Crime and Courts Bill [HL]

Debate between Lord Pannick and Lord Morris of Aberavon

Monday 10th December 2012 Lords Chamber

[Lord Pannick]

My Lords, the Minister said that householders should not be subjected to criminal liability because of the use of force which may appear disproportionate in the cold light of day, and that the amendment is designed to redress the balance. It is very important to identify precisely what the balance is at the moment and, as the noble and learned Lord, Lord Woolf, and the noble Baroness, Lady Kennedy of The Shaws, have said, the law is very clear on this subject. The official specimen directions to a jury—what judges up and down the land actually tell jurors on this subject—are contained in the Crown Court Bench book which says:

“When considering whether the defendant’s conduct was reasonable do bear in mind that the person who is defending himself cannot be expected in the heat of the moment to weigh precisely the exact amount of defensive action which is necessary; and in this regard, the more serious the attack (or threatened attack) upon him, the more difficult his situation will be. If, in your judgment, the defendant was or may have been in a situation in which he found it necessary to defend himself and he did no more than what he honestly and instinctively thought was necessary to defend himself, that would be very strong evidence that the amount of force used by him was reasonable”.

This provides all the protection that the householder needs or, indeed, deserves. The Minister did not refer to any cases of unjust convictions, or even unjust prosecutions that should not have been brought. The highest that the Minister put it in his opening remarks is that such cases “might conceivably” occur in the future. This is surely the weakest basis for proposing law reform that your Lordships will have heard for some time. Furthermore, I agree with the noble Baroness, Lady Kennedy of The Shaws, that these amendments are inconsistent with our obligations under Article 2 of the European Convention on Human Rights to protect the right to life. It is one thing to allow the householder to use proportionate force and to assess that on the basis of what they honestly and reasonably understand the facts to be at the time they act in circumstances of shock and distress. It surely is a very different matter for Parliament to authorise the use of disproportionate force.

With great respect, I cannot understand why the Opposition Front Bench is not opposing this amendment in the Division Lobby today, despite the noble Lord, Lord Beecham, eloquently explaining that the amendment would cause confusion and nothing positive. It is all very well to treat this as a Second Reading debate but it is the only opportunity that this House will have to oppose the amendment. I hope that the Opposition will reconsider their position. I am sure that many noble Lords would join them in the Lobby if a Division were called.

This amendment is unnecessary, unprincipled and inconsistent with our international obligations. I hope that the Government will think again.

[Lord Morris of Aberavon]

My Lords, I am sorry that I missed the beginning of the debate: I was engaged on other business. I support everything that has been said against this amendment. It is unnecessary and confusing, and will be inflexible. My experience is much more limited: I was a criminal practitioner who had to sum up in these kinds of cases on dozens of occasions.

On those occasions, I always would quote—I am grateful to the noble Lord, Lord Pannick, for giving us an account of the current sentencing preferred remarks by the Sentencing Council—a namesake, who is no relation although I knew him. Lord Morris of Borth-y-Gest used to say that in the heat of a moment, one cannot judge to a nicety the appropriate amount of force that is reasonable. That phrase used to be quoted in the sentencing remarks and was referred to by my noble friend Lady Kennedy.

In summing up, will the Minister enlighten us as to the form of words that would be used by a judge to sum up a situation where he is saying that a disproportionate amount of force can be used? I should like to know what those words will be. That would clarify the situation beyond peradventure. I fear that the Lord Chancellor is making up the law on the hoof and will rue the day if this becomes part of our law.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Pannick and Lord Morris of Aberavon

Tuesday 20th March 2012 Lords Chamber

[Lord Morris of Aberavon]

My Lords, I support the noble and learned Lord, Lord Lloyd. All he wants to do in the amendment, as I understand it, is to go back to the pre-2003 position. Because of judgments of the European Court, the Home Secretary is not able to take such a decision, but successive Home Secretaries have not been willing to give this kind of decision to the Parole Board, as envisaged in the noble and learned Lord’s amendment.

I believe that the present position is untenable. The noble and learned Lord referred to the case of Vinter, in which it was decided—by a majority of four to three, a tiny majority—that this was not an inhumane process. I do not always have the greatest confidence in this court, which is not a very happy court to be in. When I appeared before it as an attorney, you had half an hour. Your opponent had half an hour in which to reply. You might have had a few minutes to say a few more words but the court would file out having heard the argument and not have any exchange whatever with counsel or carry the matter any further. A few months later you would have a decision.

As I understand it, this matter will undoubtedly go to an appeal. It will be considered by a court of five and the Government may lose. In all probability, it may then go, if leave is given, to the Grand Chamber and the Government may lose. With these tiny votes and these tiny majorities, one cannot be sure what will happen in this court. The Government will be in a very difficult position and will undoubtedly have to take action.

Without any further words, I believe that the present position is not compassionate, is not human and is not in the interests of justice, whatever that may mean. Surely to leave an individual in this kind of limbo, which he was not left in previous to 2003, is not a practice that would commend itself to the civilised world. I therefore support the amendment.

[Lord Pannick]

My Lords, I have added my name to this amendment so persuasively moved by the noble and learned Lord, Lord Lloyd of Berwick. We are here concerned with the most awful cases of murder but, as your Lordships have heard, prior to 2003 such cases were reviewed after 25 years. There is no suggestion that that gave rise to any difficulty or any problems at all. The argument for the amendment is very simple. It is simply wrong in principle for anyone, however wicked, to be told that they must spend the whole of their life in prison with no possibility of review, however long is going to elapse and whatever progress they may make.

It is unlikely that a murderer who has committed such grave crimes that he has received a whole-life tariff will ever make the progress that would make release appropriate, but the point surely is that basic humanity demands that the offender has a chance, however remote, to prove to others and to himself that he can live a worthwhile life. It is surely also very unfortunate from the point of view of prison administration that a group of highly dangerous persons —that is, dangerous when they are sentenced—should be told that however well they behave they will never be released. Surely that makes our prisons much more dangerous places.

I have no confidence that the Minister will tell the House this evening that he will accept this amendment. I very much hope that he will but I have no confidence that he will in the light of what he said in Committee. However, I urge him to ask himself whether our penal regime should really be based on a principle of locking the prison door and throwing away the key.