Crime: Home Protection

Lord Thomas of Gresford Excerpts

Thursday 20th October 2011 Lords Chamber

[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.

--- Later in debate ---

[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—