Criminal Law (Amendment) (Householder Protection) Bill |
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Mrs. Clark: My hon. Friend will be well aware that many people live above the shop. People who run a newsagents or a post office may have a flat above the commercial premises. While they are upstairs watching the television or having a meal in their private quarters, the shop beneath could be invaded. If they came down to try deal with the situation, I do not think that they would be protected as the Bill stands. Mr. Pound: I am obviously grateful to my hon. Friend. My amendment No. 5 specifically brings flats within the ambit of the Bill. It does not and cannot deal with the issue of people in transit from the flat above the shop to the shop. In many ways, and not for the first time, my hon. Friend has shone a beam of illumination into the murky world of putative legislation. That is the sort of problem that we have to face. This is not some abstruse, quasi-legalistic issue: a person could be standing in the dock of a court of this land with someone else 6 ft under the soil because of this sort of problem. I am grateful to my hon. Friend for her comments. I wish that I had had the wit or the foresight to table better amendments which had taken those points on board. Patrick Mercer: May I repeat the question that I asked earlier? I believe that the hon. Gentleman is trying to be helpful. Therefore, on amendment No. 7, could he give me a simple and, if at all possible, brief answer to a question? Does his definition include a babysitter or a shop owner? Mr. Pound: The hon. Gentleman is right in saying that I have not answered his question. I cannot answer it because I have not drafted the Bill. I have drafted the amendment, which states: Column Number: 21
It certainly does not include babysitters or au pairs because, as I said earlier, I was relying on two definitions that refer to and define the role of a resident or a person occupying a house as his residence. One is in housing legislation and the other is in common law. The hon. Gentleman will have noticed that the amendment does not say “primary residence”. Those words are frequently used in legislation, and, by logical extension, there can be a secondary residence. The amendment does not seek to define in those terms. I am trying to be helpful, as the Bill does not even approach the lack of comprehension in my amendments. The Bill is unclear, and I am trying to make it clearer. My amendments are semi-clear; I entirely accept that none of them are totally clear. I give way to someone who knows more about the law than I ever could. Lady Hermon: I am most grateful to the hon. Gentleman for his generosity in taking an intervention. I, too, regret that he was not a student of mine. May I draw to the attention of the hon. Gentleman and members of the Committee the fact that, although the amendments are very interesting indeed, they are superfluous, in that we already have on the statute book a definition of a building? A definition is provided in the Theft Act 1968, which includes as a building something with a degree of permanence. It also includes an inhabited vehicle or a vessel, which covers the hon. Gentleman’s concern about occupied barges in his constituency. We already have a working definition of a building. Mr. Pound: I am extremely grateful for that. Like the hon. Lady, I wrestled with the 1968 Act when I was considering the comments that I would make in this debate. My problem with the Act, which I read as part of my attempt at least to approach the degree of educational excellence that is displayed by many people in this Committee, is that it refers to a great extent to theft from vehicles. Even the hon. and gallant Member for Newark is not proposing that someone who happens to be sitting in a car when someone breaks into it can kill in self-defence or in defence of their residence. Sadly, there are people who live in cars, but the Bill is not about people living in knackered Mazdas on the bypass defending themselves against somebody smashing in the quarter light and reaching their hand through to grab them by the throat. If it were, we could talk about all the sections in the 1968 Act. The hon. Lady is correct in saying that there are already definitions and legal recourse in legislation for a householder faced with such a situation. However, I do not know—you do, Mr. Cook, but I do not—whether one can simply say “and within the Bill we incorporate the Theft Act 1968.” I do not know whether that would be plagiarism or whether it is even allowable. I thought that the purpose of legislation was to try to right a wrong—to correct something that needs correcting—and to do so in a coherent and utterly unambiguous way so that in months or years to
3.45 pmThe problem that we must deal with is precisely the one raised by the hon. Lady. Whether we can simply incorporate the Theft Act into the provisions I do not know, but I do know that the brief Bill that has been promoted, with the best of all motives, by the hon. Member for Newark, is not workable as it stands. I return to that original expression, not with a tone of aggression but with a tone of regret. I know what the hon. Gentleman is trying to do and I desperately hope that he can tackle the issue of confidence in the legislative process. However, the Bill is not the way to do it. Harry Cohen: I was pondering over the intervention of the hon. Member for North Down, which has me increasingly worried about cases in which the property from which the rights in question flow is a vehicle or a vessel. Disputes can happen over who owns a house, or who is the householder, as my hon. Friend will know, but they are more likely to happen about who owns a vehicle or vessel. We all know that there have been legal cases on such matters. Surely great complication will result if one of the people who claims such rights goes in, saying, “This is definitely mine, and I assault you for trying to come and get it or claim it,” and quotes the Bill as defence. Is not that a difficulty that the hon. Member for North Down has raised? Mr. Pound: Mr. Cook, you will forgive me for allowing my mind to wander briefly at the prospect of an officer on the bridge of a Type 23 frigate having someone pull up alongside in a rigid inflatable boat and try to invade the ship. I think that the defence would probably be fairly strong in that case, not to say robust. However, the point about vehicles is correct. We are not talking about someone occupying a vehicle as their residence—that is not what the Bill says—but the difficulty is that such a case could be affected. When the Theft Act 1968 is prayed aid we must consider all the ramifications—not as an intellectual exercise but as a matter of life and death. I respect the hon. Member for Newark, but the purpose of my amendments, on which I am just finishing— Mr. Mitchell rose— Mr. Pound: The purpose of my amendments, the introduction to which I am just finishing, is to seek clarification. I give way to the hon. Gentleman; I was just clearing my throat. Mr. Mitchell: I am so stunned by the remarks that have been made that I can barely rise to my feet. I, like the hon. Member for Leyton and Wanstead, have been pondering the intervention of the hon. Member for
3.48 pmSitting suspended for a Division in the House. 4.3 pmOn resuming— Mr. Pound: The hon. Member for Sutton Coldfield was making a point, with rather more grace than the hon. Member for North Down did, about existing legislation that covers the purpose of my amendments. Legislation does exist, but it is not before the Committee this afternoon. This afternoon, we are considering an amendment proposed by the hon. and gallant Member for Newark to the Criminal Law Act 1967, and I shall confine myself to that area. The fact that other aspects of common law, of criminal law, of various other pillars of legislation and legal precedents could apply is not within the Committee’s ambit. I suspect that you would have little patience with us, Mr. Cook, if we sought to widen the ripples of the debate so broadly. As I said, my amendments seek not to reverse the thrust of the Bill or to emasculate or destroy it, but hopefully to clarify it and its intentions and to help us to go some way in re-establishing the confidence in the power of the law to protect the individual, which is the crux of the matter before us this afternoon. Amendment No. 4 seeks simply to rule out proposed new subsection (1A) unless the building in question is a house and the person who uses the force is the householder. I entirely accept that by defining a house and a householder, and including those categories, automatically excludes a great many other categories. Sadly, unless we are to say that anyone can do anything with anything to anyone, we have to apply legislative stricture and define the Bill’s precise ambit, which is why I sought to limit the proposal to that of a house or a householder. However, in the spirit of charity, and having studied long into the night—not just Archbold and the other authors who have been mentioned—I noted that the definition of a house does not include a flat, a caravan or a boat. I could have extended the proposal and made it wider by including tents and people in temporary accommodation in tepees, wigwams and any number of bizarre new-age hereditaments. I am talking about houses, including flats, caravans or boats, in relation to the citizenry of this nation having the confidence that they can be protected in their home. I utterly endorse the point made by the hon. Member for North Down about the sanctity of
Harry Cohen: On a point of order, Mr. Cook. Could you obtain some advice from the Clerk? The title of the Bill contains the words “householder protection”, yet there is no reference to a householder in the Bill. The Bill proposes that a person may use force if they are on premises; should the title be altered? The Chairman: Order. The hon. Gentleman has made the point that he seeks to register. It is not a point of order for the Chair; it is not a point of order at all. Mr. Pound: I sympathise with my hon. Friend’s confusion. I referred earlier to my point about the juxtaposition of brevity and coherence, and the fact that the search for one may be detrimental to the other. Like the cavalry he knows so well, I sought to ride to the rescue of the hon. and gallant Member for Newark. Amendment No. 5 includes within its ambit flats, caravans and boats, although not what my hon. Friend the Member for Peterborough, in a typically prescient and helpful intervention, referred to as commercial premises where the person who operates the business lives above the premises. Unfortunately I lack my hon. Friend’s intelligence and wisdom, or I would probably have included it in the amendment. I extended the physical ambit in amendment No. 6, which is my favourite, to include a reference to
It is not an attempt to address the Kenneth Noye conundrum; Kenneth Noye killed a police officer in the garden of his house and his defence was that he feared that the police officer, who was in plain clothes, was seeking to enter the house. The amendment includes within the defined demesne the garden or any dwelling within that garden; that is essential. The hon. and gallant Gentleman may have some sympathy with the amendment, because he will realise that a person’s sanctuary—the word used by the hon. Member for North Down—can include their garden; a garden is a lovesome thing. The fact that someone invades a person’s garden must be given consideration, not just because that person may be lurking in a gazebo, resting in a hammock, or in a garage working on one of their cars, but because that garden is part of their property. If we are to allow people to defend themselves within their homes, the definition of “home” should include the area immediately around it: the demesne, area, garden or blessed plot. Lady Hermon: The hon. Gentleman described amendment No. 6 as his favourite. Will he reconcile his favourite amendment, which has the wide definition of a house to include a garden, with amendment No. 4—perhaps not his favourite—which states that
Is he trying to convince the Committee that a building equals a garden or any other ground belonging to the house? Column Number: 25 Mr. Pound: In many cases it could. For example, one could have outbuildings or sheds. In the part of the world that I come from, we dream of gardens and long for garages, and the closest we get to broad acres with a summer house is looking in catalogues. We tend to have lock-ups and lean-tos, but I accept that our life in west London is not typical, and some people have sheds, gazebos, garden houses and summer houses in their gardens. [Interruption.] I am reminded sotto voce by my hon. Friend the Member for Cleethorpes (Shona McIsaac) that there are those who have decking and hot tubs. I have no idea what either of those things are, but were I to be in a hot tub on some decking, and someone imposed their physical presence on my person, I would wish to defend myself. Lady Hermon: Perhaps the hon. Gentleman misunderstood my question. I have no difficulty with an outhouse or a shed constituting a building, because that is clearly the case. My difficulty is that amendment No. 4 contradicts amendment No. 6. Does a building include a garden or any other ground; are the two interchangeable? Mr. Pound: I am genuinely grateful to the hon. Lady. Not for the first time, I regret that I missed her Socratic dialogues and the colloquiums that she undoubtedly led when she was a lecturer at Queen’s. My amendments are complementary. Amendment No. 4 seeks to confine the legislation to a house or a householder. Amendment No. 6, which is poor but my own, and something that I have a certain affection for, follows through the logic of what happens if a person has a subsidiary building, be it a shed, a lean-to or a lock-up. In anticipation of the inevitable legal confusion as to whether a lock-up 200 yd down the road counts as a person’s house, I have sought to make life easier for the courts by stating that the lock-up would have to be in the garden. Within a garden, the whole magnificent domestic gamut, from gazebos to hot tubs, may be included, but we cannot anticipate what is likely to occur in the future. Fifteen years ago, nobody had ever heard of hot tubs, and in Northolt we still have not. However, there are those in Cleethorpes who speak of little else, so we have to include them. I hope that by defining the domain, I have addressed those issues. If my hon. Friend the Member for Cleethorpes wishes to discuss the matter further with me, I will join her in a hot tub to do so. Mrs. Clark: Although I am not proposing to join my hon. Friend in a hot tub, the points that he makes in his amendments are absolutely logical. Surely a garden or shed appertaining to property that an individual rents or owns should fall within the remit of the legislation. Are we saying that if an individual is attacked in their house, they would be covered by the legislation, but if they are two inches away in their garden, they would not be protected? Mr. Pound: Yet again, I am grateful to my hon. Friend, although I am slighted by her refusal to examine legislation in a communal hot tub. Her point is serious and touches on the point about a person
4.15 pmHarry Cohen: My hon. Friend’s approach is right and consistent in including a garden as part of a building. However, I ask him to give some thought to the difference between a back garden and a front garden. In most cases, if somebody comes on to a premises at the back garden, they should not be there—we can understand that. However, if someone comes into the front garden—perhaps an election campaigner delivering leaflets—we will assume that under common law they have a right to be there. Surely a householder should not be able to use the Bill as an excuse to assault somebody who has come up the front path. Is that a difference that my hon. Friend would take on board? Mr. Pound: I have to say that the contrast between front and back gardens may be more apparent to those in the Elysian fields of east London and the broad sweeping green sward of Leyton. It is not a luxury that we enjoy in our part of the world. A front garden for us tends to be a few hundredweight of pea gravel and occasionally a bit of off-street parking. Whether or not it is the possibility of an imminent election that has concentrated my hon. Friend’s mind, he has touched on an extremely important and relevant point. On Second Reading, I raised the case of someone who went to Milton road in Acton under the impression that they were in Milton road in Hanwell, which is where I live, with nearly disastrous results. That often happens in London, where there are many roads with the same name. We have a certain lack of originality—there are 122 Shakespeare roads and only one named after Karl Marx—and people quite often go to the wrong house. Whether we would evince much public sympathy if this were a protection of political canvassers Bill is a question that I leave to minds that are far greater than mine. I rather doubt that we would garner much support. The underlying point is right. If the householder has the right to defend himself or herself because of a perception—here I return to proposed new subsection (1A)(b) and the infelicitous phrase
Column Number: 27 we will be seeking to pry into the mind of the householder. A householder could see a Jehovah’s Witness, take a violent exception to their presence and then claim that they thought that they were under threat. How can we define what is in that person’s mind and what ought to have been apparent to them? If someone of a physically challenging appearance and a confused demeanour came charging up to the front door, as in the example that my hon. Friend gave earlier, should we be giving householders carte blanche to blow their head off just because they do not like the look of them? I think not. Patrick Mercer: We have been over this ground so many times. On Second Reading, it was made clear that anything that steps over the bounds and is grossly disproportionate would be illegal. The way in which the Bill is worded would not encourage any form of violence that is grossly disproportionate. I suggest that the hon. Gentleman has been persuaded of that many times in the past and that he is seeking merely to make this process longer than it need be. Mr. Pound: I was actually drawing my comments to a conclusion. If, as is apparent, the Bill excludes in proposed new subsection (1A)(a) force that is grossly disproportionate, one almost wonders what its purpose is, because the existing law specifically excludes grossly disproportionate force. It allows a person, within the bounds of proportionality, to use any means, including lethal force, to defend themselves. Let us not forget that, even in the tiny percentage of cases investigated by the CPS, there are three instances of people being killed by householders and the case not even going to court. If the existing law is doing the job and the Bill simply reiterates the existing law and excludes the existing exclusions, one feels churlish but one almost wants to ask what the purpose of the Bill is. Being a charitable soul and a great admirer of the hon. and gallant Gentleman, I assume that the purpose behind the Bill is to ventilate an issue of great concern in an attempt to reassure people who are concerned. I cannot and never will speak on behalf of the Government, but I am sure that they are grateful that he is seeking to explain to people that this Government and previous Governments have provided that legal and legislative shield that people can use to protect themselves in their homes. If, God forbid, lethal force is used, the person in that house has that right to use that lethal force. As far as I am concerned, that is how the law stands and, if the Bill were passed, it would not make an enormous difference, partly because of the confusion that my amendments are designed to address, and partly because it excludes those grossly disproportionate acts that are already excluded from the law. Amendment No. 7, which is perhaps not my favourite but is consequential on the earlier amendments, would simply include a new definition such that Column Number: 28
That is specifically to address the issue of squatters and illegal occupiers. I freely admit—mea culpa—that it does not include the babysitter or the au pair. That is my fault. I should have included them, but I did not draft the Bill; I simply drafted the amendments. My penultimate amendment, No. 8, would simply include holiday or other temporary residences. That is logical and sensible. If a person is attacked in their home, whether it is their second or first home is not as important as the fact that they are being attacked. The assault is the issue. I am not trying to wreathe this situation around with legal definitions of homes and residences. I simply seek to clarify the situation with these few brief amendments, which would, I hope, provide clarification and resolve the concern. Amendment No. 9 is vital and has been touched on by a number of hon. Members. It says that this clause does not apply if the person occupying the property is a trespasser. I turned to the law for the definition of “trespasser” and found that, by and large, it simply means a person who enters or occupies premises without the express permission of the owner, householder or person who is in a legal position to give that authority. The amendment is extremely important. We have heard examples of people who occupy derelict or unoccupied properties and have raves and various parties, of which I know absolutely nothing but my teenage children know too much. Will we be giving them the right to defend themselves against, say, the bailiff who was mentioned by my hon. Friend the Member for Leyton and Wanstead, or the environmental health officer from the local council who is knocking on the door and saying, “Would you consider turning the noise down?” Will we say that such people have the legal right to plunge a bread knife into an environmental health officer? Again, I hope not. I think that the hon. and gallant Member for Newark would probably welcome this amendment, because it would be useful and aid his overall purpose. I am given to understand that of all the words that I utter in this place, none are greeted with more warmth than, “in conclusion”. May I say, in conclusion, that I entirely respect the motivation of the hon. and gallant Gentleman? He has done the House a service in ventilating this issue, which is of concern throughout the land. I fear that the service that he has done has been more one of raising the matter for discussion and debate than of offering a legislative answer to a serious problem, but I respect him and thank him for the work that he has done. Come what may, and whatever the result of this afternoon’s debate and earlier debates, we shall have discussed something that needed to be discussed. We shall have faced a problem that had to be faced. We shall be confronting the reality of the lack of confidence about this matter. It is my job, and the job of the hon. and gallant Gentleman and the House, to try to restore that confidence, not just for the good of our constituents but for the good of all the people in the country. Column Number: 29 The Parliamentary Under-Secretary of State for the Home Department (Paul Goggins): It is good to serve under your chairmanship, Mr. Cook, and I think that you are already guiding us fruitfully in a positive direction. My hon. Friend the Member for Ealing, North has several times made the point that he does not criticise the motivation of the hon. Member for Newark in presenting the Bill. In that spirit of generosity, we should also thank my hon. Friends the Members for Ealing, North and for Leyton and Wanstead for tabling amendments to help to clarify the Bill. My hon. Friends have been as positive as they can in all that they have said to try to gain clarity about the practical application of the Bill. Of course, we must, in this place, move from a feeling or a philosophical point of view to something that will work in practice. I think that that is what my hon. Friends have sought. The hon. Member for Newark knows the Government’s position on the Bill. It has been clear from the outset. We are opposed to his Bill—but not because we do not see burglary as an important issue or because we do not understand the fear and terror that people who are burgled feel. Far from it. We are against his Bill because we think that the law is already clear. We accept, of course, that perhaps public perception of the operation of the law is not as clear as it should be. That is why my right hon. Friend the Prime Minister undertook, before Christmas, to carry out a review and to obtain clear views from those who operate the law—the Crown Prosecution Service and the police—about whether there is a problem with the law and a need for change. Their advice was clear and we are happy that the law is all right as it stands. I need to make that point now to provide a context for my further remarks. I want to speak positively about my hon. Friends’ amendments, but I do not want that to lead the Committee or the hon. Member for Newark to believe that we have changed our position on the Bill overall. |
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