Crime and Courts Bill [HL]

Lord Lloyd of Berwick Excerpts

Monday 10th December 2012 Lords Chamber

I say to those on the other Benches: there is no need for the law to be changed on this. Our common law gives us the answer to these challenges to home owners, who deserve to be protected—absolutely—and should not be put in fear of being prosecuted. The law as it stands is absolutely adequate. I am afraid that this is politicking, not legislating.

[Lord Lloyd of Berwick]

My Lords, I entirely agree with the noble Lord, Lord Beecham, the noble and learned Lord, Lord Woolf, and the noble Baroness, Lady Kennedy of The Shaws. I remember well when the Criminal Justice and Immigration Act 2008 was going through this House that I was much concerned by Section 76. I have always thought that the piecemeal amendment of the common law by legislation was a mistake unless such amendment was preceded by a report from, in the old days, the Criminal Law Revision Committee or, nowadays, the Law Commission. I suggest that there are two grave disadvantages in the sort of piecemeal amendment we are now asked to perform. First, it deprives the development in the common law of the flexibility that the common law provides as circumstances change. Once you put it in statute it is in statute, and if it is to be changed at all it has to be changed by statute. Secondly, it may often be initiated as the result of a particular campaign—this may be an example of that—without regard to the wider context.

I did not in fact oppose Section 76 when it went through the House because it at least did not in any way seek to change the law on self-defence. That is made amply clear by Section 9 itself. Section 76 was in some ways an odd provision because it refers both in subsection (1) to the test being one of reasonableness and in subsection (6) to the test being one of disproportion—although those two things might be thought to be opposite sides of exactly the same coin. That will not be so from now on because of the addition of the word “grossly” before the word “disproportionate”. For that reason Section 9, which made it clear that the common law was not going to be changed, has now itself been amended to show that, in this respect, the common law is being changed. We are thus now doing exactly what I feared would be the result if we stratified the law as we did in 2008.

What is being done is defended on the basis that it is very difficult for the householder, in the agony of the moment, to make a nice judgment as to what is reasonable or is not. That has always been the law, as my noble and learned friend Lord Woolf has made clear. Speaking from my own experience, I have always stressed that very point. In that respect, this will not change the law but it will, in fact, change the law in the way that I have described. Just as judges have got used to directing juries in accordance with Section 76, they will now have to change tack, which they should not be required to do.

[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.