Crime: Home Protection

Lord Bach Excerpts

Thursday 20th October 2011 Lords Chamber

[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?

--- Later in debate ---

[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 Bach]

I was quoting the comments of his noble friend Lord Lester about the Human Rights Act.

[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.

--- Later in debate ---

[Lord Bach]

I half won it.

[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.