HC Deb 04 March 2003 vol 400 cc206-13WH

11 am

Mr. Henry Bellingham (North-West Norfolk)

I shall refer initially to some of the background to the Tony Martin case. As the Minister will be aware, it is a sad and tragic case. It is tragic that someone died in the break-in to Tony Martin's farmhouse, Bleak house. It is sad that a Norfolk farmer who is a man of honour, integrity and decency ended up going to prison, having had absolutely no previous convictions or examples of bad character in the past.

I want to consider the laws of burglary, in particular those governing self- defence. Before doing so, however, I want to refer to Tony Martin's application for parole. I note that the original Minister who was to deal with the matter cannot be here today because he is ill, but I am glad that the Minister for Policing, Crime Reduction and Community Safety can respond to the debate. I spoke to his office about an hour and a half ago and informed his staff of the broad outline of what I am about to say, so I hope that he has been briefed on that. I am grateful to him for stepping in at the last moment.

The Minister will be aware that Tony Martin was convicted originally of murdering Fred Barras and was sentenced to life imprisonment. However, the conviction for murder was quashed on appeal and a conviction for manslaughter was substituted. The sentence was commuted to five years in prison. The first available date for parole was about five weeks ago. Everyone was led to believe that Tony Martin would be given parole and that that would not be a problem. As we know, parole was refused. That was a staggering decision. Tony Martin will challenge the Parole Board's decision through to judicial review, so obviously the matter is sub judice.

Will the Minister comment on the award of parole? I am talking in general terms; I note that the Clerk is looking a little apprehensive. I will not say anything that is sub judice. It is most important for the Minister to consider the matter from a general perspective. The two key criteria that matter most are the behaviour of the prisoner and the likelihood of his reoffending. I have a meeting lined up with the chairman of the Norfolk probation service in about two weeks. It would seem from press reports—they have not been denied—that the probation officer in question took a subjective view. For example, he is quoted as saying that Tony Martin showed no remorse. He is also quoted as having said that Tony Martin lived in the 19th century and believed that an Englishman's home was his castle. There is nothing dramatic in that. As for remorse—there has been much discussion about that in the local media—surely that is a private matter. I should not have thought that it was for a probation officer to take a subjective view. It is up to him to be dispassionate and professional and to make a judgment on the facts.

I draw attention to the contrasting case of Brendan Fearon, which is in the public domain. He was one of the burglars who broke into Tony Martin's home. He had a string of convictions as long as my arm and was a serial offender. He was convicted of burglary and was sentenced to three years' imprisonment. After 18 months, he was granted parole. Many people took the view, and said, that it was wrong for him to be granted parole in such circumstances, because if anyone was likely to reoffend it would almost certainly be Brendan Fearon. A few weeks ago he did reoffend and he is now back in prison serving a sentence for supplying heroin, yet he is an example of a person whom the probation service said should be granted parole. It is staggering that Brendan Fearon was granted parole but my constituent, Tony Martin, was not.

Will the Minister examine the role of the Prison Service? It submits reports to the Home Secretary but it also puts together a package of papers for the Minister to examine.

Mr. Deputy Speaker

Order. I am listening extremely carefully to the hon. Gentleman. The subject of the debate is the operation of the law relating to property and how the case of Mr. Tony Martin affects that. The hon. Gentleman seems to be talking about the case of Mr. Tony Martin rather than the law relating to property. I do not think that he has yet stepped out of order, but he is not strictly addressing the terms of the debate, as I understand it.

Mr. Bellingham

I am grateful to you, Mr. Deputy Speaker, for that slight rap over the knuckles. I shall come on to the law relating to burglary in a moment, but I am sure that you will agree that if one is making a strong case for reforming that law and trying to put something in context, it is important to use individual cases because they bring home to people how deficient the law might be.

Mrs. Gillian Shephard (South-West Norfolk)

I congratulate my hon. Friend on securing the debate. As he knows, Mr. Martin's home community of Emneth is in my constituency although Mr. Martin is my hon. Friend's constituent. As hon. Members will know, my hon. Friend was sadly absent from the House between 1997 and 2001, which was when the incident occurred, and during that period I took on responsibility for Mr. Martin and his community.

One of the most distressing aspects of the whole affair is a general aspect that affects not only Emneth, judging from my postbag, and no doubt that of my hon. Friend, and that is the loss of people's confidence in the criminal justice system, especially in relation to the invasion of privacy by burglars. That is enormously important, and if the law regarding people's security and safety in their homes is brought into disrepute by what people felt four years ago to be unfair treatment of an individual, it is right for the law to be examined. That is the background of my hon. Friend's case.

Mr. Deputy Speaker

That was rather a long, but very helpful, intervention. It certainly described the scope of the debate, as I understand it.

Mr. Bellingham

I am extremely grateful to my right hon. Friend the Member for South-West Norfolk (Mrs. Shephard) who summed up succinctly the feelings of many of our constituents. She was right to point out that Tony Martin, whose house is the last house in my constituency, is a constituent of North-West Norfolk, but the community of which he is part, Emneth, is in my right hon. Friend's constituency.

My right hon. Friend's point brings me neatly to the law of burglary. I shall address a point about the Parole Board in a moment, but you are right, Mr. Deputy Speaker, because we are nine minutes into the debate and it is time that we examined burglary and the law relating to it in more detail. I see that the Clerk is cheering up a bit, which is obviously good.

Rural police forces up and down the country are overstretched. Burglars know that because they are targeting, more and more, homes in the more rural and sparsely populated parts of my constituency and the constituencies of my right hon. Friend the Member for South-West Norfolk and my hon. Friend the Member for Mid-Norfolk (Mr. Simpson).

People in rural areas feel particularly vulnerable, which is not helped by the recent confusing comments of Lord Chief Justice Woolf and the Lord Chancellor. They appear to be completely out of touch. Burglary is not a victimless crime. It often involves the threat or the fact of physical attack, and many of its victims are permanently traumatised. When Lord Chief Justice Woolf and the Lord Chancellor suggest that first-time burglars should not be given custodial sentences they send out quite the wrong signal.

People in rural areas feel especially vulnerable, and many of them think that they should be able to use reasonable force to protect themselves. However, recent cases have resulted in total confusion. The Tony Martin case is well documented and everyone knows the facts. He shot a burglar who broke into his house, was charged and convicted. Another man was recently convicted for repeatedly stabbing a burglar who had broken into the flat where he believed that his children were sleeping. However, when another householder stabbed to death one intruder and seriously wounded another, the Crown Prosecution Service found that the force used was reasonable and did not prosecute. Clearly the CPS cannot decide where the boundary between reasonable and unreasonable force lies and what the law is. How can it be right to prosecute people when the law is confused and contradictory?

If lawyers, safe in their offices, cannot work out what is right, how can a householder be expected to weigh up the pros and cons in the middle of a violent struggle in the dark? Is it reasonable to expect a householder, during a few fearful seconds at the top of the stairs, when he is being menaced and perhaps threatened with a broken bottle or a knife, to guess what the law would say when lawyers do not know?

I do not want new over-prescriptive laws, and I certainly do not want a firearms free-for-all. We do not want here the situation found in parts of the United States where if one so much as enters someone's garden one is likely to be shot at. In a case in Florida, a Japanese tourist knocked on someone's door and was shot through the letterbox. That is the gun culture gone mad and we do not want that. However, I think—the Minister might comment on this—that we need a much more sympathetic approach by the police and the CPS towards householders who defend themselves. All too often, those householders, who have perhaps had to react in a split second, are made to feel the No. I criminal. There should be a presumption in favour of their innocence, rather than the other way round, which appears to be the case at present.

I am not suggesting that the Government should immediately change the law, but we should have a report from the Law Commission, which should be tasked with examining whether we need a new law where the relevant test is not the reasonable man test but a new, subjective test of what the householder believes to be appropriate at the time. At the moment, under the reasonable man test, many months after an incident, the CPS and lawyers will be sitting in their comfy chairs deciding what the reasonable man would do in those circumstances. How can they put themselves into the shoes of the householder who had to take a decision in a split second? If we bring in a new, subjective test, that would allow for the fact that every case is different and every set of circumstances quite unique. Householders would not then be prosecuted unless they were launching what I would describe as revenge attacks on burglars. They would not be prosecuted for any action that they took in the heat of the circumstances, on the spur of the moment. They might be prosecuted if, for example, they apprehended the burglar, held them at bay, and then launched a revenge attack on them. That would obviously be very different.

I urge the Minister to consider my suggestion. I do not say that the law should be changed immediately, but there is a strong tide of opinion in Norfolk and in many other rural areas that the law is completely confused. The Government should accept that and try to do something about it. My suggestion that the Law Commission should examine the issue and produce a report makes the most sense.

I also want to make a point about burglars and other intruders who break into properties and end up getting injured or, in this case, shot. I strongly believe that those burglars—those criminals—who have often committed wicked crimes should not have any civil rights with regard to any incident that takes place in that property. There is a great deal of support in my constituency and that of my right hon. Friend for the suggestion that when burglars break into a property, and it is manifestly obvious to them that they are committing a crime, they should leave their civil rights outside that building or home. I am thinking especially of the case of Brendon Fearon who is trying to sue Tony Martin for, we are told, £150,000, on the basis that he suffered injury and other problems when he broke into Tony Martin's house.

It would make much more sense if a rule were introduced whereby all civil rights are extinguished the moment that a crime is committed. It offends many people when it becomes apparent that burglars and other criminals can profit from a crime. The Minister must respond to the tide of public opinion and revulsion at some of the incidents that have taken place throughout the country. The Government must focus on these two points. I do not advocate American-style laws under which people can shoot whom they want. However, it is high time that householders know exactly where they stand. The Government must seize my point about people who commit crimes being able to profit from them.

The Parole Board apparently ignored its own guidelines when it made its decision in the Tony Martin case. Those guidelines demand that it considers any psychiatric reports in any review. I understand that it did not study the report by forensic psychiatrist Dr Philip Joseph, who made it clear that he had examined Tony Martin and concluded that he was not prone to losing his self-control and was no more volatile than the average person. He recommended that Tony Martin should receive parole, but it appears that that crucial psychiatrist's report was not included in the key papers that the Prison Service presented to the Parole Board. The Minister must consider that.

I am unclear whether the Parole Board is an independent body over which Ministers have no control. Will the Minister say whether that is the case, and will he examine any possible discrepancies in the Parole Board's decision-making process? Will he ask questions and discover why a key report was not presented? Will he ask the Prison Service for an explanation, and will he speak to the relevant prison governor? Will the Minister obtain a copy of the probation officer's report? If I write to him and ask for a copy of the probation officer's report that went to the Parole Board, will he supply it? Could I write to the chairman of the Norfolk probation service and ask for a copy, or will those reports always be confidential? In a case where there has been substantial publicity about what was in that probation officer's report—information that has not been denied—would it make sense for such a report to be published? Will the Minister explain to the House what he can and cannot do in such a case?

I am grateful to you, Mr. Deputy Speaker, for giving me that leeway. I hope that the Minister will be able to answer my questions on the way that Tony Martin's application for parole was handled. Would he also consider setting up a Law Commission inquiry into how the burglary law works and what householders can and cannot do? If he could do that, many of us would be extremely grateful.

11.20 am
The Minister for Policing, Crime Reduction and Community Safety(Mr. John Denham)

I congratulate the hon. Member for North-West Norfolk (Mr. Bellingham)) on securing the debate. As he appreciates, I have stepped in at the last moment to respond to it and I hope to address several of the issues that he raised. He introduced the debate in a measured way. I am sure that he would join me in regretting the fact that some of the coverage of the case has focused on individual people with some role in the decision-making process, drawing attention to where they live and their identity in a way that is not fair to people working in the service of the public.

With regard to the Parole Board's decision, we cannot comment on the circumstances of a particular case. I shall, however, set out the process for considering whether a prisoner serving a sentence of four years and over should be granted early release on parole licence. It is important to say that that is the approach that we expect the Parole Board, as an independent body, to follow.

Prisoners serving a sentence of four years or more are entitled to be considered for early release on parole at the halfway point of their sentence. It is for the Parole Board to determine whether to award early release on parole. When considering whether or not to release, the board is obliged to take into account the directions set down by the Secretary of State, pursuant to Section 32(6) of the Criminal Justice Act 1991.

Those directions clearly state that the Parole Board shall consider primarily the risk to the public of a further offence being committed at a time when the prisoner would otherwise be in prison and whether any such risk is acceptable. This risk is then balanced against the benefit, both to the public and to the offender, of early release back into the community under a degree of supervision. However, I must stress that when carrying out that balancing exercise, the board's overriding concern must be the protection of the public. That is all the more so when the offender concerned has committed either a violent or sexual offence.

The Parole Board will also want to satisfy itself that the prisoner concerned is likely to comply with the conditions of their licence. It will want to be satisfied that there is a sound release plan, which will assist the offender's rehabilitation and which has adequate safeguards that will enable the probation service safely to manage risk while the prisoner is in the community. In short, a significant part of the consideration that the Parole Board is required to undertake when considering an application for release on parole focuses on the risk to the public of further offending during the parole period. In general, if someone presented no risk of reoffending, it would follow that the Parole Board would be bound to recommend that person's release.

The hon. Gentleman asked about the availability of reports to the Parole Board. I shall look into that matter and write to him about it. From the briefing that I have, I have no reason to believe that all available reports and material were not considered by the Parole Board. The current position is that Mr. Martin will be released automatically at the two-thirds point of his sentence, and supervised on licence until the three-quarter point.

On the question of the law on self-defence, it is well-established in law—I am not talking about an individual case—that a person may use "reasonable force" in self-defence or in the defence of his or her family or property. The key elements of what amounts to reasonable force in self-defence may be summarised as necessity and proportionality. The force that it is reasonable to use in any given situation will depend on the nature of the threat that a person is facing—for example, the level of force that he can use to defend his life is greater than that to defend his property.

What constitutes reasonable force will depend upon the circumstances of each case and is a matter solely for the courts to decide. That does not mean that if a person inflicts injury on a criminal in the course of defending himself or his property he will necessarily face criminal charges. However, if a complaint is made that excessive force has been used, the police are duty bound to investigate. If charges are brought, the court takes account of what was reasonable in the circumstances for someone in the defendant's shoes. For example, some allowances are made for panic in the heat of the moment or the fact that the defendant is small and frail and the criminal is large and threatening.

Some sort of codification of what level of force is permissible is likely to be of only academic interest to people who suddenly find themselves under attack. Such a code is not likely to be the sort of thing one carries round in one's mind in case it is needed. I am not sure whether it would help to resolve the situation. When a case is brought to court, it is best left to the jury to decide, in the light of the circumstances, whether the action taken in self-defence was necessary and proportionate. The law allows a jury to take into account the fact that people defending themselves may not be able to judge to a nicety what level of force to use. Generally, juries are able to come to sensible conclusions that are on the side of the law-abiding public and the victim.

Although it is quite reasonable to ask for a proper approach by the police and the prosecuting authorities, many of the judgments in cases that are brought to court must be put in the hands of juries, which must play the role that they have traditionally played. We need to keep a careful balance between upholding an individual's right to self-defence and maintaining the general rule that people should not take the law into their own hands. It follows that changes to the existing law should not be made on the hoof as a response to a particular case. At this stage, we are not convinced that a change to the law on self-defence is required.

Mrs. Shephard

I congratulate the Minister on his grasp of the matter. When a case has the kind of reception that this case had, it brings the law and people's respect for it into some doubt. The reaction to a case is something that Ministers should take into account when they are reviewing possible changes in the law.

Mr. Denham

Both the points that the right hon. Lady makes are correct. High-profile cases raise public concerns about the way in which the system operates and Ministers are duty bound to reflect on the issues that are raised, but they are also duty bound not to commit themselves to rewriting an entire piece of legislation on the back of an individual case, if, on reflection, the principles seem to be sound.

Mr. Keith Simpson (Mid-Norfolk)

This is not in the same category, but it relates to the point made by my hon. Friend the Member for North-West Norfolk (Mr. Bellingham) and my right hon. Friend the Member for South-West Norfolk (Mrs. Shephard). The impression among the public is that the balance has shifted towards the criminal, rather than the victim. I was told recently by the head of the Norfolk Archaeological Trust that a person had broken into an archaeological site, climbed over a fence, fallen into a ditch and injured themselves and was now seeking legal advice about suing the trust because it had not put up a notice saying that there was a ditch. We can smile about that kind of thing, but it contributes to many people's perception of the balance. I know that the Minister cannot necessarily take the place of a judge, but he must have a view on the matter.

Mr. Denham

There is a slight difference between the issue of the law on the reasonable use of self-defence, which has been in place for some time, and the interpretation of the Occupiers' Liability Act 1984, which involves considering what was in the mind of the Government who introduced it. I suspect that the 1984 Act was much more to do with children going into their neighbour's garden to retrieve a ball and falling into a dangerous pond, than it was to do with climbing over fences belonging to the Norfolk Archaeological Trust.

I can add little further today, other than to say that there was an interesting exchange—not in the House, but on "Any Questions" last Friday night—between my right hon. Friend the Home Secretary and the right hon. Member for West Dorset (Mr. Letwin), which appeared to point to a consensus that some revision of the 1984 Act might be in order. I understand that that was due to be discussed in the Committee that is considering the Criminal Justice Bill this morning. I cannot commit the Government on this matter, but there does seem to be something in the ether surrounding the issue, so perhaps we should watch this space.

11.29 am

Sitting suspended until Two o'clock.