Crime: Home Protection
(12 years, 7 months ago)
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Lord Blencathra
To call attention to the protection of home and person from intrusion or assault; and to move for papers.
Lord Blencathra
My Lords, in introducing this debate I am conscious that there are many deeply held views on these subjects and a great deal of misinformation in the media but nevertheless I believe that the balance of our laws is wrong because the law is, in my opinion, built on a nonsense. It is built on the concept that a person awoken from sleep at 3 o’clock in the morning and fearing for his or her life will be able to exercise a judgment on using reasonable force in a moment of sheer panic, when lawyers in a cosy courtroom many months later have difficulty in ascertaining, with all the time in the world, what is “reasonable”. To expect a householder at that moment to be awake and lucid enough and in complete command of his or her faculties, in my opinion, is wrong and unjust.
The CPS guidelines state:
“Anyone can use reasonable force to protect themselves or others, or to carry out an arrest or to prevent crime. You are not expected to make fine judgments over the level of force you use in the heat of the moment”.
This year the CPS in Manchester, in the north-west, decided not to prosecute three householders who killed burglars while struggling with them and fighting to protect their homes and family. That was the right decision, but it was taken a month after the householders had been arrested. People who thought that they were going to be murdered in their own homes and fought back should not then be put in fear of being prosecuted, and left hanging for such a long time.
We should not have to decide whether the force was reasonable, but assume as a starting point, in my judgment, that any force used by a householder against an intruder is legal and appropriate. The message must go out to the police and public that householders have an absolute right to protect themselves, their family and home from intruders and that intruders leave all their rights behind the moment they climb through the window.
If the concept of “reasonable” cannot be removed, we must have a completely different understanding of what “reasonable” is at three o'clock in the morning. Envisage the situation where a person, believing that he or she is safe and secure at home, wakes up to find an intruder in the room. It must be one of the most terrifying things imaginable. I suggest that their reactions in all cases will be instinctive. It will be Pavlovian. It will not be reasoned. It may be to lie quivering in terror, to scream the place down or to retaliate and attack. I suggest that one of those reactions will come automatically; not as a process of reasoned thought. The innocent householder who instinctively lashes out at the intruder will be judged on the amount of force he used and whether it was reasonable in the circumstances. That puts an unfair burden on the innocent householder.
A few weeks ago, 140 service men and women received awards, among them 16 Military Crosses. When you read the citations you see that we still produce young men and women of mind-boggling selflessness and courage, but in all cases, what they did was illogical, irrational, and clearly not what a reasonable person would do if they thought about it. They did not think about it, they just reacted instantly, spontaneously, to save the lives of their comrades. That sheer selfless courage has been rightly recognised. Nor were they doing what they were trained to do. The infantry manual does not state that when you come under heavy machine-gun fire, you single-handedly charge the enemy, firing your weapon, lobbing every hand grenade you can get your hand on and take out the enemy position while receiving wounds in your legs and gut, but that is what those lads who won the Military Cross a few weeks ago did—instinctively, when surprised and taken by shock by the enemy.
I therefore suggest that a householder similarly suddenly confronted by a potentially life-threatening situation should be permitted to use all the force he is capable of to deal with that situation and should not be at risk of prosecution afterwards. I would also like assurances from my noble friend that a householder will have a complete defence even if he could have locked himself in a safe part of the building. The fact that one could theoretically retreat to a safe room must not be used as an excuse by the CPS to prosecute the householder who decides to stand and fight. I appeal to my noble friend to demand of the CPS that it comes to decisions in these matters much more speedily. Where there is a clear-cut case of genuine defence in one's home, the householder must be cleared with all possible speed. It is unjust to leave them waiting.
The most fraught area is when to stop defending oneself and one's property, especially if one chases the intruders from the home. I say “property” because the defence of oneself and one's home should extend to the defence of one's property in one's home. On when to stop defending oneself, the CPS guidelines state:
“The situation is different as you are no longer acting in self-defence and so the same degree of force may not be reasonable”.
The trouble is that the CPS often does not follow its own guidelines. The scandalous treatment last year of Omari Roberts is a case in point. He was a young apprentice builder with a perfectly clean record who came to his mother's house for lunch and found it being ransacked by two teenage thugs. In the struggle which followed, one burglar was stabbed and died. Omari was charged with murder based on a pack of lies told by the other burglar, who survived, who claimed that Omari chased him down the street. However, on the day that the case came to trial, the CPS dropped the charges as its key witness had by now forgotten his original pack of lies and had invented a completely new set. The CPS dropped the case not because it realised that it was acting entirely contrary to its own guidelines, not because it realised that Omari acted lawfully, but because it thought that it just might not win and that a jury would be 12 times more sensible than it was.
The surviving burglar’s original statement said that Omari chased him down the street, and this is the bit that the CPS used to bring a charge of murder against Omari. The CPS said that the time spent chasing the boy could have been used to summon the police. But hang on. The boy he allegedly chased and attacked lived. The boy Omari killed never left the house. So how can the chasing of the second boy result in a murder charge?
The biggest problem with this case is that the CPS’s entire argument revolved round a teenage burglar’s testimony, a teenage burglar with an ASBO and a number of previous convictions. Why is a burglar’s testimony given more consideration by the CPS than the victim’s statement? So although the guidelines are okay as they stand, it is sometimes, and often, the wrong-headed, misguided prosecution by the CPS of people like Omari which does tremendous damage not just to this innocent victim, but it sends a signal that the law is on the side of the thug and the burglar. That is where the damage rests.
This idea that there is a fine cut-off point when there is a threat and force is permissible, and then the second the threat is over force is not permissible, is also wrong. For some householders who instinctively fight back that adrenaline rush may last 30 seconds, for some it may last two minutes, for others it may last 20 minutes. It will be different for everybody and reason just does not come into it. If a householder continues his retaliation on the intruder even after the threat is theoretically over, he should not be prosecuted provided it was all part of that same psyched-up adrenaline rush that gave him the courage to fight back in the first place. I suggest that that is entirely different from a scenario where the householder has calmed down and half an hour later or the next day he decides to get revenge and go and beat up the burglar. That is not acceptable.
Let me quote one very sensitive example. Six years ago a highly trained, armed police officer was told that a person was wired up with a bomb and that innocent civilians were at risk and he could use lethal force. Leaving aside the incompetence of the command and control procedures of that operation, I have every sympathy for the officer who had to execute that order. Time was critical. He had to act fast. If the bomb was detonated, dozens would die. That officer psyched himself up to neutralise the problem and when he pounced on Mr de Menezes, he shot him in the head and again and again and again and again and again and again. Rightly he was not charged with any offence or disciplined because there was recognition that at times of severe stress a person taking action, even a highly trained officer, will go on taking that action long after the threat may be over because there is no rational or reasoned cut-off point when one is acting under extreme stress. I believe that the law must recognise that householders should not be expected to make rational judgments about when they should stop defending themselves by attacking the intruder when they are caught up in what is an entirely irrational situation in the first place.
I turn now to the protection of one’s home from theft. The time is long overdue when this should be made a criminal offence enforced by vigorous police action. Why is this most serious of thefts still a civil matter? If I steal the smallest item from a shop, it is a crime. I might not be prosecuted and I may get a slap on the wrist but it is a crime. If I think the restaurant meal was appalling, why should my dispute with the chef not just be a civil matter? It is not; it is a crime if I make off without paying for it. But if I come home from holiday and find that my house has been stolen from me, the criminal law does not care. The police do not want to know and I will have to spend months in the civil court system trying to get my property back. The people illegally occupying my house, of course, will get legal aid because they have no assets or property except my house. I will not get legal aid since I own a home which I cannot occupy and it will be a wrecked mess when I do get it back. The most valuable physical possession one has, apart from one’s health, is one’s home and it must be a criminal offence for anyone to misappropriate it.
It should apply to council housing and business property, too. If a council is failing to rent property quickly enough, the solution is for the Government to penalise the council. Occupation by squatters inevitably delays the day when that home is available for someone to legitimately rent. Of course, the police must not go around looking for people to evict. They should act only on a complaint from a property owner or tenant. If a person goes to the police and says that their property has been taken over, and produces prima facie evidence of their ownership—their name on the electoral roll or on a council tax demand—the police must be under an obligation to take recovery action immediately. That means evicting and arresting the squatters that day, with no right of appeal or judicial review at that time to delay the process.
If the Government go down this route—I hope that they do—and make this a criminal offence, I hope that the message will be clearly understood by chief constables that the main remedy Parliament wants is the immediate return of property to the lawful owner. In order to safeguard against suggestions that an unscrupulous landlord would lie to the police to get them to evict a tenant he did not like, we could build in a safeguard procedure: for example, that everyone calling for police assistance should sign a declaration stating that they are the legal owner or occupier. The penalty for a wrongful claim could be a £10,000 fine and two years’ imprisonment; or, for a landlord trying to get rid of a tenant, a £50,000 fine and five years’ imprisonment. That would stop any abuse of the system and reassure the civil liberties lobby.
The law should apply also to all commercial property, where legitimate owners at the moment are losing millions to illegal squatting. However, if noble Lords think that this is a bridge too far today, let us change the law as soon as possible on domestic premises being squatted and review the situation after a year. If we find that there is no abuse of the system, I suggest that the Government should push on with extending the criminal law to commercial property. The principle is the same: illegal occupiers of commercial property are no more moral than those who steal domestic property.
In both these situations, I have described how we need to change the law not just to correct injustices but to send a clear signal that it is instantly on the side of the law-abiding, the innocent, the decent, the righteous and those who fight back. I mean instantly—not months later when the CPS drops the charges; not years later when the Court of Appeal reduces the sentence; and not months later when a civil court might give you your property back.
In this, as in many things, perception is everything. There are lawyers who will say, understandably, that the law of self-defence is reasonable when applied by an intelligent court; but that is not the perception in the minds of innocent householders. That perception can be radically changed by small changes in the law, and I look forward to my noble friend telling me that he will bring in some of those changes instantly, and others in due course.
Lord Thomas of Gresford
My Lords, the House will be most grateful to the noble Lord, Lord Blencathra, for introducing this important subject. It was considered by the Law Commission in 2005, which stated in paragraph 4.19 of its report, headed “The threatened householder”, that,
“there is a strongly held view among many members of the public that the law is wrongly balanced as between householders and intruders. We think that much of that public anxiety is based on a misunderstanding of the present state of the law, contributed to by incomplete understanding of certain notorious cases”.
That is where we start in a consideration of this important question.
What is the law? I went back to the common law as enunciated by Blackstone in his Commentaries on the Laws of England in 1761. On self-defence, he stated:
“The defence of one’s self, or the mutual and reciprocal defence of such as stand in the relations of husband and wife, parent and child, master and servant. In these cases, if the party himself, or any of these his relations, be forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace which happens, is chargeable upon him only who began the affray. For the law, in this case, respects the passions of the human mind; and, when external violence is offered to a man himself, or those to whom he bears a near connection, makes it lawful in him to do himself that immediate justice, to which he is prompted by nature, and which no prudential motives are strong enough to restrain. It considers that the future process of law is by no means an adequate remedy for injuries accompanied with force”—
that is the future process, the point made by the noble Lord a moment ago—
“since it is impossible to say to what wanton lengths of rapine or cruelty outrages of this sort might be carried unless it were permitted a man immediately to oppose one violence with another. Self-defence therefore as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society. In the English law particularly it is held an excuse for breaches of the peace, nay, even for homicide itself: but care must be taken that the resistance does not exceed the bounds of mere defence and prevention; for then the defender would himself become an aggressor”.
That is almost the speech that the noble Lord has made this morning. It also happens to be the law of this country, dating back 250 years.
Of course, the matter has not been left there. It was considered again in 1879 under the chairmanship of Lord Blackburn. I will not weary your Lordships with a quote from that but it was to the same effect. Most recently, in the Court of Appeal in October last year, Lord Justice Hughes set out the very long established law, which has two or sometimes three stages into any inquiry into self-defence. First:
“If there is a dispute about what happened to cause the defendant to use the violence that he did, and there usually is such a dispute, then the jury must decide it, attending of course to the onus and standard of proof”.
Secondly:
“If the defendant claims that he thought that something was happening which the jury may find was not happening, then the second question which arises is what did the defendant genuinely believe was happening to cause him to use the violence that he did? That question does not arise in every case”.
In other words, the court will look at the honest belief of the defendant as to what he thought was happening. Thirdly:
“Once it has thus been decided on what factual basis the defendant's actions are to be judged, either because they are the things that actually happened and he knew them or because he genuinely believed in them even if they did not occur, then the remaining and critical question for the jury is: was his response reasonable, or proportionate?”.
That is a statement of the law made very recently.
Let me give your Lordships some examples from my own experience to indicate how the law has operated. I can go back to the 1970s, to a case where the defendant was a former military man in his 40s, who had retired from the Army—he was a warrant officer—to look after his sick father. In those days people wore their hair long—perhaps some of your Lordships wore your hair long in those days—but he of course had a short back and sides and he became a butt of the community. One day when he was looking after his father in the bedroom of a council house, a youth came up the path and threw a brick through the fanlight above the door, whereupon the defendant took a .22 rifle and from the bedroom window shot him through the head and killed him. The defence was defence of property—he was in no personal danger in the bedroom with his sick father. The jury considered all the circumstances, as the jury is bound to do, and acquitted him. He was not guilty of murder, he was not guilty of manslaughter; he walked free.
Another case I recall from the Midlands was when a person, again in his home, heard a noise outside and discovered that some drunken passing youths had turned his car upside down on the drive. He went outside and remonstrated with them. They started to shout and hurl abuse at him. He went back inside and picked up a knife. When he came out, the youths were picking fence staves up in order to attack him. They attacked him and he stabbed one of them with the knife. The jury heard all the circumstances. He was defending himself and his home. Again, the jury acquitted him. All together he was found not guilty of murder.
These cases are from my own experience but they are happening all the time. A third, more recent, case is from Trinidad. A police officer, surrounded by a crowd of youths at a music festival, felt that he was being attacked. It was his defence that one of the people attacking him had produced a knife. He produced his revolver and shot two people, one of whom he killed. In that case, a trained officer used a gun against someone whom he believed to have a knife in those circumstances. Unhappily, his counsel in Trinidad decided not to run the defence of provocation but to rely entirely on self-defence. The jury convicted the police officer of murder. In the Privy Council, it was pointed out that certainly the crowd around him and shouting at him were provoking. The case went back to Trinidad and, on a retrial, he was convicted of manslaughter on the grounds of provocation.
My point is that the facts can be completely different and the surrounding circumstances are completely different in every case. If, for example, a burglar is in the bedroom and my wife is on her own, and she uses excessive force by, let us say, shooting—not that she has a revolver, I have to say—and kills the person concerned, that is a very different situation than if I were there and in a position to deal with someone of a reasonable size in order to defend myself and my property in that way. The circumstances cannot be categorised in any particular way.
In 2005, there was an attempt to introduce a Bill—the Criminal Law (Amendment) (Household Protection) Bill—to amend the law. It was introduced by Mr Patrick Mercer, supported by Mr David Davis and various others, in the House of Commons. It wished to replace the term “reasonable force”, whether the jury were considering the force used in defence was reasonable, with the term “grossly disproportionate”. The Bill did not get very far and one only has to stop and think: a jury is considering a whole series of facts around a killing; it considers that the defendant has acted unreasonably, but has he acted “grossly disproportionately”? You can imagine a debate taking place in a jury room to decide on the difference between being unreasonable, acting beyond reason, and acting with gross disproportionality. That sort of debate should not be left to juries, which approach these matters in a completely common-sense way, having regard to all the facts and circumstances put before them. While I sympathise to a certain extent with those concerned with some cases that come before the courts which seem to be grossly unfair, the law covers the situation and has done so since 1761 and before that time.
What concerns me is the concept that the decision as to what was reasonable should be taken by the police—that a householder should never be arrested and questioned if he has killed someone who has been an intruder. That cannot be right. The death of a person is extremely important and, whatever he may or may not have done, it is right that he should be arrested and that he should be questioned. If he has genuinely been acting in fear and in self-defence, undoubtedly he will give his view and his account of what happened at that point, a circumstance which the jury will no doubt take into account.
A person who has killed somebody, whatever the circumstances, is liable to arrest and questioning and, if necessary, detention until the whole matter can be sorted out. It is right that the decision should not be taken by the police and not even by the Director of Public Prosecutions, to whom the file is sent. It is for 12 people drawn from all parts of the community who should have put before them on the evidence all the circumstances and who should decide, using their common sense, which they undoubtedly have, whether that person was acting unreasonably when he killed the deceased.
The problem is that Parliament has sometimes, and certainly over the past 13 years, failed to recognise the absolute value of having people from the community decide issues like this and has tried in various ways to put boundaries around the thinking of a jury, which is entirely inappropriate. Self-defence, that firm principle embedded in our common law going back centuries, is a matter for the jury to determine. Do not let us ever get away from that.
Lord Selsdon
My Lords, one of the great privileges of being in your Lordships’ House is the free advice you get from time to time. I am most grateful to my noble friends Lord Blencathra and—I can now call him my noble friend—Lord Thomas of Gresford, because it makes me feel as if I am some form of pacifist. I suffer from a temper which very seldom rises but, if anyone did come into my house and threaten me, being in the agricultural sector I naturally have a pickaxe handle and a very large knife for pruning the vines; I can throw it into a dart board and get a double top. I also did a bit of unarmed combat; I spent time sharpening the back of my hand so that I could slash it across someone’s throat.
My intervention today, however, is entirely one of pacifism. I am going to concentrate on intrusion—“an Englishman’s home is his castle”, or matters of that sort. I will refer to a Private Member’s Bill that I got through the House some years ago. To begin with, I would like to take as my text the words of Patricia Hewitt when she was head of Liberty. She pointed out that people should not be allowed to go into a person’s home without permission.
When I was in the banking world we became very concerned about fraud. I was in the Midland Bank, which was the largest bank in the world—and the world’s largest bureaucracy. It was the same size as the British Navy. We had a rule of duty of care to our customers—although I was on the merchant banking side and we called them clients. We had a duty of care to look after their money. We were therefore concerned when it became apparent that officials could go into people’s homes without permission and without a court order and search and seize papers, including financial papers. I am not just speaking about the dreaded Revenue or the receiver of rates or the bee inspector.
This was a fear, so we set out to ask Government, as any good bureaucracy would, whether they could do something about it. We did a lot of research and found out in those days that there were innumerable Acts of Parliament and secondary legislation that enabled people to invade someone’s property without permission or without a court order. The answer was to turn to Parliament. I was a relatively young Peer—I came here in 1963—and in 1976 we started to ask the Government questions. Which department had what authority to do what, when and where? The answers did not come back. We asked again and again. Finally, many years later, I asked a Parliamentary Question about which powers a Minister’s department had to enter a property and search and seize. Each ministry wrote back to say that the information was not centrally available. The noble and learned Baroness, Lady Scotland, who was pretty important, wrote to say that the information would be too expensive to obtain.
As noble Lords know, in your Lordships’ House a Question is deemed too expensive to answer if doing so would cost more than £800. However, into the breach came the noble Lord, Lord Bach. As he will remember well, on 9 December 2005 I asked him a Question about what powers Defra had to go on to land to search and seize. He wrote back an extremely nice letter, which said that the main source of information was very difficult to find but that there was a book in the Library called The Law of Entry, Search and Seizure by a professor from Lincoln University. What the noble Lord did not know was that I had arranged for that book to be placed in the Library; we told his officials that this was the answer that should be given.
Over several years I introduced a Bill to say that people should not be allowed to go into people’s houses or search their property without permission or a court order. I got the support of the officials. The noble Lord, Lord West—I call him the noble and gallant Lord but Hansard strikes that out because “gallant” is not strictly correct—went slightly against the grain so we agreed to co-operate with his officials and formed a joint public-private sector Bill team. After a period of considerable research with the Home Office, which was very helpful, we found 1,200 powers of entry, which are now drawn up into the freedoms Bill.
At first, I managed to get my Bill half way through the House. It went through on the second attempt. It should have done a lot of work for the Government but, of course, the Government are never grateful in these areas of activity. Some of the stories that we heard were fascinating. Stuck in the back of my mind is who is allowed to do what, when and where. The important thing about the Bill was that it said that you cannot go into property or a house without permission or a court order. That was exactly what Patricia Hewitt had originally said in her paper in the 1970s. The question is: how do we proceed from here? I hope that the Government will be prepared to introduce these rules and regulations and make them clear to people.
There are other areas in this matter. What is reasonable force and what is intrusion? The noble Lord, Lord Bach, pointed out in his reply to me that you could use reasonable force to enter or search a property. To me, intrusion—if I may take the word from the title of my noble friend’s debate—is the invasion of privacy, but it can be all sorts of things. It can be surveillance. Therefore, I added questions about television cameras. We got the answer that there were 42,000 CCTV cameras in the United Kingdom. I wanted to know whether it was an invasion of privacy if people had a private camera, maybe for security purposes, that could survey someone else’s property. It was pointed out that a gentleman could be seen leaving a property where there was a lady to whom he was not married. In that case, could the pictures suitably be used if there were to be some form of divorce case or matters of that sort?
We all know that there are many such cameras. I asked the noble and learned Baroness who authorised the private cameras. She said that they must be registered with the Information Commissioner. Therefore, we asked the Information Commissioner a private question about how many privately-owned CCTV cameras there were. He said that there were none at that time. In replying to this debate, could the Minister tell us how many surveillance mechanisms there are? That is one form of intrusion.
Another form of intrusion takes me back to my youth. As a small boy I always went to welcome the postman and undo the catch on the gate, and on the gate was written, “No Hawkers or Circulars”. To me, a circular which is shoved through one’s letterbox is an invasion of privacy or is intrusive. Direct selling is similar. If you have an ex-directory telephone line to protect yourself, before you know it you will be receiving phone calls from call centres that dial one number after another. Or, if you wish to make a transfer of money from a bank account, before you know it someone will ring you and say, “Who are you? We wish to test you”. The transfer might be for small amounts, and you say, “Why should I tell you who I am? Who are you?”. You then find that the call centre is located in Calcutta—where I have been on many occasions—so you ask the young girl at the end of the line, “Could you please tell me the name of the club that plays rugby and cricket?”. She replies, “Oh, the Ballygunge Cricket Club”. You then ask, “What is the name of the Writers’ Building, where the head man lives?”, and then you ask for her name. You find that the name she gives is not her real name; it is Elspeth, or whatever. In order that girls should not be courted on the telephone, I suppose, they have odd names. To me, it is an intrusive matter when your financial details are raised and mentioned overseas. I am concerned about the term “intrusion.”
When one comes to other issues, people can become violent. We now have 120,000 Acts of Parliament, published and available on the net. We need, perhaps with various local advice bodies, to provide some advice for people as to who they can stop coming into their houses. When certain clever fraudsters pretend they are from a particular ministry or department, people may open the door. Once the foot is in the door and where a woman is on her own, the quick ransacking of odd equipment, often televisions, is possible. I have a certain anxiety about this and would like to know what the Government plan to do with the freedoms Bill. All this brings with it other international things under EU law.
In our peasant farm in France where we were for the fin des vendanges two weeks ago we experienced a real invasion of privacy. It was very frightening and extraordinarily aggressive, but at two o’clock in the morning, with two shots, it was put down. It was a 136-kilogram wild boar. That is twice the weight of my noble friend who introduced this debate. So in some rural areas it is apparent that people may often defend themselves against certain predators with weapons. To me, an intruder is also a predator.
In my deliverance today I am saying that it would be extremely helpful if citizens knew who could enter their property without either permission or a court order. That would provide a certain degree of security. My noble friend Lord Thomas of Gresford has given me tremendous comfort, because I shall have no problem at all putting my defence weapons on the wall rather than under the bed. Sometimes the weapon was deemed to be a baseball bat, because that was considered not be an aggressive weapon. Having played baseball, I know that it can be. I sit down with great gratitude to my noble friend Lord Blencathra for what he has done today. I had not realised it was going to be such an aggressive Motion; I was on the peaceful side of wanting to know who could enter one’s home, when, where and how.
Lord Bach
My Lords, I thank and congratulate the noble Lord, Lord Blencathra, on initiating this debate. He was much admired as a Member of another place for many years and is likewise already much admired in this House; not least, his speech is good evidence as to why. He spoke with great passion and clarity. I look forward very much to the Minister’s reply and will listen carefully to see what he will reveal about the Government’s intentions in this area. Those intentions have been, if I may say so, skilfully kept under wraps since the speech of his right honourable and learned friend the Lord Chancellor at the Second Reading of the Legal Aid, Sentencing and Punishment of Offenders Bill last June in another place. So we look forward to hearing what the Government propose when the Bill is considered on Report in another place in the next few days.
I want to thank the other noble Lords who have spoken in the debate. The noble Lord, Lord Thomas of Gresford, gave us a masterly overview of the state of the law as it has been and still is today, and the noble Lord, Lord Selsdon, reminded us of the hard work he has done in order to gain information about entry into property. Both noble Lords are among the finest storytellers in the House. We enjoyed the stories of the noble Lord, Lord Thomas, about his earlier cases, and the noble Lord, Lord Selsdon, as always, about his experiences.
Our position as the Opposition remains very much what our position was in government, and I shall refer, if I may, to an Oral Question in this House on 25 February 2010. I was sitting in exactly the position that the Minister is sitting in today and I was asked by my noble friend Lord Mackenzie of Framwellgate whether we planned to change the law following recent cases. We said then that we,
“strongly support the rights of members of the public to defend themselves, others and their property with reasonable force. Under the law as it stands, a person is entitled to use reasonable force in self-defence to protect another person or property, to prevent crime or to assist in the lawful arrest of a criminal. The Government—
the Labour Government—
“have no plans to change the law on self-defence. The law is already in the right place and is working well”.—[Official Report, 25/2/10; col. 1086.]
We stand by that position because the law in the field of self-defence does work. As the Minister’s noble friend, the noble Lord, Lord Carlile of Berriew, said in the same exchange:
“Does he agree that the exercise of prosecutorial discretion and the good sense of the jury is a real protection for individuals in these cases?—[Official Report, 25/2/10; col. 1087.]
Of course the answer to that is: yes, it is. I would argue that prosecutorial discretion is widely and sensibly used in these cases. In our view, the CPS guidelines referred to by the noble Lord who introduced the debate are clear, straightforward and, following the phrase used by the noble Lord, Lord Thomas, full of common sense.
According to the excellent House of Commons note that has been produced on this issue entitled, Householders and the Law of Self Defence:
“An informal trawl by the CPS suggested that between 1990 and 2005 there were only 11 prosecutions of people who had used force against intruders into houses, commercial premises or private land. Only seven of those … resulted from domestic burglaries”.
It is not claimed that that is the exact figure, but that is what the trawl found, and indeed I suspect that the figure is actually a bit larger because I do not think it includes a case in which I appeared for the defence, which I promise noble Lords I am not going to tell them about now—I saw the Minister worrying about that. But I do not think it is included because it was not a homicide case—it concerned causing grievous bodily harm. Surely this proves how seriously the Crown Prosecution has taken its responsibility over the years in not prosecuting when it would be wrong to do so. There is a second safeguard—the double lock that the noble Lord, Lord Thomas of Gresford, pressed on us—that the juries who hear these cases use their common sense, which is at the very heart of the reasonableness test, and invariably get their decisions right in these cases.
There is a very strong consensus—and noble Lords will have their own opinion whether it is a right consensus or a wrong one—that all those concerned with the administration of justice, be they judges, advocates, barristers or solicitors, or those who study these matters in detail, believe in essence that the law as it stands works and should not be tampered with. The Judicial Studies Board document of March 2010 sets out the law in order to assist judges in self-defence cases, both generally and in burglar-type cases in particular.
What are the Government going to do to change the present position? Are they going to do anything? The House will know that the Conservative Party manifesto of 2010 included a pledge,
“to give householders greater protection if they have to defend themselves against intruders in their homes.”
This seemed to fit in and imply that a grossly disproportionate test would replace the reasonableness test. The right honourable Chris Grayling, when he was shadow Home Secretary, said in December 2009:
“At the moment the law allows a defendant to use ‘reasonable force’ to protect him or herself, their family or their property. Conservatives argue that the defence that the law offers a householder should be much clearer and that prosecutions and convictions should only happen in cases where courts judge the actions involved to be ‘grossly disproportionate’”.
In December of that year, the present Prime Minister made an equivalent comment. Is that what the Government intend to introduce in the LASPO Bill? I invite the Minister to tell the House today.
In the Oral Question that I referred to earlier, the noble Lord, Lord Lester, then speaking from the Liberal Democrat Front Bench, said that,
“we on these Benches entirely agree with the way that the Minister”—
that was me at the time—
“has expressed the position, namely that there is a fair balance in the criminal law as it stands and no need for reform. Has the Minister noticed that so far in this short debate, the Official Opposition have not made clear their position? Does he agree”—
these are important words, I think—
“that if the Official Opposition were in government and sought to change the law in the way suggested, they would run up squarely against the European Convention on Human Rights and would find themselves in grave danger of violating the rights of the individual?”.—[Official Report, 25/2/10; col. 1087.]
Does the Minister agree with that statement?
I remind the House of some of the comments that have been made in regard to the “grossly disproportionate” test. Peter Mendelle QC, who was chair of the Criminal Bar Association in January 2010, argued that those who proposed that test should:
“Leave it alone and stop playing politics with the law … This is not law and order. This is no law—and disorder”.
Quite tellingly, Michael Wolkind QC, who represented the defence in the both the Martin and the Munir Hussain case—I think that he did so in the Martin case at appeal only—gave telling expression to why “grossly disproportionate” is the wrong test. He said that permitting householders to use any force which was not grossly disproportionate would amount to “state-sponsored revenge”. He said that there was no need for the law to be changed. He went on:
“The law already recognises that people react in a certain way in the heat of the moment … If I manage to tackle a criminal and get him to the ground, I kick him once and that’s reasonable, I kick him twice and that's understandable, three times, forgivable; four times, debatable; five times, disproportionate; six times, it's very disproportionate; seven times, extremely disproportionate — in comes the Tory test”—
he was talking in early 2010. He continued—
“Eight times, and it's grossly disproportionate. It is a horrible test. It sounds like state-sponsored revenge. I don't understand why sentencing should take place in the home. Why can't it go through the courts? Why can't the jury, as they always do, decide what is reasonable?”
We on this side think that the “grossly disproportionate” test is the wrong test. Can the Minister tell us whether the Government intend to bring in such a test and, if they do not, what they intend to change in the existing law, which we argue works very well?
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I am extremely grateful to all noble Lords for their contributions to this debate. Although it has been a short debate, it has been extremely informative and worth while. I pay particular tribute to the noble Lord, Lord Blencathra, in introducing it. I have told him before that one of my very dear friends, now no longer with us, was Lord Gray of Contin. I remember Hamish telling me that he had found a bright, new young star for the Conservative Party for whom he predicted great things. I am sure that it would have given Hamish great pleasure to have been here today to hear the noble Lord introduce these matters with such authority and passion.
The noble Lord, Lord Bach, ended with some interesting quotes, including “state-sponsored revenge” and “sentencing … in the home”. It is worth while stating from the beginning that this is not the Government’s intention or the direction of travel. I hope that my reply to the contributions that have been made in the debate will make that quite clear.
I am not a lawyer, so, unlike the noble Lord, Lord Thomas, or the noble Lord, Lord Bach, I cannot unfortunately call on experience from various cases. My only experience is that I once chased a burglar down the street in my pyjamas in my bare feet. I was 21 at the time but I could not catch him even then, so I cannot tell what I would have done if I had caught up with him.
Lord Thomas of Gresford
Does the Minister accept that if he had chased after him and had beaten him up then, that would have been revenge and not self-defence?
Lord McNally
By the time I had reached the end of a rather long road near Archway, I was so exhausted that I doubt that I would have inflicted much damage on him.
However, I understand the point made by the noble Lord, Lord Blencathra. Someone breaking into your own home is a terrifying experience. A noble Baroness in this House—I will not name her because I did not get her permission—told me about a burglary and what a trauma it was for her. Interestingly enough, the healing for her came when the burglar was arrested later and she was asked whether she would like to meet him. Her reason for telling me the story was to advocate the benefits of restorative justice. She said that whereas what she had confronted in her flat was a terrifying situation and someone she was very frightened of, when she met a rather pathetic drug addict who had broken in in the hope of getting something to feed his drug addiction the terror somehow drained away. Her story was a little bit of anecdotal evidence of restorative justice in action and benefiting the victim.
The noble Lord, Lord Bach, asked about the Human Rights Act and the ECHR. As he well knows, any proposals that we would have to make—
Lord McNally
My point on that is that, as with any legislation, the Minister in the sponsoring department would have to give the assurances on compatibility. I am absolutely convinced that when it comes to my turn to put these matters at the Dispatch Box my noble friend Lord Lester will show the same unswerving support to me as the Minister as he showed to the noble Lord, Lord Bach, those couple of years ago, but we will see.
There is no intention to sweep away the reasonable force test, but we think that there is a case for clarification. The current law on self-defence was last reviewed, as the noble Lord, Lord Bach, said, during the passage of the Criminal Justice and Immigration Act 2008. That Act clarified the operation of these defences. The court must consider whether the degree of force used by the defendant acting in defence of themselves or others, or to prevent crime, was reasonable in the circumstances.
I know that the Opposition trawl back into past speeches by various individuals—they are entitled to do that; I have done it myself—but the coalition agreement states:
“We will give people greater legal protection to prevent crime and apprehend criminals. We will ensure that people have the protection … they need when they defend themselves against intruders”.
It is on that basis that we have started this process, as the previous Government did in 2008. As my noble friend Lord Thomas pointed out, this is a piece of law that has developed over 250 years. He went back to quoting Blackstone, and it is amazing listening to Blackstone just how contemporary it is in the issues that it addresses.
There is one thing that worries me about “reasonable and proportionate” and about the vigour of my noble friend’s approach. My noble friend Lord Thomas referred to a man who shot a trespasser and even the pacific noble Lord, Lord Selsdon, extolled the virtues of a shotgun—in that case it was for a 136-kilo boar—but there is a worry that we have to get the balance right on this. We do not want a vigilante society or one where people, in the pursuit of protection, start thinking that the gun in the bedside table is the best protection that they could get. It just so happened that my copy of New Scientist fell through the door as I was about to leave this morning. I had better come clean; it does not come for me but for my two sons, who are regular readers. However, I was looking at it today and my eyes fell on an article which shows that in the United States around 20,000 children are injured by firearms each year; a further 900 incidents are fatal; and some 30 million American children live in homes where there is at least one firearm. I know that the United States has very much more of a gun culture but I worry that unless we get the messages clear on this, we could slip towards the idea that firearms are a legitimate way of protecting your home. That is certainly not the way that we want to go.
Incidentally, the noble Lord, Lord Selsdon, pointed out that he was a former baseball player, hence the fact that he has a baseball bat, but I saw again in one of those statistics that there are far more baseball bats sold in this country than people who play baseball. It is probably worth a PhD being done somewhere to find what other uses there are for them. One of the things that came through in the contributions is that the facts are different in every case. Like my noble friend Lord Thomas, I put great faith and trust in a jury and a judge who hear all the facts and can balance the arguments. Again, we must therefore not retreat too far from those principles.
The noble Lord, Lord Selsdon, produced an interesting speech, as he always does. The early theme of it was, “I am a pacifist but I will knock the block off anyone who says that I’m not”, but he also got on to the issue of an Englishman’s home being his castle and where we have got to on things such as search and seize powers. He pointed out that the Protection of Freedoms Bill, which will be coming before this House, will address some of the issues that he has been campaigning on, including the scale of coverage by CCTV cameras. There is always an interesting kind of clash with CCTV; anybody who has been canvassing on the doorstep knows that people like CCTV and the security it gives, yet they feel a little uneasy about a surveillance society. We will be having opportunities to discuss those matters. On the delivery of leaflets, I have had debates on the doorstep with householders who believe that I am intruding by pushing through their letterbox a Liberal Democrat leaflet, whereas I have argued that I am exercising my right in a participating democracy. To date, none of those exchanges has ended in violence on either side.
I share some of the concerns of the noble Lord, Lord Selsdon, about intrusive telephone calling and the way in which these bodies now seem to be able to ring through for sales purposes. You can get them blocked but the noble Lord identifies a very real problem. There was also his concern about officialdom calling. One can say time and time again never let anybody into your house unless you are absolutely sure who they are and sure about the validity of the person calling. Yet I know from reading my local newspaper that the elderly are particularly vulnerable to calls from bogus officials, who use that opportunity to commit crime. So some of the issues raised by the noble Lord about intrusion and related matters are very pertinent.
I should like to respond to the challenge from the mover, the noble Lord, Lord Blencathra, and to the noble Lord, Lord Bach, by stating exactly where we as the Government are. The two main issues that were raised were self-defence and squatting. I can assure noble Lords that both issues are high on the Government’s priority list. They form part of a range of policies to fight crime and to give people greater confidence that the law will protect them when they go about their business in a reasonable and law-abiding way. I will outline the Government’s plans for clarifying and, where necessary, strengthening the law in both areas in the order that the noble Lord raised them.
First, let us be clear that there are a number of simple precautions that homeowners can take to reduce the risk of burglary such as installing alarms, planting prickly shrubs or other things along the perimeter fence, not leaving valuable items on display and leaving lights on when the property is empty at night. But even if every precaution is taken, there will be instances where an intruder is not deterred from breaking into somebody’s home. As I have said, it can be a very frightening prospect indeed to be confronted by an intruder in your own home. The Government believe that the law should be as clear as possible about what a homeowner can do to defend themselves, other people or property.
As noble Lords have heard, the current law on self-defence allows a person to use reasonable force to protect him or herself or other people, and to prevent crime. The current law makes clear that a person in this situation may use all force that is reasonable in the circumstances as he or she perceived them to be at the time. That last bit is important: the law rightly recognises—my noble friend emphasised this—that a person acting in the heat of the moment cannot be expected to weigh to a nicety precisely what level of force was required in the circumstances. Having said that, I agree with the noble Lord, Lord Blencathra, that the public may still be doubtful about what “reasonable force” means in practice and that further clarification in this area would be beneficial.
Noble Lords may recall that my right honourable friend the Prime Minister announced recently that he wanted to put beyond doubt that homeowners and small shopkeepers who use reasonable force to defend themselves or their properties will have the law on their side. We have been working on new legislative measures to achieve that and are still finalising the details of the policy. The provisions will be designed to give people greater certainty about what it means to use reasonable force in self-defence. We are not planning to sweep away the principle altogether, or to give householders the right to use all the force that they are capable of mustering, which appears in some ways to be what the noble Lord is suggesting. Giving householders carte blanche to do whatever they like to an intruder would be a very dangerous strategy. A press release by the CPS in January 2005 provides some examples of where householders have and have not been prosecuted. In one extreme case, a defendant caught an intruder, tied him up, beat him up, threw him into a pit and set fire to him. I do not think that anybody would agree that that sort of behaviour should be condoned, even if the defendant was extremely frightened. If we abolish the concept of reasonable force and say that householders can do whatever they want to an intruder, we could effectively end up sanctioning this type of conduct, or other forms of vigilantism.
The noble Lord, Lord Blencathra, referred to recent cases in Manchester where homeowners had been arrested for killing intruders, only for the CPS to decide to take no action. In my view, these cases show that the law is broadly in the right place and that the majority of homeowners who act honestly and instinctively in self-defence will not be prosecuted, but I accept the noble Lord’s point that defendants in these cases may be on tenterhooks following such an intrusion and I think it is important that in these cases the CPS tries to act with some speed. I will draw his remarks to the attention of the Director of Public Prosecutions, who I am sure is aware of the need to be as expeditious as possible in deciding whether or not a charge should be brought, but I do not think it is right to say that householders should never be arrested for killing an intruder.
The police have a difficult job when they are called to an address where someone is dead. They have to work out what has happened and an arrest may well be necessary in order to allow for a prompt and thorough investigation of the case. The Government are working with ACPO on new guidance for the police in order to ensure that consideration is given to whether somebody may have been acting in self-defence, but there will always be cases that are not clear-cut, where it is important that the police investigate the allegation. I saw an example in an earlier briefing in which the apparent cause of death was an attempted burglary, but further police investigation showed that there were gang and drug aspects to the case that made the death not necessarily a result purely of self-defence. One has to realise that there are cases that are not as clear-cut as some of the Manchester examples that the noble Lord drew attention to.
Let me turn now to the points that the noble Lord raised about squatting. The Government share his concern about the harm that squatters cause. Residential and non-residential property owners have contacted Ministers and Members of Parliament time and again about the appalling impact that squatting can have on their homes and businesses. It is not only the cost and length of time it takes to evict squatters that irks property owners; it is also the cost of cleaning and repair bills which follow eviction. While the property owner is literally left picking up the pieces, the squatters have gone on their way, possibly to squat in somebody else’s property. Again, the noble Lord gave some very good examples of where even the smallest, most trivial of crimes bring down the full weight of the law, yet people can find themselves being told to take the civil law when their property has been squatted.
The current law already provides a degree of protection for both commercial and residential property owners, as offences such as criminal damage and burglary would apply. There is also an offence under Section 7 of the Criminal Law Act 1977 that applies where a trespasser fails to leave residential premises on being required to do so by, or on behalf of, a “displaced residential occupier” or a “protected intending occupier”. This offence means that people who have effectively been made homeless as a result of occupation of their properties by squatters can call the police to report an offence. However, there are many residential property owners, including landlords, local authorities and second home owners, who cannot be classified as “displaced residential occupiers” or “protected intending occupiers”. Given the level of public concern about the issue, the Government decided to consult publicly on options for dealing with it. There is a consultation paper out which sets out a range of legislative options. The consultation process ended on 5 October and generated more than 2,200 responses, which officials at the Ministry of Justice are now analysing.
While most property owners would evidently support tougher measures to tackle squatting, a number of bodies such as Shelter and other charities have pointed out that people would not squat if they had somewhere else to go. Of course, one of the Government’s priorities is to try to address the shortage of affordable housing. The Government are taking both sides of the argument into account as they develop proposals in the area. I cannot pre-empt the Government’s formal response to the consultation, but I hope that we will be able to announce our plans in more detail very soon. As I said, this has been a relatively short debate—although I have been told that I have over-run my time—but I hope that I have met a number of the points. I have certainly found it extremely useful, not least to have had a useful prod from both my noble friends.
Lord Blencathra
My Lords, I am very grateful to noble Lords who participated in this short debate and I am particularly grateful to the noble Lord, Lord Thomas of Gresford, for his masterful exposition of English law over the past 250 years and to the noble Lord, Lord Bach. There is only one question I have for him: did he win his defence case?
Lord Blencathra
I feel in a similar position today: I feel I have half won on something. I am grateful to my noble friend the Minister for his statement of what the Government intend to do, I look forward with interest to the proposals on squatting and I urge on him my halfway-house solution: let us tackle the problem of domestic premises being taken over first. If the Government’s changes to the law there work, then one can look at commercial premises afterwards.
On self-defence, yes, I was trying to push my noble friend further than I know the House wants to go, or the Government want to go. I have no real objection to the concept of reasonable force, if the CPS guidelines are followed. Like the noble Lord, Lord Thomas, and other noble Lords, I am entirely supportive of the jury system; we must keep that. I am merely suggesting that there are some cases I have read about where the CPS should not have taken someone to the jury stage, but should have exercised the judgment to drop the case—Omari is a case in point. I also note the point that the noble Lord, Lord Bach, made that, in a trawl, there were only about 11 cases, maybe slightly more, which the CPS did advance.
I conclude by saying that I hope my noble friend will urge the CPS to make a rapid decision in such circumstances. Those of us who are addicted to “CSI: Miami” are used to Horatio confronting a highly complex, horrific crime scene, with 20 different suspects, reaching clarity within 24 hours and deciding who the bad guy is and who is innocent. I rather want the CPS to do the same in all these cases. I thank all noble Lords who have participated in the debate and look forward to hearing the Government’s proposals in due course. I beg leave to withdraw the Motion.