Police Reform and Social Responsibility Bill

Lord Thomas of Gresford Excerpts

Thursday 14th July 2011 Lords Chamber

Moved by

[Lord Thomas of Gresford]

244A: After Clause 96, insert the following new Clause—
“Exemption from civil proceedings for trespass brought by offender
(1) Section 329 of the Criminal Justice Act 2003 (civil proceedings for trespass to the person brought by offender) is amended as follows.
(2) In subsection (1)(b) at the end insert “, and”.
(3) After subsection (1)(b) insert—
“(c) at the material time, the defendant was not a constable acting in the course of his duty.””

[Lord Thomas of Gresford]

My Lords, the purpose of my amendment is to amend Section 329 of the Criminal Justice Act 2003 to exclude civil proceedings against the police for trespass against the person occasioned during an arrest. Section 329 was designed to cover a situation where an individual harms another while that other is attempting to commit a crime against the individual. It was enacted in response to the case of Tony Martin, who shot two intruders to his home who he thought were attempting a burglary. Section 329 provides that the court must give permission for an offender to bring a civil suit for an assault committed at the time and in the circumstances that the offender committed the act for which he was convicted. There was a great deal of public disquiet that a person engaged in burglary should be able to sue the householder who had injured him.

Under Section 329 of the Criminal Justice Act 2003, the defendant has a defence to proceedings brought by the injured offender if he believed that the offender was about to commit an offence, was in the course of committing an offence or had committed an offence and that the defendant’s actions were necessary to defend himself or another person, protect or recover property, prevent or stop the offence or catch or secure the conviction of the offender, but only if his action was not grossly disproportionate. In other words, it was designed to protect the householder who reacted instinctively against an intruder into his home and injured that person, so that no suit could lie in the civil courts unless the force used was completely disproportionate. Unfortunately, it appears that only the police have taken advantage of Section 329 when they injure an individual in the course of arresting him.

To cite the judgment in Anthony Adorian v Commissioner of Police of the Metropolis—2009, EWCA Civ 18, paragraph 7—the standard historically set for police action and

“painstakingly established in the course of two centuries and more, and fundamental to the civil rights enjoyed by the people of this country”,

is that,

“an arrest must be objectively justified and that no more force may be used in effecting it than is reasonably necessary”.

When a police officer arrests an individual, he may, in the historic development of the common law, use no more force than is reasonable. That was replaced by Section 329 which requires only that the police do not use “grossly disproportionate” force in arresting and that arrests are not in bad faith, even though they may be entirely unreasonable. In the Adorian case, Anthony Adorian suffered injuries in being arrested which were so severe that the force medical examiner concluded that he was unfit to be detained. His class of injury is associated with head-on car crashes or falls from a significant height, but the claimant, Adorian, had been walking at the moment of arrest and, as the judge said in his decision,

“there is at present no evidence suggesting either that he has brittle bones or that anything happened following his arrest which is capable of explaining the injuries”.

When Section 329 was debated in the course of the passage of the 2003 Act, the noble and learned Baroness, Lady Scotland of Asthal, introducing it, said that it,

“would strengthen the civil law to improve protection for victims of crime against civil claims for damages by offenders”,

and that it,

“benefits third parties who are not the direct victim of the offence, but who may have intervened to protect the victim or deter the criminal”.—[Official Report, 11/11/03; cols. 1307-8.].

There was no mention during the introduction of Section 329 in 2003 of the police. Nothing was said about the police.

Lord Justice Sedley, giving the judgment in the Adorian case to which I referred, said:

“Conscious of art. IX of the Bill of Rights 1689, we say only that there is no indication that Parliament was aware, much less intended, that what it was enacting would have this effect”.

Nobody thought that Section 329 would be used by police who had used unreasonable force in effecting the arrest of an individual. So there is a mismatch between criminal and civil proceedings as far as the police are concerned. It is a defence to a criminal charge of assaulting a police officer to show that you are protecting yourself against unreasonable force on the part of the police. In that situation, the police cannot argue that although the force was unreasonable, it was not grossly excessive. That is on the criminal side. But if the same person who had been arrested unreasonably by the police tried to sue them for civil trespass to the person, the police could and do rely on Section 329 and will succeed unless the claimant shows not that their actions were unreasonable—that an unreasonable amount of force had been used—but that that their actions were grossly disproportionate. In other words, a test to be applied for the householder defending himself against intruders has only been utilised, as far as research can pinpoint it, by the police to defend themselves against civil cases.

--- Later in debate ---

[Lord Wallace of Saltaire]

My Lords, this amendment is near identical to one tabled by the noble Lord, Lord Lester, during Committee stage of this Bill, and to which we gave a fairly full response at the time, so I will be brief. We promised the noble Lord in my response at the time that we would give the matter further consideration. Having done so, I am afraid that the advice we have received is that we remain unconvinced that we want to make an amendment that would make it easier for a convicted offender to sue the police for damages until we hear good answers to the questions and issues that I mentioned in Committee and which I will not repeat here.

We have looked at this again and take the view that the previous Government also took when the issue was raised in 2009. The House should be very clear that Section 329 does not give the police carte blanche to use disproportionate force. They are still subject to the criminal law which permits only reasonable force. All that Section 329 does is raise the bar by making it more difficult for criminals to get financial benefit from situations where they were the ones committing an imprisonable offence. It is reasonable and fair to treat a person who holds the office of constable in the same way for these purposes as any other member of the public. We should not rush to the assumption that it is an unintended consequence for the police to enjoy the protection of Section 329. As I have suggested, the police will inevitably be the people most likely to be able to invoke Section 329, given that their job involves confronting people who are in the course of committing imprisonable offences. The text of Section 329 supports this since subsection (5) specifically extends the protection to people who believe their act was necessary to

“apprehend, or secure the conviction, of the claimant after he had committed an offence”.

I therefore remain unconvinced that an amendment to Section 329 of the 2003 Act in the way proposed by the noble Lord is the right way forward. I hope that after the reassurance that we have again considered this issue the noble Lord will feel able to withdraw his amendment.

[Lord Thomas of Gresford]

I note that my noble friend Lord Lester raised this matter in the Policing and Crime Bill 2009, and that at that stage undertakings were given by the noble Lord, Lord Brett, on behalf of the then Government to consult the police on the unintended consequences. That was reiterated on Report, and in February of last year, the noble Lord, Lord Bach, said that consultation had not yet taken place, and it still has not taken place. I do not think that it is appropriate that this matter should be put on the shelf until we have another Bill into which it can be inserted. It is very important that the police should not be able to shelter behind a provision that clearly was not designed for them, as the noble Lord, Lord Bach, has just acknowledged. Consequently, I propose to test the opinion of the House.