, the BBC has many admirable qualities. It produces hours and hours of fine televisual and radio broadcasting, but I do not believe that it is the business of the public service broadcaster of this country to engage in the drafting of a piece of legislation. I took this up in a letter to the then editor-in-chief and director-general of the BBC on 13 January. Mr. Dyke and I did not agree—as we have not on other occasions—on this issue.
Let the House not misunderstand me. I believe that the purpose behind the BBC's exercise was founded in good faith. It is a sadness to us all that the public take far too little interest in our proceedings and in the democratic process, and that they believe that they have no voice and no effect. That is demonstrated much too frequently in local and national polls at election time.
Had the BBC wanted to pursue the process of following a private Member's Bill through both Houses of Parliament, it would have been remarkably easy for it so to do. It could have taken the Sustainable and Secure Buildings Bill, which had its Report stage and Third Reading here this morning, and traced it right the way through Second Reading, Committee, this morning's proceedings and onwards into the House of Lords. That would probably have served the useful purpose of telling people outside this place how vulnerable private Members' Bills are, and how difficult it is to get something on to the statute book even if the cause is of the most just. However, the BBC chose not to do that. It went down the route of finding the "listeners' law", and the result was inevitable. It came up with a shortlist of many worthy subjects, but the overwhelming vote of the listeners to the programme that describes itself as the nation's flagship current affairs programme was for a 1148 subject dear to the listeners' heart. It was a subject trailed widely in the popular press—the householder's Bill, as it was called.
§ Dr. Nick Palmer (Broxtowe) (Lab)
To clarify the matter, as the hon. Gentleman describes the vote as overwhelming, is he aware that it was in fact 37 per cent.?
§ Mr. Gale
It was 37 per cent. of a vote in which there were about another eight candidate subjects, if I remember rightly; the hon. Gentleman probably remembers precisely. That was an overwhelming vote. Tens of thousands of listeners apparently voted for this subject.
The reaction of the production team was equally predictable—sheer horror. The friendly MP regarded the subject as too reactionary and the listeners' law hit the buffers. I have made it plain that I do not believe in that manner of approaching the process. The BBC made a profound mistake, and I hope and believe, and think that I know, that at least behind the scenes it has been agreed that that kind of stunt will not be tried again. To take the point made by the hon. Member for Broxtowe (Dr. Palmer), given that many thousands of people voted in the belief that their view was going to be brought before Parliament, my hon. Friends and I decided that we would have a go at wiping a little of the egg off Auntie's face, and see whether we could achieve something in the direction of the change to the criminal justice law that was required.
To return to the point made by the hon. Member for Broxtowe, there were reports that the gun lobby rigged the vote. If that is false, it demonstrates a desire on the part of the public service broadcasters to ignore the voice of their listeners, and if it is true—I have no way of knowing—it must demonstrate the dangers, and highly undesirable vulnerability, of phone-in polls of this kind.
Why are we here today and why did so many people vote for this subject? The bottom line is that they did. Their motivation, and the motivation of many represented by those who are here today and those who are not, lies in widely reported and possibly sensationalised descriptions of high-profile cases. One in particular, many people believe, represented a gross miscarriage of justice. I am not here to present that case. This is not, as it has been described in shorthand terms by the popular press, the Tony Martin Bill, any more than it is the listeners' law. What my right hon. and hon. Friends and I have done is to seek to construct an amendment to the criminal justice legislation that reflects the concerns of the people. Our approach is not a knee-jerk reaction to one hard case out of which we are seeking to extrapolate bad law, because hard cases do make bad law. We are seeking to address the underlying perception that the criminal justice system has moved towards the criminal as the victim and away from the interests of the real victim of the crime—in this case, the householder, be that person tenant or house owner. I will return to that point later.
Let me now turn, perhaps not before time, to the substance of the Bill. If the Bill's pedigree could be described as part thoroughbred and part mongrel, its provenance is sound. It was drafted by an expert parliamentary draftsman. Members on both sides of the 1149 House may quarrel with some of the content, but I defy them to say that the Bill is technically unsound. Sadly, that cannot be said of some private Members' Bills. For that we owe a great debt of gratitude to the draftsman, Francis Bennion.
The Bill's provisions are confined to dwellings because it concentrates on defence of the home. Article 8.1 of the European convention on human rights, which is enforced by the Human Rights Act 1998, states that every person has a right to respect for his or her home and that that requires the state to give special protection to people in their homes, in addition to the protection given to individual citizens by the law generally.
The sanctity of the home has long been recognised by common law. Justifying the strict laws against burglary, which was designated by law as a crime committed by breaking and entering a dwelling house during the hours of darkness at the time, Sir William Blackstone said famously, "An Englishman's home is his castle". What is less famous but equally relevant is the rest of that statement:Burglary is done at the dead of night, when all the creation, except beasts of prey, are at rest; when sleep has disarmed the owner, and rendered his castle defenceless".That goes to the heart of the Bill.
In relation to criminal offences, the Bill provides a special defence for the householder in clause 1, and requires Crown prosecutors to pause and consider before prosecuting that householder. In relation to civil liability, clause 3 repeats much of what is said in clause 1. That is necessary simply because of the different standards of proof applying in civil and criminal cases.
§ Mr. Gale
My right hon. Friend is of course right. The quotation is historic and applies to a time when law-abiding burglars only committed their crimes at night.
The heading "Home defence (criminal liability)" in clause 1 indicates that the clause concentrates—as, indeed, does the whole Bill—on the defence of the home. It provides that the person being protected, person A, is protected when he or she is in a dwelling. "Dwelling" is defined later in the Bill. That person must be either the occupier of the dwelling, or present with the licence—the permission—of the occupier. That is standard statutory language. The occupier is the person currently in occupation, who may or may not be the owner. With respect to Mr. Jenkins, his article in The Times was palpably wrong, at least in regard to this Bill. The Bill does not differentiate between owner and tenant; it deals with the occupier.
When the circumstances specified in terms of the occupier exist, the occupier is given special protection in respect of action that he takes against an intruder—person B. The person qualifies as B if he is trespassing in the dwelling. Again, that is a well understood legal term, covering anyone who is in the dwelling without consent. 1150 I shall come back to the nature of "dwelling", which is defined later in the Bill. Clause 1(2) also treats as an intruder—as B—a person who is attempting to gain unlawful entry, but has not yet succeeded in doing so. The person outside the window endeavouring to force the locks is as vulnerable to this defence as the person who has already broken in.
Clause 1(2) protects the occupier against the person or property of person B, the intruder, for one of five listed reasons, which are self-explanatory. The wording of the last of them, that person A is acting "in prevention of crime", might cause some consternation, so I shall clarify it. It is taken from paragraph 9.10 of the Law Commission consultation paper No. 173, "Partial Defences to Murder". Under the clause, a person must genuinely believe that he or she is acting for one of the five reasons, but it does not matter if that person is mistaken in his or her belief.
The clause has been subjected to some criticism by barristers because, curiously, they do not believe that it goes far enough. There is a legal concern, which may have to be addressed in Committee, that in dealing with the householder in this way, those of us who are promoting the Bill have sought to protect too narrow a special interest group. That is even though the context of the dwelling and the occupier is very broad. Another concern is that the circumstances as described in clause 1 may be too narrow. I am perfectly prepared to concede this morning that we will need to address that when the Bill enters Committee, as I hope that it will.
The Law Commission paper that I have cited goes on to say that a person should not be convicted where theacts in question were undertaken in self-defence and may have been an instinctive response to the perceived level of risk",and comments:It is hard to see why the law affords greater protection to those who kill in response to insults"—under the existing defence of provocation—than to those who do so while protecting their homes.The criminal standard of proof, which is proof beyond reasonable doubt, applies to clause 1, so to defeat the defence in clause 1, the prosecution would have to prove beyond reasonable doubt that the householder did not genuinely believe at the time, in the circumstances then prevailing, that he or she was acting as stated in clause 1.
The title of clause 2, "Home defence (restriction of prosecutions)", suggests that it is intended to restrict the number of prosecutions of householders and others engaged in the defence of the home. The Crown prosecutor arrives at the point of considering public interest only where the facts indicate that the evidence exists to give a strong prospect of obtaining conviction. Even where that is the case, the prosecution must not be instigated unless the public interest requires it. Clause 2 adds a further factor: that the public interest requires householders to be fully protected by the law against intruders into their home.
§ Dr. Palmer
Just on a technical point, I am puzzled by clause 2. In what circumstances does the hon. Gentleman believe that a Crown prosecutor would think that a potential prosecution was valid under clause 1, or despite clause 1, but nevertheless should not be pursued because of clause 2? In other words, is not clause 2 superfluous if we have clause 1?
§ Mr. Gale
I freely concede that there may be an element of belt and braces in the two clauses. The hon. Gentleman is right: clause 2 merely seeks to underscore the provisions established very clearly in clause 1. It is the carrying out of an act in the belief that it is necessary that is the defence.
Given the issue that the hon. Member for Broxtowe has just raised, I shall intervene on myself, as it were, by pointing out one of the criticisms that is made of the Bill. It is made by those who clearly have not studied the law as it stands—as, indeed, I had not until I began this process. The popular perception is that it is currently in order to use reasonable force, without any change to the law. The difficulty with that is that the Crown Prosecution Service—the system—decides what is reasonable force. The public Perception is that, increasingly, that pendulum has swung in favour of the criminal and away from the victim.
I shall come back to that issue, on which I was given some very interesting information this morning by someone who clearly knows what he is talking about. But the difference between the law as it stands and this proposal is that the householder—we need to remember that the householder is the innocent party; the burglar has not been made to burgle—would decide what is reasonable force, not the CPS. If that answer satisfies the hon. Member for Broxtowe, I shall move on.
The title of clause 3—"Home defence (civil liability)"—makes it clear that the clause concentrates on the defence of the home, as indeed does the Bill as a whole. But it is necessary to restate some parts of clause 1 because as I have said, there is a difference in the standards of proof required for civil and for criminal cases.
Clause 4—the Bill's final clause—defines what is meant by "dwelling". The definition is taken from section 63(1) of the Family Law Act 1996, and makes it clear that "dwelling" covers not only a house or flat, but a caravan, houseboat, yard, garden, garage or any part of the curtilage of what most people would describe as—however humble—their home. Subsections (2) and (3) of clause 4 contain the usual transitional provisions, which ensure that the legislation cannot be applied retrospectively. This House has a sad recent history of embarking on retrospective legislation. It is not the intention of the Bill's promoter and sponsors that any of its provisions apply retrospectively. It is not the intention to permit redress to anybody who feels that they were wrongfully convicted in the past.
I have dwelt on the issue of public perception quite deliberately. I defy any Member of this House who is in touch with their constituents—that is most of us—to say, hand on heart, that people do not feel that these days the criminal gets a much better deal than the real victim of the crime. There is a perception that one's home is no longer one's castle. In fact, in some circumstances even the law is not ready to say that one's home is one's castle. I was interested to hear the hon. Member for Corby (Phil Hope) recall at the tail-end of the previous debate how he and his wife had been burgled. Their home was ransacked and violated, and those of us to whom that has happened—again, sadly, that is probably most of us—know how dirty and genuinely violated that makes one feel. The police told him that in some way he was culpable because he had not locked his house up securely enough. He felt 1152 compelled to visit the hardware shop to buy new locks and new catches for his windows; and he fitted them to make his home more secure.
I am not for one moment suggesting that it is not the duty of householders to seek to ensure the security of their property. The days when people living in a village could leave the back door and the front door open all day and probably all night are long gone. However, the suggestion that it is the fault of the householder when someone breaks in tells me that the world has largely gone mad.
This is not, as the press has sought to describe it, a Bill to allow anyone to shoot a burglar. Let me put before the House the case not of Tony Martin, but of Robin Baker-White, a former high sheriff of Kent. He has had intruders on his property a number of times, and he and his wife have felt violated by having their possessions stolen. On one occasion—he has a licensed shotgun—he fired over the heads of the people retreating from his home with his goods, but the police confiscated his gun.
This Bill is not about blasting to eternity with the family blunderbuss the 12-year-old who kicks a football into a garden and climbs over the fence to retrieve it. It is about sending a message to the courts, to the judicial system and to the criminal fraternity that now goes out armed—as an aside, since the abolition of capital punishment for murder—as a matter of course. Nowadays if there is any redress, it tends to be on the side of the criminal rather than the householder.
§ Dr. Palmer
In that example, if a 12-year-old kicked a football into his garden and the hon. Gentleman thought that he was trespasser, does he believe that he should be immune from prosecution if he shot him?
§ Mr. Gale
The Crown would have to prove beyond reasonable doubt that the action was malicious. It is just possible that someone intruding in the garden at night could be there for a reason other than seeking to cause harm to the household, but with respect, in asking his question, the hon. Gentleman is going down the road about which the public are complaining, where the emphasis is on the side of the intruder—of whatever age and for whatever purpose.
It may not be at the dead of night, and it could even happen at midday, but if I am upstairs and hear someone break into my home—I hear the crash of breaking glass and people moving around—and I feel threatened, I believe that I have the right to protect myself, my wife and others dear to me, my animals and my property by whatever means comes to hand. That is right so long as I believe at the time that I am doing what is necessary. That is my belief: a court cannot determine it. A court does not know the fear that is in my belly or my concern for my wife at that time.
A broadcaster put it to me recently that an intruder could be mentally ill or on drugs. I said, "Well, forgive me, that's all right, then". The fact that the man is perhaps mentally ill, perhaps on drugs, might be a defence for killing me and raping my wife. I am sorry, but I do not buy that argument. An Englishman's home is his castle, however humble it may be, and I believe that he has the right to defend it.
1153 Why the support for the Bill? Before hon. Members ask, "Where are they?", I point out that my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth), one of the supporters of the Bill, is in his place and hopes to catch your eye, Mr. Deputy Speaker, as is my hon. Friend the Member for South Norfolk (Mr. Bacon). To our colleagues, my hon. Friends the Members for Hexham (Mr. Atkinson), for Canterbury (Mr. Brazier), for Old Bexley and Sidcup (Derek Conway), for Aldershot (Mr. Howarth), for Epping Forest (Mrs. Laing), for Croydon, South (Richard Ottaway), for Isle of Wight (Mr. Turner), for Congleton (Ann Winterton) and for Macclesfield (Sir Nicholas Winterton), I have indicated that I was prepared to take the House step by step through the Bill—as I hope that I have done—in the knowledge that those who had constituency duties to fulfil should be able to do so. Many of those I have mentioned will however be available, if required, to serve in Committee.
Does the Bill deserve a Second Reading? I believe that it does. I am indebted to Mr. Andrew Hawkins of Communicate Research. Hon. Members may have seen the results of his poll, which were published at 1 o'clock this morning. Mr. Hawkins conducted a survey of 201 Members of Parliament—or almost a third, which is a fair sample. I take no particular satisfaction from the poll, because 56 per cent. of Members on both sides of the House believe that the law should stay as it is. A mere 4 per cent. believe that the law should be changed so that householders are permitted to use any means—as the Bill states—to defend their homes in the case of burglary. However, 40 per cent.—so a total of 44 per cent.—believe that the law should be changed so that householders are permitted to use greater force, but not any means whatsoever, to defend their homes in the case of burglary.
The public, in radio and press polls, have made their view abundantly plain. The House has a clear duty to listen to that public voice, as well as to the honourably expressed views of hon. Members on both sides of the House. The balance at the moment is a fine one. A significant minority of hon. Members, without having heard the arguments that I have made today, believe that the prevailing circumstances warrant change.
I received this morning a letter containing a copy of an article written by Mr. Robert Henderson. I wish to place parts of it on the record, because they are relevant. The article defines the right to self-defence in English law and it states:The law on reasonable force as it is presently interpreted goes something like this: if you are attacked with a knife you may defend yourself with a knife: if you are attacked with bare fists you may defend yourself likewise. Do more in either instance and you will be in danger of being charged with an offence against the person, anything from common assault to murder. Pedantic proportionality is all. If you carry on assaulting your assailant after he is disabled, you will most likely face charges. If you have the opportunity to run away but do not, that may count against you in any assessment of whether you should be prosecuted.
§ Mr. Deputy Speaker (Sir Alan Haselhurst)
Order. I remind the hon. Member for Ealing, North (Mr. Pound) that only Ministers may approach the officials in the Box. He should resume his seat.
§ Mr. Gale
I thought for a moment that the hon. Member for Ealing, North had been promoted to Parliamentary Private Secretary.
Mr. Henderson calls the present lawdemonstrably absurd. It assumes that people under attack can reasonably be expected to make judgments in the heat of the moment which in reality require calm consideration.That is the thrust of the argument. At the moment, the law assesses reasonable force, but it is not the law under threat, whether in broad daylight or at dead of night. The person under such threat is the only person who can reasonably assess reasonable force in the circumstances. The Under-Secretary may oppose the Bill in principle, but I ask her to recognise that this measure, or something like it, has considerable support inside this House and very considerable support—probably a significant majority—outside it. I believe the technical structure of the Bill to be largely perfect, but it is the job of the Committee to address any imperfection.
I should like to think that this House will allow the Bill to receive its Second Reading unopposed and that it will let us do our job in Committee to address the concerns of hon. Members on both sides of the House. If we fail to satisfy their legitimate demands, there will be future opportunities on Third Reading or Report to kill the Bill. But to do so now would be a slap in the face of a very concerned British public.
§ Mr. Stephen Pound (Ealing, North) (Lab)
Mr. Deputy Speaker, I apologise for my unwitting solecism earlier. I meant no disrespect to you or to the House.
I thank the hon. Member for North Thanet (Mr. Gale) for the generosity of his introduction, particularly where it strayed into the personal. He said that the Bill was part pedigree, part mongrel. We heard a thoroughly pedigree speech from the hon. Gentleman. Now the House will hear from me. [Laughter.]
With your indulgence, Mr. Deputy Speaker, I should like to respond specifically to the question of pedigree that was raised by the hon. Gentleman, a man more familiar with the by ways of the BBC than I ever will be. I remember with great affection the time when we were co-presenters on a Sunday morning on LBC. He may not have enjoyed it, but our listeners did. I know that because I spoke to both of them. [Laughter.] I enjoyed it immensely.
I would suggest that the listeners' law—which later became the householder's law, or the Tony Martin law—was a genuine attempt to connect the people of this country to the process of legislation passed by this House. The idea was not some populist attempt to increase ratings, but a genuine attempt by a responsible broadcaster—the best public service broadcaster in the world, the BBC—to connect the two; the people of this country and the process of legislation.
The impression might have been given that I was some publicity-hungry jackanapes seeking to lend his name to any passing fad or fancy. 1155 [HON. MEMBERS: "Hear, hear."] I deny that. In November 2002, following the private Member's Bill ballot—and by a combination of extreme good luck and the able assistance of Baroness Gardner of Parkes—I was able to bring a private Members Bill to this House.
I applied again and was asked whether, if I were lucky enough to be drawn again, I would take soundings from the nation. What parliamentarian could resist the temptation to take the pulse of the nation and then respond to it? We asked the people What legislation they wanted and came up with a shortlist of 20. They were whittled down to five by a group of three people, overseen by a fine, capable and generous journalist of great standing, Kevin Marsh. The others were myself, a journalist—one Julia Hartley -Brewer—and a tradesman from this parish who, at the time, ran a bookshop up the road and is now, oddly enough, the Conservative candidate for North Norfolk, lain Dale.
I make no secret of the fact that the Bill that I wished to propose was the Organ Donation (Presumed Consent and Safeguards) Bill, which seemed to me a sensible piece of legislation, very much in keeping with the public mood, relevant and necessary. There were other proposals, including a measure to ban Christmas music being played in shops in October—a sound, sane and sensible piece of legislation that commended itself to many. Another would perhaps not have been so popular in certain quarters of this building—a Bill on term limits for Prime Ministers. Another was on overtaking on the left on motorways. Mr. Iain Dale, the Conservative candidate for North Norfolk, was particularly anxious to push what was referred to at the time as "Tony Martin's law." Despite that, when the shortlist of five was drawn up, the overwhelming majority of votes was in favour of the organ transplants Bill.
However, as Christmas approached and, no doubt, many Radio 4 listeners headed for the ski slopes, the airwaves and e-mail ether were filled with a sudden flurry of messages that had been stimulated in particular by two organisations that I, in a fairly sheltered life, had never previously encountered: Cybershooters and Firearms News. The two websites—I believe that that is the proper technical term—advised people from Alabama to South Africa to e-mail quickly in support of what they described as "a Tony Martin law." By Christmas eve, my worst fears had been realised. Not for the first time, I was to be lonely at Christmas, disappointed when the reasonable and decent proposal disappeared beneath the wintry blizzrd of e-mails.
Yes, I admit it, I can do no other for I cannot lie—well, I can, but shall not on this occasion—that when on new year's day, having just climbed a mountain in the lake district and paused for a refreshing cigarette and pull on my hip flask, I was asked by the BBC for my reaction, I might have used language that veered toward the unparliamentary. It was an honest reaction, and honesty in a politician is to be treasured. The fact remains that a large number of people—some 37 or 38 per cent. of those who voted—supported the idea of the present Bill. The hon. Member for North Thanet is absolutely right in one aspect alone of his speech: there is genuine public concern, an issue of perception and fear. However, the worst possible way to respond to that is to introduce a piece of legislation such as the one before the 1156 House today, because that will do nothing to allay people's fears or to resolve the problem, but everything to terrify people.
§ Mr. Forth
I am interested in this part of the hon. Gentleman's analysis. Like me, he will recall such measures as the Dangerous Dogs Act 1991 and, even worse, the Firearms (Amendment) Act 1997 and preceding firearms legislation, which were knee-jerk reactions to a public perception or public fear at the time. I am sure that he agrees that since most firearms were banned in this country, the number of crimes committed using firearms has rocketed. In some ways, I accept the hon. Gentleman's point that we should never legislate in haste, simply in reaction to a perceived problem at the time.
§ Mr. Pound
There are certain sentences that I would not wish to see on my tombstone: one is, "I entirely agree with the right hon. Member for Bromley and Chislehurst." However, those who remember species called something like "the Doggo Argentino" and "the Japanese giant mastiff" being introduced into the Dangerous Dogs Bill are only too well aware of the problems of that type of legislation. I was counselling precisely against that. I suggest that the Bill before us would not only fail to resolve a problem, but make matters worse. That is what deeply concerns me.
May I respond to two specific points before I come to the meat and substance—fairly thin substance, but substance it is for all that—of the Bill? I certainly will not attack the hon. Member for North Thanet. He and I once spent St. Patrick's day in Ottawa. While I remember little of the detail of that day, a general warm feeling of happiness remains with me. I hope the same remains with him. He mentioned Robin Baker-White. I have written to the former lord-lieutenant, whom I consider a good, decent and honourable gentleman. I have also discussed the matter with his Member of Parliament, the hon. Member for Canterbury (Mr. Brazier).
Mr. Baker-White's shotgun was not confiscated. It was taken away for standard analysis, as happens in every single case in this country where a firearm is discharged, except on a rifle range. The shotgun was tested and test-fired. The bore and the rifling were checked against the cartridge, and the shotgun was returned to him—end of story. That is an example in which the perception is far, far worse than the reality.
A few weeks ago, the trial took place of a man in the north-west who stabbed an intruder to death with a bread knife. That man was found innocent; the case was dismissed. What happened was considered to be justifiable and the defence within common law was heard and agreed to.
The second name to be mentioned is that of Mr. Tony Martin. I have to say that building a case on the foundations provided by Mr. Martin is doomed to failure. I have met Mr. Martin on a number of occasions and I say quite frankly that, for all his eccentricities and all his fairly bizarre behaviour, there are certain aspects of his self-justification that no Member of the House would in any way support. To a certain extent, that taints the thrust and content of the Bill.
§ Mr. Gale
First, the hon. Gentleman must be aware—I am sure he was listening—that I specifically said that 1157 my colleagues and I have carefully not founded the Bill on that ground for precisely those reasons. If he were to speak to Robin Baker-White, former high sheriff of Kent, he would find that considerable distress and concern were caused by what happened at the time and afterwards in terms of the legal process. Is the hon. Gentleman seriously suggesting that under the Bill the person who was acquitted of stabbing somebody with a bread knife would have been in court at all and subject to that further distress?
§ Mr. Pound
I thank the hon. Gentleman for that and I also note for the record the correction that Robin Baker-White was high sheriff of Kent, not a lord-lieutenant. I am not greatly familiar with the hierarchy of the shires. When a person is killed, there has to be an inquest, a hearing and some legal procedure. That happened in this case. Common law applied and the accused was acquitted. I do not think that that is a problem.
§ Mr. Pound
In a moment. I can understand the reluctance of the hon. Member for North Thanet to have the matter associated with the name of Mr. Tony Martin. While I appreciate and understand that, and would wish to accommodate him, I must tell him that there is no way in which the Bill can be divorced from the name of Tony Martin. That is impossible. Before I explain why in detail, I give way to a Member who represents somewhere else in Norfolk.
§ Mr. Bacon
South Norfolk. The hon. Gentleman is right in saying that there has to be an inquiry of some kind if there is a death. He used the word "inquest", and of course he is right about that as well, but there does not have to be a prosecution. That is the point that my hon. Friend the Member for North Thanet is making. Surely the hon. Gentleman agrees with that.
§ Mr. Pound
The hon. Gentleman displays the nimbleness of wit that I admired so much when we were at university together, although I should say that I was a mature student at the time. If one is using the common law defence, one has to offer that defence in some forum. Clearly, the Crown Prosecution Service could decide not to prosecute but, in the interests of transparency and precedent, it is far more logical and sensible for there to be an examination and an exoneration. Exoneration in court is far more significant and telling than the bureaucratic tick of a box that says that there will not be a Crown Prosecution Service action. That is far more important. I give way to another rural Member of Parliament.
§ Matthew Green (Ludlow) (LD)
I fully concur with virtually everything that the hon. Gentleman has said. There is a problem if things do not go to trial, which can be for reasons other than to establish guilt or innocence. There may be a lack of evidence, so there could be uncertainty in people's minds as to whether someone was guilty or innocent of a crime. It is far more 1158 satisfactory to find people not guilty in court. After all, British law works on the principle of innocent until proven guilty.
§ Mr. Pound
Th hon. Gentleman makes a telling point. I grew to admire his intellect when we shared a cabin in the Royal Navy, although I was a mature entrant. It is precisely that. Had this particular case not gone to trial, there would have been any number of possible interpretations as to why it did not. That decision is crucial from the point of view of the exoneration of the individual and the creation of a precedent. The process must be seen as it is. The hon. Member for North Thanet talked about perceptions. We must realise how important this issue is. Whereas a perception may be an intangible thing that one cannot get a grip on. we can influence its drift and direction.
As I said, I have met Mr. Martin on a couple of occasions and I found him at the time perfectly amiable. He was, as I say, a tad eccentric. I cannot blame him for having an uncle who founded the National Front. I have some doubt about the fact that he drew £87,000 out of a bank in Swadlincote and failed to declare it when he made an application for legal aid. He has certainly made a number of utterly bizarre statements, includingI can assure you; most people who have had an association with me are never quite the same again".Following a visit to the Cubana restaurant, which may be known to certain right hon. and hon. Members on the Opposition Benches, he said:I have never heard such a racket in all my life. I wouldn't be so rude as to say anything at the time but if I had a bloody shotgun I'd soon quieten that place down".He also said thatWomen are a dish to be savoured … a bit like peasand thatPeople used to say I talked a load of rubbish but personally I think they just don't understand me.That may give the impression of a slightly eccentric farmer living fairly far in the country, but what I would like to say now has to be said on the Floor of the House at some stage today, because it has not often been said before. We have talked about Tony Martin and the law. We have not talked about Fred Barras. He was 16 when he was shot in the back with an illegally held pump-action shotgun. He died without the last rites, with his back to his murderer. He will always be 16 because he will never see another birthday.
Do we think, for all the sins of Fred Barras, for all the crimes that he committed, that that boy was so beyond redemption, was so incapable of being saved, of ever turning over a new leaf and becoming a responsible member of society. that he deserved the fate that he met in that lonely farm house in Norfolk in the middle of the night, as he turned to flee and a second blast of the shotgun caught him in the back and ended his life there and then, where he died lonely, without benefit of the clergy? Do we honestly believe that any 16-year-old cannot be redeemed? Do we believe that the whole criminal justice system of this country is so mired in failure that no person can ever, ever take another path in life? Do we believe that at the age of 16, one has cast one's life so much in stone that one will never, ever see another way of living? In the case of Fred Barras that, sadly, will never be known. Fred Barras is dead.
1159 Fred Barras was killed by a man who served a few years in prison and became a national hero for it. Fred Barras was killed by a man who influences debate and discussion not just in the House, but throughout the country to this day and will continue to do so. Those people who wish to prop up a political career with the bones of a 16-year-old boy are nothing but despicable. I mean nobody in the House today when I say that. We may talk about such marvellous concepts as an English person's home being his or her castle—yes, theoretically, let us do so—but let us never forget that behind the theory, behind the parliamentary draftsmanship, behind the fine words, we can still see the dead body of a 16-year-old boy. As far as I am concerned, nothing can ever justify that.
If somebody broke into my house or attacked my 16-year-old daughter, yes I would use a baseball bat. I would use whatever came to hand, but it would be proportionate and on the basis of the facts at the time. I would not have prepared it. I do not prop a bat behind the front door. I would not illegally obtain a pump-action shotgun, I would not remove the treads from the stairwell. I would not re-arrange the room to create a trap, and most of all, I do not think that any hon. Member would ever do as Mr. Martin did: shoot someone in the back as they ran away. I would not do that.
I am not some whingeing, Milquetoast, bed-wetting, muesli-scoffing, sandal-wearing liberal. I do not believe in any nonsense about inviting the burglars in to talk them through their unhappy childhood and say, "It's all society's fault, isn't it? It's not really yours." If somebody breaks into my gaff, they get a slap—no two ways about it. What they do not get is a cartridge in the back; nor should they. So I am not prepared to support any piece of legislation that, wittingly or unwittingly, opens the door to the murder of 16-year-olds.
I may have been described as "pliant" in the excellent John McVicars book about the Martin case. I am insulted even more grievously that I am referred to as a "leftie". I can accept those accusations, but even I have my limits. Even I have a point below which I will not sink, and I will not join the inchoate howl of populism that has built up around the ludicrous case of a sadly eccentric man, which ignores the death of a 16-year-old boy.
The Bill has the great advantage of brevity, which is much to be commended. If it achieves nothing else, it will have achieved a further measure of public debate. The hon. Member for North Thanet has been extraordinary in the dedication and devotion that he gives to certain causes. His work in the field of animal welfare has a national and an international reputation. He is a man who has stood on the ice floes of northern Canada to stop people clubbing baby seals to death. Whereas that may not find favour with the right hon. Member for Bromley and Chislehurst (Mr. Forth), it finds favour with many of us.
However, the Bill that the hon. Gentleman has brought before us today is not just fundamentally flawed in intent. The content also needs re-examination. Clause 1(1) refers to the occupier of a dwelling? There is no legal 1160 definition of an occupier. The Bill does not refer to "the legal occupier" or "the authorised occupier". If a group of squatters break into a house, they are then the occupiers of the dwelling. They happen to be tooled up with a few shotguns. Somebody comes round who is a friend of the rightful owner. Lo and behold, they get their head shot off. According to clause 1(1), that is entirely acceptable, and even more so in the case of anyone who is in the dwelling with the licence of the occupier. So if the squatter brings half a dozen friends round for a rave, or whatever they get up to, that is also covered.
§ Dr. Palmer
I fully agree with the commitment of the hon. Member for North Thanet (Mr. Gale) to animal welfare and other issues. He made the point that it would be no excuse if the person breaking in were on drugs or mentally ill, but he does not appear to have considered the possibility that the occupier could be on drugs or mentally ill. Does my hon. Friend agree that that is a serious consideration?
§ Mr. Pound
If one opens the door to hell, one cannot define what comes out of it. The state of mind of someone breaking into a property should be taken into consideration, but it is not a justification—it is something that we should consider after the act. When a person is killed, they lose the right to consideration of their state of mind, which is the danger with this Bill.
§ Matthew Green
I thank the hon. Gentleman for giving way; he is being generous with his time. May I suggest another example of how odd the Bill is? If members of the intelligence services entered a house, which is legitimately occupied by people engaged in drug dealing, organised crime or terrorism, in order to place devices to obtain intelligence, and they were shot in the process, the Bill would apparently let the occupiers of the property off, because a person had entered and they felt afraid. The occupiers could legitimately shoot a police officer or member of the security services in those circumstances.
§ Mr. Pound
I agree with the hon. Gentleman's intervention. The nomenclature for the Bill should be the Kenneth Noye Bill, not the Tony Martin Bill. You, Mr. Deputy Speaker, do not need reminding that Kenneth Noye is a convicted gangster and road-rage killer who was involved with some extremely serious criminals. He shot and killed a person in the garden of his house, and the man whom he shot and killed was a police officer. Kenneth Noye's defence was that an Englishman's home is his castle, that he saw someone skulking in the shrubbery in the middle of the night, and that he killed them. I am sorry, but if we are to come down on anybody's side, I am on the side of the police, not Kenneth Noye. The minute that we open this Pandora's box, we will get those sorts of problems.
I genuinely find it difficult to understand why the hon. Member for North Thanet is promoting the Bill, but I respect the sincerity of his emotions. Clause 1(2) states:not guilty of an offence by reason of any act",1161 and I cannot go down that road. This is not permissive legislation; this is blank cheque legislation. One could boil someone in a basement—that is an act. One could cut someone's throat—that is an act. Under the Bill, any act is permissible.
I cannot believe that any hon. Member can support in their heart or in their head a Bill that says that anyone can do anything to anyone if they feel that that person is entering the premises that they currently occupy, whether they are dealing crack cocaine, keeping an eye out for plain clothes policemen, running a racket or simply squatting in a property. The reference to "any act" is simply not on.
The fundamental point, which I alluded to twice, concerns perception. The hon. Member for North Thanet said that people perceive that the balance has shifted in favour of the criminal and away from the householder. If that is so, we have a duty to do something about it, but we are not obliged to give a knee-jerk response, which is what this Bill represents.
Let us think through the logic. In response to the idea that it is not merely permissible but desirable for us to defend our homes with shotguns, I would have to say that 98 per cent. of people should not be let anywhere near a shotgun. I think that most people would share that view. It may be all very well for people such as Robin Baker-White, who is a man of exemplary background and good character, but if we authorise the shotgun defence for one or two people, be they former high sheriffs or not, we are turning our backs on the truly weak and vulnerable people—the elderly pensioners who are shivering behind their doors in fear in my constituency and in many others. It is not good enough to say to an elderly pensioner, "You may be terrified of crime, but don't worry—get yourself a shotgun, and if anything happens, use it." That is reprehensible and despicable.
The defence of everybody in this country—high sheriffs and pensioners alike—requires a proper, efficient, responsive police force backed by the Crown Prosecution Service and supported in Parliament: a mechanism that in its totality punishes the malefactor and defends the innocent. We should be working towards better, stronger and more efficient policing to defend everybody. The shotgun defence will not work for my weak pensioner constituents. They cannot defend themselves with knives, cudgels or knuckledusters—they need the police.
Were we eventually to agree to the Bill. we would immediately send out one signal above all: the rule of law no longer runs and confidence in the police has disappeared. That would be not just a return to the politics of the caveman era, but a move towards the law enforcement of Texas, Tombstone and Dodge City. I cannot believe that we really want a nation in which the standards of Texas are applied; I would find that appalling, as, I hope, would many others. We need a public defence force—a police force—to defend and represent us. We should be directing our efforts towards further supporting and enhancing their role, not towards vigilantism and defending a man—Mr. Martin—who is at best eccentric and at worst a murderer.
§ Mr. Edward Leigh (Gainsborough) (Con)
The hon. Gentleman knows how much I respect him, but he is wrong to try to defeat the arguments by constantly referring to Mr. Martin. If he reads the Bill carefully, he will see, as I do as a lawyer, that it would not have protected Mr. Martin, because it makes it clear that one has to be acting in self-defence or in defence of one's property, and the intruder was running away at the time. The hon. Gentleman should forget about Mr. Martin and deal with the contents of the Bill.
§ Mr. Pound
I shall just finish replying to the hon. Gentleman. I agree that the Bill probably would not have applied to Mr. Martin. That makes it all the more imperative that we recognise that the existing common law defence applies. We would do that no favours were we to enact the Bill. because it would not only muddy the waters but corrupt a stream of jurisprudence that has flowed for thousands of years. It may not be perfect, but it is probably the least imperfect way of resolving such situations.
§ Dr. Palmer
I believe that Mr. Martin would have a defence under clause 1(2)(b), whereby he does not have to show that he is acting in self-defence, merely that the person against whom he has acted "is, or … would be" a trespasser, as Mr. Barras was.
§ Mr. Pound
I thank the hon. Gentleman not just on my behalf but on behalf of the House. That was extremely interesting and a very good piece of advice. I am a little worried that I might now get a bill for 200 guineas—[HON. MEMBERS: "More!"] I am reminded by those who know more than I do that it should be 2,000 guineas.
§ Mr. Andrew Stunell (Hazel Grove) (LD)
It is being argued that the Bill does not deal with the Tony Martin defence. Perhaps the hon. Gentleman should direct himself to the provisions in clause 1(2)(a)(iv) and (v), 1163 which state that one has only to believe, reasonably or not, that one is apprehending B or otherwise preventing crime to be justified in going ahead and shooting.
§ Mr. Pound
I am grateful to the hon. Gentleman for making that point. I am conscious that other hon. and particularly right hon. Gentlemen wish to speak, so I do not want to detain the House for too long. However, the use of the words "to apprehend" in clause 1(2)(a)(iv) gave me considerable pause; I wonder what precisely they mean. In all honesty, "to apprehend" could mean to say "Stand fast!", which would be a reasonable instruction. Alternatively, it could mean physically to apprehend someone.
We have a problem, and even Dr. Pangloss could not deny that it is a real and genuine one. I would suggest that it is one of the fear of crime and the horror that certain very dramatic high-profile cases engender in the people of this nation. We have to address that problem, and I said earlier that the more mature and responsible way to do that is through the existing structures of criminal law, jurisprudence and the police force, rather than through the lawless, shotgun, wild west vigilantism that—for all the decency, humanity and generosity of spirit of the hon. Member for North Thanet—runs through the Bill. The shadow of the six-shooter lies across the Bill, and I would not normally associate that with a man of such sensitivities.
I genuinely hope that the Bill does not become law. I do not think that it can, because it is unworkable. More importantly. I hope that everyone in the House and outside it will unite around the real problem of lawlessness. We need to defend Tony Martin; he deserves that, and he has the right to a defence. Equally, however, we need to remember that no 16-year-old deserves to die in circumstances such as those.
§ Mr. Eric Forth (Bromley and Chislehurst) (Con)
I want to pick up one of the key phrases that the hon. Member for Ealing, North (Mr. Pound) has just rather usefully given us. That is, "We have a problem." That is the essence of the argument that my hon. Friend the Member for North Thanet (Mr. Gale) is making in the Bill. The difficulty with what the hon. Member for Ealing, North has just said—in what I can only describe as an uncharacteristic rant—is that, in pretending to recognise the problem, he then went on to deny any recognition of it. We must give the Bill much more serious consideration than he suggested.
I was going to indulge in an analysis of the role of the BBC in this matter. I felt that my hon. Friend the Member for North Thanet was unduly generous to the BBC. I will not allow myself to do so, however, because other Members want to speak, and as one of the Bill's sponsors, I do not want to be party to denying the Bill time. I was also going to pull the leg of the hon. Member for Ealing, North, but I will not do that either. I want to restrict myself to the Bill and to why it is important and relevant.
I want to return to the phrase, "We have a problem." The problem is twofold. There is a problem of perception, which has been mentioned both by my hon. Friend the Member for North Thanet and the hon. Member for Ealing, North. We should be very worried 1164 about that perception. To the extent that people have come to believe that the law, both judicial and police, no longer adequately protects them, we in the House, and the Government of the day, are letting them down. That is a very serious matter.
The hon. Member for Ealing, North wanted to suggest that, if we had a sufficient number of police officers, little old ladies would feel secure in their houses. Sadly, I do not think that that could ever be so. My party has a marvellous policy of employing 40,000 more police officers, paid for, incidentally, by an even more radical policy on asylum. Even were we to implement that policy, it would not necessarily give householders the security that we want to give them. It might go some way in that direction, but I do not see that any number of police officers would necessarily give people a sense of security in their homes. Something else must therefore be done. His argument, admirable though that part of it may have been, does not therefore even begin to address the problem of people's increasing feeling of insecurity in their own homes.
We must make a distinction between the unease that people may feel on the street and the phenomenon of social misbehaviour and related issues, which the Government, in fairness, are trying to tackle—I am sure that we will support them when it is appropriate—and what we are talking about now. We are talking about people in a dwelling in which they should feel secure, and someone entering that dwelling, either in pursuit of burglary or something worse, such as assault on a person. Let us not forget that that is the phenomenon with which we are dealing. What we are saying is that the presumption should be that the person in the dwelling is entitled to security, protection and, if necessary, self-protection, and that the person who enters the dwelling is doing something that is illegal and wicked.
§ Dr. Palmer
Is the right hon. Gentleman aware that the Bill, as drafted, kicks in from the moment that such a person touches the garden gate in the approach to my house, because the person will then be seeking to gain entry to my garden, which is covered by the Bill? At that point, if I consider that person to be a potential intruder, I will be entitled to take any action without the force of law applying.
§ Mr. Forth
The hon. Gentleman makes a fair point. That is a matter for proper consideration. At this point, procedurally, those of us who are present in the House must decide whether we are prepared to give the Bill a Second Reading, because we are content with the principle of the Bill, and then perfectly rightly, we may pick up such points in Committee. I will be happy to debate that matter with him in Committee should the Bill reach that stage, as it is a point that should be considered. If someone is acting in a threatening manner at the border of the curtilage of my property, there is a case that I may even then be able to take necessary action. If not—turning the argument briefly on its head—surely we will not say that, if someone at my garden gate or at my hedge is acting in a threatening manner, perhaps threatening my young children, my wife or other members of my family, even then I cannot take any reasonable action. That would again put me at a disadvantage against the person who threatens my property and my family.
1165 There is a real debate to be had—I accept that. For the moment, I would be content to go along with the words in my hon. Friend's Bill—it is my Bill as well, if I may say so, because I am proud to be a sponsor of it—but that could well be a matter for detailed debate. At this stage, however, we are considering the principle.
What worries me, and many others, takes us back to the argument presented so eloquently by the hon. Member for Ealing, North. On whose side do we make the presumption? Notwithstanding his eloquence, I concluded that he was arguing that the intruder should be given the benefit of the doubt and even the protection of the law, because to do otherwise would somehow be wicked, while the home owner should be constrained in every possible way when responding to intrusion or invasion.
That is the case whether the hon. Gentleman likes it or not. It makes no odds if he is not wearing his sandals today. Even if he is not a leftie, that does not matter either. When he reads Hansard, as I know that he will—for we all look at Hansard to see what we said the previous day: it is one of our little privileges and eccentricities—I think that he will acknowledge, in his generous way, that that is the only interpretation that can be placed on his interpretation.
Our own view is that surely, in any reasonable, civilised, law-abiding society, the presumption should be in favour of the innocent occupier of a dwelling, not the person who is breaking the law and entering that dwelling with intent to do we know not what.
§ Mr. Pound
Let me say, for the record—although I speak as one who genuinely does not read his words in Hansard, as I find it embarrassing enough to hear them as I utter them—that I intended to give no such impression. If I did, it was wholly unwitting. I am on record as having consistently said that cases in which an intruder sues a householder because the miscreant tripped over a carpet and bruised his knee are ludicrous and that the presumption should be entirely in favour of the home owner. If I gave a different impression it was erroneous and unintended. and I apologise.
§ Mr. Forth
I am more than happy to accept the hon. Gentleman's reinterpretation of what he said, or what I thought he said, but let me present him with a challenge.
My hon. Friend's Bill constitutes a serious attempt to recognise the problem—the hon. Gentleman said that there was a problem; at least we agree on that—to respond to public unease and to correct something that is increasingly thought to have gone badly wrong in our judicial system and in the relationship between the occupier of a dwelling and the violator of that dwelling. The trouble with the hon. Gentleman's argument is that, in the absence of the Bill, there would seem to be no other solution on offer. It appears that we are content to drift along, accepting the weaknesses of the law and the Crown Prosecution Service, the constraints that are increasingly imposed on the police—not just in terms of their numbers, but in terms of what they can effectively do on the ground—and the helplessness of occupiers who feel that they are being besieged by law-breakers and are increasingly unable to do anything about it.
1166 The importance of the Bill lies in the fact that it seeks to give hope to people who find themselves in that position. We should bear it in mind that occupiers, whether owners or tenants, represent the vast majority in our society. They are the silent majority; they are the law-abiding majority. Wicked people who break the law and invade other people's property still constitute a relatively small number, although some would think it a growing number; it depends on how we interpret the latest statistics. In a sense, it does not matter how many or how few of them there are. They are breaking the law and causing extreme upset and distress. An hour or two ago, in this very Chamber, we were told by a Minister, no less, that his property had been violated and told of the sense of outrage that he felt.
What we are discussing is not a rare occurrence but all too frequent. We are saying with the Bill that it is our duty as custodians of the law to respond to people's feelings of unease and to the natural demand of owners and occupiers to have the proper protection of the law—not just the protection of the police, although of course that is important. I hope that we all share a desire that that should be improved. But the law of this land should be framed in such a way as to give maximum protection to law-abiding occupiers of premises, rather than seeming to lean over backwards to favour the people who are breaking and violating the law, entering premises and causing such upset.
Perhaps uncharacteristically, I shall today keep my comments brief, because I want to give the Bill a fair wind. I am, after all, a sponsor of it. There is much more that I should like to say, but I hope that on this occasion I have given a sense of why I support the Bill, and am proud and happy to do so, and why I think that the hon. Member for Ealing, North, in spite of his eloquence, has not caught the mood of the voters—perhaps not even of his voters. I hope that the Bill can make progress today and that I and other hon. Members will be able to go into some of its details in Committee.
§ Dr. Nick Palmer (Broxtowe) (Lab)
I do not criticise the hon. Member for North Thanet (Mr. Gale) for introducing the Bill, even though I disagree with it. That is for two reasons. First, I do not criticise him anyway because he is a fellow officer of the all-party animal welfare group. Secondly, by introducing the Bill he is reflecting a genuine area of public concern. From some of the things that the hon. Gentleman and his cosponsor the right hon. Member for Bromley and Chislehurst (Mr. Forth) have said, I cannot help feeling that, whereas in the previous debate we had some probing amendments that were not designed to be taken completely at face value, we have here something of a probing Bill, and that they are not entirely convinced that the Bill as it stands is to be taken completely seriously.
§ Dr. Palmer
As with a probing amendment, all that we can do is discuss the Bill as it stands. I am sure that the 1167 hon. Gentleman would not wish us to do otherwise and we cannot discuss hypothetical Bills that might have been presented.
I accept, as I think will all hon. Members who speak, that there is a serious concern among the general public about what they perceive as a lack of clarity over how far householders may go to protect their property. One of my hon. Friends recently had a pub landlord, a very powerful figure—although I appreciate that his was not a domestic property—who felt unable to prevent a group of youths from taking away a case of champagne because they said to him, "If you lay a finger on us, we'll have you for assault." The landlord felt unsure about whether it would be proportionate if he prevented them from taking away his property and did not know what he could or could not do. While he was thinking about it, they disappeared up the road. Many people feel that such examples are all too common. People are not sure where they stand, so they feel that they have to err on the side of caution in case they are prosecuted. I accept, therefore, that the hon. Gentleman is reflecting a legitimate concern.
The ultimate protection in this matter is the system of jury trial. There are cases that we have discussed in other contexts, such as complicated fraud cases, in which there is a case for saying that jury trial is not the best way of reaching justice. But in cases such as those under discussion, jury trial is absolutely essential, because in deciding whether the householder has responded proportionately, it is very important that 12 ordinary men and women make that judgment. I have discussed this issue with my constituents and the hon. Gentleman has doubtless discussed it with his. Most people seem to agree that 12 randomly selected members of the public are likely to have a fair sense of what is a reasonable and proportionate reaction, and what is not.
§ Mr. Bacon
I am listening to the hon. Gentleman with interest. Does he not understand that the law-abiding householder's fear that if he acts, he will be had up in court, is a deterrent to his acting at all? As a result, the presumption is in favour of the burglar and against the householder, which is part of the problem.
§ Dr. Palmer
The hon. Gentleman is echoing the point that I made a couple of minutes ago. The problem is that people are uncertain, and they therefore feel inhibited in taking action that a jury would in fact consider reasonable and proportionate conduct. We cannot dismiss this issue.
There are two basic problems with the proposal, which achieves clarity at the expense of common sense: proportionality, and the people whom it affects. On proportionality, as the hon. Gentleman has stressed, the Bill suspends the entire criminal code if the householder—according to their own judgment, and with no other opinion involved—believes that they are threatened by trespass. As has been emphasised, in such circumstances any act is then explicitly authorised. Let us suppose that the householder believes that the person who has walked into his garden is an intruder. If the householder is of a somewhat paranoid persuasion, he might think that there is a second intruder. Under the Bill, he would be entitled not only to detain the supposed intruder, but to torture him in order to establish whether he had accomplices.
§ Dr. Palmer
I shall read the relevant passage. Clause 1(2) states:Where this section applies, A is not guilty of an offence by reason of any act"—any act, such as torture—done by him in relation to the person … who is attempting to gain entry to the dwelling, if A believesthat he is acting, among other things, "in prevention of crime", and if he believes that the person concernedis, or … would be, a trespasser.In the example that I gave, the householder believes that he is trying to prevent crime by apprehending a second suspected intruder, and that the person he is torturing is a trespasser. Under the terms of the proposal, he would be immune from the process of law. That seems to me, and would seem to most people, disproportionate.
We have talked about an Englishman's home being his castle. An ancestor of mine called Black Douglas had a castle on the borders of Scotland. A neighbouring Laird sent an emissary to discuss a particular feature of their border. When the emissary did not return, the Laird sent a further emissary to ask what had happened to the first one. Black Douglas sent the second emissary back with the message, "You can pick up the first emissary any time—he doth but lack his head." In principle, such a process would be legal under the Bill, so long as my ancestor Black Douglas believed that the first emissary was a trespasser, and that by cutting off his head he was preventing crime.
We have discussed whether Tony Martin would have been protected by the legislation.
§ Dr. Palmer
We can only speculate, but my ancestor would undoubtedly have felt that he was preventing crime, which is covered by clause 1(2)(a)(v).
Let us move on to Tony Martin. I do not want the public to feel that we are treating the Bill frivolously. We all indulge in slightly wilder excursions at some time, but I want to treat the Bill seriously. Tony Martin would, under clause 1(2)(a)(v), be entitled to believe that by shooting Fred Barras he was preventing crime. Indeed, he probably was preventing crime by shooting him, because Fred Barras had a long record of criminal convictions and would likely have gone on to commit some more. Tony Martin could also reasonably say that Fred Barras was a trespasser—no one disputes that. There is no doubt—the hon. Member for Gainsborough (Mr. Leigh) may disagree—that the Bill would have provided Tony Martin with a defence for his action.
§ Mr. Leigh
We could have an argument about this matter in the courts, whenever the hon. Gentleman wishes, but the fact that the intruder was running away 1169 at the time was a crucial consideration for the court and suggests that the Bill would not apply to those circumstances. It would have been very different if the intruder had been running towards Mr. Martin. There, however, he may well have had a defence under existing legislation.
§ Dr. Palmer
The hon. Gentleman makes my point. He says that it would have been difficult, given that Fred Barras was running away, to persuade the courts that Tony Martin could reasonably have thought that he was preventing crime. However, at the very core of the Bill is the assumption that he would not have to show that he was being reasonable. Tony Martin could unreasonably believe that he was preventing crime. It is current law that refers to being "reasonably" of such a belief and proportionate action follows from that, but under the Bill, anyone is entitled to act "unreasonably" without any limit whatever. That is the fundamental flaw in the Bill. Tony Martin is one example, but it is possible to consider more extreme ones. The hon. Member for Ludlow (Matthew Green) mentioned intelligence agents intruding on the property of a suspected terrorist.
That brings me to my second major objection, which is about who the Bill may affect. As I said earlier, one is potentially exposed to the Bill the moment one puts one's hand on the garden gate of a property. That is seen explicitly in clause 4(1), which covers "any yard" or "garden" of a propertybelonging to it and occupied with it.A postman, a Jehovah's witness or anyone else calling on the home and touching the garden gate could—if the occupier believes, reasonably or unreasonably, that the person is an intruder and will be a trespasser when he walks through the gate, or that a crime may be prevented—lawfully be shot. Indeed, the householder would be entitled to do anything. That is clearly indefensible and I do not believe that that can be seriously intended. I appreciate that Bills can always be improved in Committee, but they need a fundamental connection with common sense and reality.
Let me take another concrete example from real life. A British tourist was visiting the United States—Florida, I believe—and on a rainy night, he went a little astray and walked up a garden path to ask the householder the way. The householder saw a figure approaching his house, in the late evening on a rainy night, took out a gun and shot him dead.
That was an innocent British tourist who had done nothing wrong. He was not behaving in a threatening manner, and no reasonable person would say that his behaviour could be interpreted as threatening. However, the Bill would not require that the householder be a reasonable person or reasonably interpret such behaviour. Indeed, as I said in an intervention in the speech by my hon. Friend the Member for Ealing, North (Mr. Pound), if the householder is mentally deranged or under the influence of drugs, it is still not a problem because he would not have to prove that he had acted reasonably. He would merely have to say that in his state of mind at the time he believed that he was preventing crime and that the person approaching his home was a potential trespasser.
1170 The hon. Member for North Thanet said that the Bill was not about the 12-year-old who kicks a football into a garden and is shot by a blunderbuss. However, under the Bill, if a 12-year-old kicked a ball into a stranger's garden and entered it, the householder would be immune from prosecution if he shot the child, as long as he believed that he was protecting his property and that the child was a trespasser. The child would undoubtedly be a trespasser if he had entered a garden to retrieve a ball. If the householder believed that the child might break his greenhouse by kicking the ball around, he could argue that he was protecting his property by shooting him. One might say that the householder was being unreasonable, but the Bill specifies that the householder does not have to be reasonable. He is entitled to take any action against that 12-year-old child, as long as he believes that he is thereby protecting his property.
The basic difficulty of the Bill is that it moves away from the time-honoured principle in British law of the reasonable man. In jury trials we are accustomed to the idea that juries are able to assess the circumstances, listen to both sides of the case. and weigh up whether the behaviour of the accused was reasonable or unreasonable.
§ Mr. Forth
The hon. Gentleman is making a good case for detailed examination of the Bill in Committee. But how would he solve the problem that people are increasingly coming to believe that the benefit of the doubt is given by the police, the Crown Prosecution Service and the courts to the perpetrators of crime, not the victims? Is he prepared to concede that that is a problem and that something should be done to address it, even if he does not believe that the Bill does so?
§ Dr. Palmer
Yes, I am. That is the point with which I started my speech. As the right hon. Gentleman may know, at the Government's request the Law Commission is examining the partial defences to murder, which can reduce a charge of murder to manslaughter. Its remit is to consider the partial defences, with particular reference to domestic violence. Part of the Law Commission's study, the results of which are expected this summer, will include the examination of a possible new partial defence of "excessive force in self-defence". It is a complete defence to show that one has used reasonable force in self-defence as judged by a jury. In order to address the uncertainty that we all recognise exists, there is a possibility that the law could encompass excessive force under constrained circumstances. It would not be a total defence but a mitigating factor and would depend on the degree of excessive force applied.
When the Law Commission comes back with recommendations, we can reasonably discuss where the borderline should be drawn. I concur with the view that it would be better to give greater certainty to householders about where they stand, what they can reasonably do and what they cannot reasonably do. Anyone is entitled to know what is legal and what is not. That is fair. The problem with the Bill is that it starts from the completely ludicrous position that one is allowed to do anything if one believes, no matter how unreasonably, that one is under threat.
§ Mr. Gale
Hard cases make bad law, which is why my right hon. and hon. Friends have studiously avoided the 1171 case of Tony Martin. But if hard cases make bad law, extreme examples make bad argument and the hon. Gentleman has been deploying those. The hon. Member for Ealing, North said in terms—it is on the record—that if someone attacked his wife, he would pick up a baseball bat and let him have it. If that blow to the head of the man attacking his wife is legal, is that reasonable force? If not, the hon. Member for Ealing, North will be before the courts. We are saying that the presumption must be on the side of the householder and not the criminal: the intruder.
§ Dr. Palmer
With respect. what the hon. Gentleman and his colleagues are saying is not that the presumption should be on the side of the householder, but the certainty. The Bill offers a complete, 100 per cent. indemnity for any crime committed under certain circumstances, which seems completely disproportionate.
With respect the hon. Gentleman is missing an opportunity with the Bill. If he had proposed a Bill that, in a more proportionate fashion, had attempted to address the issue of uncertainty, he would have had a more attentive and respectful hearing than has been the case today. I am not calling his motives into question in any way, and he has done us a service in raising an issue of concern to the public. It is important to discuss the subject, but the Bill is not a sensible vehicle on which to respond to that concern.
The hon. Gentleman accused me of giving extreme examples, so let me give an everyday one. Every weekend, I go out for four hours to visit constituents and go to different parts of the borough each time. The overwhelming majority of my constituents are reasonable people who simulate pleasure at my arrival. They may not really feel it, but they say, "It's a long time since we have seen our MP. It is good to see you."
I would not claim in the most passionate moments of my devotion to the borough that every resident of my constituency is reasonable. or even sane. I do not want to give a constituent who is not reasonable or sane a licence to kill me because he sees me approaching his house and gets it into his mind that I might be a burglar. I would be a trespasser because I would not yet have his permission to be on his turf. He might get it into his head that I was trying to get at his property and break in.
As we know, people all too commonly leave doors open or unlocked. It strikes me that, were I a burglar rather than a politician, I would find it easy to break into perhaps one house in 10. However, that fact should not lead people to feel that they are at risk from me.
§ Mr. Pound
Before my hon. Friend is tempted to change career path, may I ask him whether he recalls in the previous exchange a personalisation of circumstances pertaining to myself? Were the hypothetical situation described by the hon. Member for North Thanet (Mr. Gale) to occur, I would want my day in court. I would not want to be exonerated by a rubber-stamp piece of legislation. Does he accept that that would be the reaction of many people who are robust both in defence of their homes, and in defence of the liberty of the nation?
§ Dr. Palmer
Yes, I do. I admire my hon. Friend in many ways and think that he made one of his best speeches today.
1172 I am reminded of the doomed presidential candidacy of Michael Dukakis. He was against the death penalty, and when he was asked whether he would want to shoot someone who attacked his wife, he replied, "Yeah, I would, but I don't think my instinctive reaction should be the basis for law." That was an honourable reply; it might not have done him much good politically, but it was correct none the less. As the hon. Member for North Thanet said, we should base the law neither on hard cases nor on extreme emotions. However, the Bill would legalise unreasonable conduct on the part of constituents who unreasonably believe themselves to be threatened. It is a licence for madmen, and we should not pass it.
§ Mr. Richard Bacon (South Norfolk) (Con)
I am a sponsor of the Bill. The hon. Members for Ealing, North (Mr. Pound) and for Broxtowe (Dr. Palmer) both referred repeatedly to jury trials, but I think they miss the point. People feel that, in many cases, the actions of a householder should not result in their ending up in court, which is what often happens now. In addition, the fear that that might happen is what restrains householders from acting when they ought to do so and ought to be able to do so knowing that they are safe in the eyes the law.
Part of the problem is that the law at present is unclear. I refer to an article from The Daily Telegraph of 2 December 2002 by Mr. Alan Judd. It refers to three cases. In the first, a man was convicted for repeatedly stabbing a burglar who had broken into the flat in which he believed his children were sleeping. In the second, a man who felled a violent schizophrenic who was strangling someone, then kicked him when he tried to get up and resume, was arrested by the police—unlike the schizophrenic—and prosecuted by the Crown Prosecution Service for kicking. In the third—the hon. Member for Ealing. North may have been referring to this case—a man stabbed to death one intruder and seriously wounded another, and the CPS found his use of force to be reasonable.
Mr. Judd quotes an article in The Sunday Telegraph by Mr. Alasdair Palmer, who wrote that what such cases indicate is that the CPSclearly can't decide where the boundary between the reasonable and unreasonable use of force lies, and thus what the law actually is".Mr. Judd asks:How can it be right to prosecute people when the law itself is confused and contradictory? If the lawyers, safe in their offices, can't say what is right, how can we be expected to weigh up the pros and cons during some desperate struggle in the dark? Unclear law is unfair law.The hon. Member for Broxtowe referred to certainty, and he is right: the Bill does provide a much higher degree of certainty. If he wants to argue about that in more detail, I should have thought that the place to do so is in Committee.
I want to raise one other issue, which involves the impact on rural areas. I represent a very rural constituency of 350 square miles. To give the House some idea of its size, the whole of Greater London has 74 constituencies in 650 square miles. Overnight in my constituency there are only two police vehicles with four 1173 police officers on patrol. If someone is apprehended, they have to be taken to Norwich or, worse, to King's Lynn to be locked up as there are no custodial facilities elsewhere. It requires only one call on the services of police officers to go into Norwich and the whole southern sector of my constituency—an area of 270 square miles, which is equivalent to nearly half of Greater London—is completely without police protection.
In Dickleburgh in my constituency, just last Thursday a store was ram raided in the middle of the night. The person who rented the flat above it alerted the police, because he could hear what was going on, but he was told by the police not to go downstairs and intervene in case he came under threat. However, one reason that caused that person not to intervene was fear that if he were to do so, he would be the one to be had up.
We need a shift in the presumption away from the burglar or law-breaker and towards the householder. There should be a strong presumption against prosecuting any occupant who injures an assailant in some way while resisting the intrusion into his or her home. That is essentially the point that my hon. Friend the Member for North Thanet (Mr. Gale) is making in the Bill.
I have no doubt—my hon. Friend admitted it—that the Bill could be improved. The place to do that is in Committee, and I very much hope that the House will give the Bill a chance to be considered there in more detail. The hon. Members for Broxtowe and for Ealing, North, who have opposed the Bill, have not said what they would do instead. They have both acknowledged that there is a problem and that members of the public out there—
§ Mr. Bacon
I will not give way as other Members wish to speak. Both hon. Members have acknowledged that there is a problem, but they have not suggested what they would do to combat it. I believe that it is for the House of Commons to acknowledge the public concern, which is out there, and respond to that by considering the Bill in detail in Committee. That is what the public want.
§ 2.2 pm
§ Mr. Andrew Stunell (Hazel Grove) (LD)
We have had a lively debate in which some strong and deeply-held views have been expressed. I thank the hon. Member for North Thanet (Mr. Gale) for bringing the matter to the House, because there is no doubt that the difficult and challenging cases that have been referred to have produced a deep unease among the public. That led to the "Today" programme's ill-fated exercise, much to the embarrassment of the hon. Member for Ealing, North (Mr. Pound). That embarrassment takes some generating.
The key issue, which we all understand, is how the principle of reasonable force and proportionality applies in such difficult cases. I thank the hon. Gentleman for highlighting the deep problems in basing particular legislation on one or two hard cases, whether 1174 that means the Tony Martin case or not. The hon. Gentleman properly drew attention to the Kenneth Noye case, which most of us consider outrageous in the opposite sense.
It is not only the question of the hard cases that makes it difficult to legislate. I am thinking of soft cases, such as a drunk old man staggering across my open-plan garden and knocking over a gnome. If I opened my door and he said, "Sorry mate, it's the wrong house," whether I was reasonable or not, I would be entitled under the Bill to go out there and stab, strangle, shoot, maim or kill him, because it covers "any act done". I suppose if a drunk young woman were involved in such an incident, I would be entitled to carry out an indecent assault on her. Perhaps the milkman might wake me with a start one morning, and I mistakenly assumed that it was an intruder.
While the issue is one of great importance. we must recognise that the Bill's framework is seriously and dangerously flawed. I was a bit disappointed in the speech from the right hon. Member for Bromley and Chislehurst (Mr. Forth). It was flexible, as it contradicted absolutely the speeches he has made in numerous Friday debates on private Members' Bills about the need to be careful, proportionate and considered in respect of any proposed legislation. That reminded me that he was a member of the Government when the dangerous dogs legislation was passed.
There is a kernel of real usefulness in clause 3, although not in its present form. There must surely be a complete defence open to any householder or owner against a claim by an intruder who injures himself penetrating someone's property. Perhaps the Minister may like to comment on how that may be dealt with.
I want to move on quickly. We have had a worthwhile debate. Some key issues have been raised. Some fundamental matters affecting the basis of our society are at the root of those issues: the sanctity of our homes and property, the rights of the innocent and of the guilty, too, because we live in a civilised society that recognises both.
Having said all that, I think that the Bill should not be supported by the House. It does not even protect owners because, as one hon. Member pointed out, if one happens to be squatting in the house, one would have all the powers of an owner. It certainly has not got the rest right either. Therefore, with great regret, I say that I believe that it should not receive its Second Reading today.
§ 2.5 pm
§ Mr. John Hayes (South Holland and The Deepings) (Con)
I will be brief because we need to hear from the Minister and to vote before 2.30. I know that the whole House will wish to do so.
My hon. Friend the Member for North Thanet (Mr. Gale) has done the House a great service in bringing the Bill before us and in offering the House a full and articulate explanation of its purposes and motives. He described the Bill as essentially about the home. The home is deeply evocative. It is where we return at the end of the day and at the end of all our days, for it is often where the dying choose to go in their last hours.
1175 The home is the place that Robert Browning considered when abroad: "Oh to be in England now that April's there".
§ Mr. Hayes
Your advice is always welcome, Mr. Deputy Speaker.
My hon. Friend the Member for North Thanet said that he sought to defend the home and he is right to do so, for our home has a sanctity, a special place in our hearts. Indeed, Dr. Johnson saidTo be happy at home is the ultimate result of all ambition".G.K. Chesterton said:It is when we pass our own private gate, and open our own secret door, that we step into the land of the giants.Therefore, it is right and proper that we should defend the home.
I wish to say in the plainest possible terms that the good people of our nation are tired of a criminal justice system that appears, at least, to favour the lawless at the expense of the lawful and that, at the same time, has done untold damage to popular faith in the rule of law. The truth is that many of Tony Martin's neighbours, many of the people of Norfolk and of neighbouring Lincolnshire, many of the people of this country were essentially sympathetic to him, but they dare not express that sympathy because of a fear of a politically correct establishment. Because of that establishment, their passion dare not speak its name. Their passion is a Christian sense of right and wrong and a recognition of the malevolence of evil men and evil deeds.
The Bill seeks to some degree to rebalance the scales in favour of the lawful and to some degree to allow people to do what I suspect every hon. Member present in the Chamber today and those observing our proceedings would do if they were genuinely fearful for their home or their family, and that is to take whatever action they deem to be necessary to defend those special and sacred things.
§ Mr. Hayes
The rule of law depends on proper authority. The hon. Gentleman, who is a great student of these things, knows that. I do not make a case from the Dispatch Box for people taking the law into their own hands as a matter of course, but if the hon. Gentleman were faced with an imminent danger in his own home, he would not first turn to the telephone to dial the police. He would take action, and that is true of 1176 any reasonable person. The Bill takes account of the burden of proof to mitigate the excesses that might result from an over-zealous pursuit of the defence of the innocent under attack.
The Bill, which seeks to amend the law so that people acting in defence of persons or property would, in specified circumstances, be exempted from both criminal and civil liability, strikes an important chord. We wait to hear the Government's response. They will understand that the Bill represents immense popular pressure for change. It is important that we once again re-affirm people's faith in the fairness, decency and justice of our system of law, for if we do not do so, that system will gradually be diluted and damaged by that lack of faith. It relies on the Government listening to what has been said today and to the people of England.
I hope we will not hear a cry about civil liberty—liberty was used as a justification for "the terror" in France and as an excuse for slave traders in England. It is a matter not of civil liberties, but of people taking liberties. There is no freedom worth having if one does not have the freedom from fear, and there is no worse fear than fear of invasion of one's special place, one's own home, and the resultant danger to one's family. I wait to hear the Minister's comments. I hope she will understand the passion with which the Bill has been brought, and the very strong feeling of the many people of all parties that lay behind it.
§ The Parliamentary Under-Secretary of State for the Home Department (Fiona Mactaggart)
We have had an interesting debate on the Bill and we have ranged widely. I thank the hon. Member for North Thanet (Mr. Gale) for introducing the Bill.
We all recognise the legitimate concerns of householders, particularly those who might be isolated or vulnerable and far from help. They might at any time find themselves called upon to defend themselves or their property against intruders. That concern is real, and we take such concerns seriously. As has been said, it is a commonplace that an Englishman's home is his castle, as is a woman's, and we all have a legitimate right and expectation that we should be able to feel safe in our own homes. But there have been recent cases that have led people to ask themselves, "If I come across an intruder and try to defend myself, could I find myself on the wrong side of the law?" We recognise the public concern about that.
That is why, in what the hon. Member for North Thanet described as a pop-idol approach to politics, such a substantial proportion of the respondents to the BBC Radio 4 "Today" programme poll supported the Bill. We, too, have received a sizeable number of representations on the subject, so we know how concerned the public are and we need to address those concerns. However, the Bill is not the answer.
Some of those who have written to the Home Office do not suggest changing the law or allowing householders the freedoms that the Bill would allow them. Rather, they called for more detailed guidance or rules on how they might lawfully react when defending themselves or their property. The example given by my hon. Friend the Member for Broxtowe (Dr. Palmer) of the pub landlord who was worried about whether he 1177 could properly prevent a crime illustrates that. Clearly, some of the public concern stems from the fact that people are uncertain about the state of the law, rather than from the belief that the law is not enough to protect them.
We have issued a booklet entitled "Be Safe, Be Secure", which is a practical guide to crime prevention. It was updated last year and covers all aspects of personal safety at home, including how to deal with intruders. It covers the law of self-defence, including the underlying principles, and it is available from crime reduction officers and neighbourhood watch schemes and on the internet. I understand, of course, that faced with a burglar, the householder is not going to flip to the right page in his booklet. Nevertheless, we need to inform people better about the present state of the law. The present state of the law differs from both the popular perception and from what some hon. Members have implied today. We must bear it in mind that each case is different and that guidelines are needed to set out general principles, and we will see whether we can offer further help.
§ Fiona Mactaggart
The hon. Gentleman may or may not be liable to prosecution, but he would have the defence of self-defence, and I shall come to exactly what that means and implies. The issue is important, and we must be clear about it, because this debate has not clarified it.
The best thing is proper protection against crime. I am glad to see the right hon. Member for Bromley and Chislehurst (Mr. Forth) returning to his place, because he discussed the Conservative party's proposals to employ 40,000 additional police officers through its fantasy island programme on asylum seekers. The Labour party has introduced record numbers of police officers, which has been part of our substantial success in reducing crime—burglary is down 39 per cent. since the Leader of the Opposition was Home Secretary.
§ Mr. Hayes
This is about policing, and no party supports the police more than the Conservative party. I fully endorse the Minister's remarks about the importance of providing the police with adequate resources—which, as my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) said, we intend to do—and giving them special powers. However, that policy cannot be successful unless it is backed up by a criminal justice system that allows the police to do their job, raises their morale and restores public faith in them and the law.
§ Fiona Mactaggart
Precisely. That is one of the reasons for our series of developments to increase public confidence in our criminal justice system, but the first port of call is to stop people becoming victims in the first place. I expect the House to expect me to make clear the Government's commitment and record of success.
1178 Under the law at present, a person is entitled to use reasonable force in self-defence or to protect another person or property. What constitutes reasonable force depends on the circumstances of each case, and it is a matter for the courts to decide. Clearly, the force that it is reasonable to use in any given situation depends on the circumstances, the nature of the threat and what it takes to counter that threat; the reaction must be proportionate.
The hon. Member for North Thanet suggested a pedantic definition of reasonable force. which is not defined in law and is rightly a question for a jury of 12 citizens making up their minds on the basis of the facts of a particular case. The judge will direct the jury, and the circumstances include the situation as the defendant honestly believed it to be.
Lord Justice Woolf said this about the Martin case:it was for the jury, as the representative of the public, to decide the amount of force which it would be reasonable and the amount of force which it would be unreasonable to use in the circumstances in which they found that Mr Martin believed himself to be in.When a defence of self-defence is raised, the prosecution has the burden of satisfying the jury. The jury is entitled to find a defendant guilty only if it is sure that the force used was unreasonable. The hon. Member for South Norfolk (Mr. Bacon), in querying whether prosecution should take place, implied that the reasonableness test was in the hands of the Crown Prosecution Service, but it is not—it is in the hands of the jury.
The law recognises that in the heat of the moment and in a panic, it may be hard for a householder to assess exactly what level of force is necessary and proportionate. The courts have held that if a person does only what he honestly and instinctively thought necessary to prevent a crime, that would be potent evidence that only reasonable defensive action had been taken. However, the law does not permit an act of retaliation. The punishment of criminals is rightly a matter for the courts: it is not for victims, vigilantes or anyone else to take the law into their own hands. They should not seek to punish an offender for a crime or trespass committed against them, their friends or their family. Prevention and defence is one thing; retaliation is quite another. We think that the law as it stands represents a fair balance between the need for householders to defend themselves and their property and the need for society at large to have confidence in the rule of law.
The proposals in the Bill have something of the wild west about them—attractive at first sight, but designed for an era of anarchy, "might is right", and everyone for himself. That is why it is important to stress the work that we have done to ensure that the law is enforced effectively by a more substantial police force.
§ Mr. Hayes
Retaliation implies time. thought, and that someone who has suffered an ill will seek by deliberate intent to inflict an ill on someone else. We are not talking about that, but about someone responding as any citizen would—with immediacy, to defend themselves. Defence and retaliation are two very different things, as the hon. Lady must know. Not 1179 everyone is able to escape such situations—many people live on the front line. I appreciate that she has a noble lineage, but most people do not.
§ Fiona Mactaggart
Those are cheap points, frankly. In fact, I will sign up with those hon. Members who put themselves in the lineage of the retaliators. Only two and a half weeks ago, I was subject to an attempted indecent assault on Clapham common, and it was only because the attempted assailant was the fleeter of foot that he survived without a very substantial thump. If the hon. Gentleman reads the Bill with care, he will see that it would permit retaliation. That is neither necessary nor appropriate in a modern society.
Hon. Members asked whether Mr. Martin would have been protected by the Bill. He probably would, because he needed only to have shown that he believed, whether reasonably or not, that he was acting in self-defence or in the protection of his property, and that the intruder was a trespasser.
Following the Martin case, there has been a cloud of confusion about the current state of the law, and some issues remain properly to be remedied. One of those, which was mentioned by the hon. Member for Hazel Grove (Mr. Stunell) and is addressed in clause 3, is that of civil liability where a householder damages the property of an intruder or kills him. That provision is unnecessary, because we made amendments to the Criminal Justice Act 2003 to ensure that householders and other victims of crime are not subjected to unjustified claims for damages where they have acted reasonably and proportionately in self-defence against a perceived or actual threat. That means that any claim can proceed only in strictly defined circumstances with the express permission of the court, and would not succeed unless the court was satisfied that the householder's actions had been grossly disproportionate.
Those provisions were carefully considered and accepted by Parliament, and they came into force on 20 January. We believe that they represent a sensible and proportionate response to concerns in this area, which the hon. Gentleman mentioned. In addition, the Lord Chancellor has directed the Legal Services Commission to consult on tightening up the rules to ensure that offenders would not be entitled to legal aid to pursue their victims in such circumstances. I hope that the hon. Gentleman will be reassured that that aspect of the Bill is not required.
The proposed Bill would give a person virtual immunity from prosecution for any act done by him if he believed, "whether reasonably or not", that he was acting in self-defence or that he was acting to preserve property, to apprehend a wrongdoer or to prevent a crime, and believed—again, "whether reasonably or not"—that the other person was a trespasser. That is certainly a step too far. We must all be responsible for our actions, and be prepared to answer for those actions if necessary. That is justice. When there was a clearly disproportionate response to an incident, where someone was seriously injured or killed, no responsible person would want to find that the perpetrator did not have to answer for those actions before a jury.
It is for a jury to decide whether someone is acting reasonably or unreasonably and whether their actions are proportionate and justifiable or not. To allow 1180 someone to use any means to defend themselves could include, for example, being able to use weapons to kill an intruder. That would clearly be a disproportionate and unreasonable response to an unarmed burglar. It would grant someone a licence to kill with impunity. We do not hang burglars in this day and age, and we certainly would not be happy to suggest that prospective burglars could or should be shot with impunity. They should be pursued with the full force of the law.
I know that in some cases people feel that the law is not protecting them, and that is what has led to this proposal. We need to make sure that the law is operating as it should, but putting householders beyond its reach would not help the law to protect them. Rather, it would create an acceptance of lawlessness and a spiral of violence and retaliation that would make the situation worse. It would create a situation in which people felt that they had to go armed in order to protect themselves. That cannot be what we want to achieve.
We would rather pursue an approach that depends on more robust policing and more effective support for the victims of crime. The sense that there is nothing that victims can do is in many ways disabling, and it is one of the things that has led to the introduction of the Bill. As the hon. Member for North Thanet suggested, we need to address the underlying perception—which we do not believe to be well founded—that the criminal justice system has shifted so that the criminal, rather than the real victim, is seen as the victim.
That is why we have taken so many substantial steps to support victims. A conference for victims was held for the first time this week, and we have introduced legislation that puts victims at the heart of the criminal justice system, including the Criminal Justice Act 2003, the Anti-social Behaviour Act 2003, the Sexual Offences Act 2003 and the new Domestic Violence, Crime and Victims Bill. They are all designed to protect victims more effectively.
We also need to remember too that not everyone who enters private property does so with criminal intent. This law could allow a householder to take action against small boys who are looking for a lost football, against an unsuspecting and unrecognised deliveryman, or against anyone rash enough to set foot on their property, even for a completely legitimate purpose. Members of the House would need to take care when they were next on the campaign trail. The hon. Member for Broxtowe suggested that all of us who spend time in our constituents' gardens could face violent action from a constituent. I do not believe that the constituents of Slough are of the type to which he referred, but we could face that risk if they thought that we were trespassing.
This Bill would give them complete impunity and thus represent a step backwards for democracy. It goes too far. The law already enables people to act reasonably in self-defence, or in defence of their property. However, such a provision—
§ It being half-past Two o'clock, the debate stood adjourned.
§ Debate to be resumed on Friday 14 May.