Standing Committee C |
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Mr. Field: The hon. Gentleman talks about how the vast majority of people view his Bill. Does he not accept that the vast majority of people actually support Tony Martin’s stance? Patrick Mercer: That is a fair point. There was a widespread feeling in Newark, which was at the heart of the case, that Tony Martin behaved correctly—until the case was explained in detail. My reaction when I first heard about what was happening with Tony Martin was to say, “The law should be firmly behind him.” However, when the details were explained to me—this is why I have used the word “executed” in relation to Fred Barras—I quickly realised that Mr. Martin had behaved with gross disproportionality. If people understood the precise details of the case, they would agree. Harry Cohen: I shall be brief. I support the Government on the amendment. There is a simple difference between the test of reasonableness, which my hon. Friend the Minister outlined and which can, as he said, include considerable force, and the test of “grossly disproportionate”, which is in the Bill. The problem is that, if a judge has to consider the phrase “grossly disproportionate”, “disproportionate” can become the norm. I know that we are dancing on a linguistic pin, but there is an important difference between a test of reasonableness and a test of “grossly disproportionate”. Clearly, during a burglary, it is difficult to judge what is reasonable, but at least that is taken into account in the guidelines and in the way in which they will be interpreted by the police and the CPS. It would be wrong to have “disproportionate” as the norm. That is why I favour the Government’s position on the central matter of a test of reasonableness. That is better in the circumstances that we are discussing. Column Number: 64 Paul Goggins: May I pick up two points that were made by the hon. Member for Newark? The first is his partial quoting from the leaflet under the section headed
He quoted the phrase at the bottom of that section:
It is only fair to make the Committee aware that he failed to quote what precedes that phrase: examples in which someone could be deemed to have used excessive force. The first example is:
In other words, having controlled someone, the person takes a further step and punishes them for what they have done. However someone one may feel about that, once they have restrained the burglar, it is for the law to come into play to ensure that a prosecution goes ahead because a burglary has taken place. Inflicting a punishment in the ways described is not justifiable or acceptable in our society. The next example is:
We have all maintained throughout our deliberations that it is always better to prevent a burglary than to have to deal with the consequences. It is not acceptable if a householder knows that someone intends to break into their house and sets a trap, rather than telling the police. Those were just two examples following a series of clear statements by the Crown Prosecution Service and the police about how the law operates in the interests of the householder and the fact that they can use considerable force in circumstances where that is reasonable. It is only fair to place that on the record. The second issue concerns the Metropolitan Police Commissioner’s comments about whether the current law is adequate. We have had this debate before and I do not intend to go over it again now. All I know is that the commissioner is on the record as saying that he is happy with the present law. However, the hon. Gentleman has raised an issue today that I will look into. Do police stations up and down the country have the leaflet on display and is it easily available to members of the public who may come into the police station? In my view, it has been made clear that the leaflet should be easily available. I believe that many police stations have the leaflet available. I will speak to the Minister for Crime Reduction, Policing and Community Safety and convey the Committee’s desire to ensure that the information is available to the public. I believe that it probably is. If there are some isolated instances where it is not, we should deal with that. Lady Hermon: The Minister referred to police stations up and down the country. Can he confirm that that includes Northern Ireland, too? Paul Goggins: We may have a further opportunity to get into this territory. The hon. Lady and I have shared many debates on such matters. We know that the Bill is an amendment to an Act that operates in England
A burglary in Northern Ireland is every bit as horrendous as a burglary anywhere else. What is important is that the provisions are made within the relevant legislation. When I refer to up and down the country, I am referring to England and Wales and not to Northern Ireland, but I freely acknowledge the concerns that the hon. Lady rightly expresses. This is a matter of concern to her constituents and to Northern Ireland. I know that these issues are taken seriously by Northern Ireland Ministers, too. Lady Hermon: We have been discussing reasonableness and what is grossly disproportionate. I would dread to think that, even if we had a Northern Ireland Office responsible for criminal justice in Northern Ireland, reasonableness in the circumstances would be differently interpreted by police officers in Northern Ireland as compared with anywhere else in the United Kingdom. Paul Goggins: In a way, the hon. Lady is arguing on my side. She is arguing for having the test of reasonableness and not having different tests inside a house and outside a house, or different tests in Northern Ireland and England and Wales. The more we can have a standard and understood test in which people can have confidence, the better. Lady Hermon: With the greatest respect to the Minister, I am on the opposite side to him. I support the Bill because, although he has nicely argued that reasonableness is understood by the justice system and the judicial process, it is not understood by householders. While I do not think that the leaflet is particularly helpful, we have no leaflet in Northern Ireland, let alone one that tries to go some way to explain to ordinary people in their homes what is reasonable force. It is a very serious issue in Northern Ireland. Paul Goggins: I acknowledge the seriousness of the issue. The test of reasonableness is used in Northern Ireland under legislation that is specific to Northern Ireland. I cannot comment on the appropriateness or the availability of advice, leaflets and so on in Northern Ireland. That is not a matter for me. Again, the hon. Lady does her constituents a huge service by raising the profile of the issues. She does that assiduously and I acknowledge that, but she is taking me into territory for which I do not have responsibility. I ask her to accept that. Having made those comments, I do not intend to press the amendment to a vote. As the hon. Member for Newark has indicated, it takes us to the heart of the Bill, but there will be other opportunities for us to express our views. I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Column Number: 66 Harry Cohen: I beg to move amendment No. 3, in clause 1, page 1, leave out lines 12 and 13. I add my tribute to you, Mr. Pike, in what may be your last Committee. I have regularly visited Burnley, and I know what high esteem you are held in there. I also recall that we were both elected in 1983—some esteemed people came here in 1983. I regularly burned the midnight oil during my work and, when I left the House, invariably, only one person was still working and that was you, Mr. Pike. You have worked extremely hard for your constituency and for Parliament. Amendment No. 3 would remove the provision:
That basically says that the Attorney-General must look at all cases in which there may be a prosecution to consider the tests in the Bill of whether the force was grossly disproportionate and whether that was apparent to the person who used it. The two lines are superfluous, because the Attorney-General already has a lot of influence and, if he chooses, can use that influence and make his legal expertise known to the Crown Prosecution Service and to the Director of Public Prosecutions. There does not seem to be any need for him to be directly involved in the way the Bill proposes. We already have guidelines from the police and the DPP, which we have talked about, that say that they will consider swiftly and sympathetically the situation of the householder, and not the burglar—I agree with that. A quick decision is promised, involving the senior policing investigator and leading lawyers in the DPP, who will be in charge in such cases, so involving the Attorney-General after that seems unnecessary and would slow the process. A decision to prosecute would be left hanging over the householder when it could be out of the way if the Attorney-General were not involved. The Attorney-General does not currently have such a role, and it would be an additional burden on him. He is already busy. For the sake of the Committee—I do not want to be accused of filibustering—I will not talk about his role in advising the Government, for example, on the legality of going to war, but he has that role. If the Bill dealing with religious hatred is passed, he will also have a role in that no prosecution would take place unless he has had a say, although that Bill might be blocked by the Conservative and the Liberals. The Attorney-General also has a specific role in cases where there are two life sentences. He can get involved and bring such cases back before a court. I will not go through the whole list that has been provided to me, but he has many functions to perform. Both the evidence and public interest factor will already have been taken into account by the police and the DPP, with senior officers involved. As I said on Second Reading, it is not right for the matter to be swept under the carpet. There must be a proper investigation. If nothing else, a coroners court would hear the case if a burglar were killed. That is something that the family of that person may well want, so there has to be a proper investigation. Column Number: 67 10.15 amIf it really is a question of the use of excessive or unreasonable force—even if it were grossly disproportionate, as in the case cited by the Minister of someone punishing someone they already had under control—it is right and proper for the senior officers of the DPP and the Crown Prosecution Service, or the police, at an earlier stage, to take that decision. The Attorney-General is not needed to deal with such a case. He can already use his influence and there does not need to be a formal role. As with my other amendment, this is a probing amendment. I have said why those lines are not necessary and I am interested to hear what the hon. Member for Newark has to say to justify them. Patrick Mercer: Clearly, there are two strands to the Bill. The first deals with reasonable force versus grossly disproportionate force. The second strand, which is every bit as complementary, might not be as legalistic in its phrasing, but it is every bit as important, and it would ensure that those who face prosecution only do so when there is no alternative. A little under two years ago, we were burgled in rural Nottinghamshire, which is not unusual. Mercifully, neither my wife nor myself were in at the time. We lost a certain amount of property, but, mercifully, no one was hurt. It did not matter terribly, but the fact remained that I spend a great deal of time in Westminster and my wife spends a great deal of time at home in Nottinghamshire by herself. I said to her, “If this happens, you must make sure that you confront the burglar and deal with him or her.” You do not know my wife, Mr. Pike, but I promise you that she is no shrinking violet. She is married to me, so she cannot be. I admire her physical courage. Mr. Swire: Hear, hear. Patrick Mercer: My hon. Friend encourages me, as he does know my wife. Having said to my wife to take that action, I asked her to explain why she would not. She said, “I am quite clear about this. No matter how the law is framed at the moment, no matter whether we have to prove reasonable or unreasonable force, I know quite well that if I pick up the riot baton that you used with such effect in Northern Ireland during many tours over there and use it on an intruder, I will, at best, face many months of investigation. I will be arrested, I will go to court and I will have my life thoroughly disrupted.” During subsequent conversations, we discovered that it was extremely unlikely that she would receive a sentence—not impossible, but unlikely—but her opinion was reinforced. She said, “I absolutely will not confront an intruder because I know that I will be tacitly punished.” Clearly, this is all theoretical. Practically, let me cite the case of Mr. Charlie Mayall from York drive in Newark. An intruder came into his property, and he thumped that intruder with a piece of wood. After five months of investigations and four court appearances, and after being handcuffed and taken to the police
On Second Reading, there was some to-ing and fro-ing between the Minister and myself about the investigative work done by several newspapers. The Crown Prosecution Service demonstrated that there had been only 11 prosecutions in 15 years. I do not want to argue that case, although the analysis was flawed, and the CPS went on to say that its list was never accurate. However, it does not account for people such as Mr. Charlie Mayall who suffer at the hands of the law, not because they are eventually found guilty and sent to prison, but simply because the process as it stands is too cumbersome and is weighted in favour of the intruder and the burglar, not the householder and the shop owner. We have therefore clearly and simply introduced the proposal that such cases would be brought before the Attorney-General, one of our most senior law officers and an eminent lawyer, so that he or she can decide which cases go to trial. That would have several effects. First, it would reassure the public. It is in line both with the introduction of the phrase “grossly disproportionate”, which brings criminal law into line with civil law, and with our endeavours, through the Bill, to reassure the householder. People would feel much more certain that they could deal with intruders without necessarily having to go through a painful process of legal ins and outs before being dismissed by a judge and jury. Secondly, the proposal would ease the burden on the police force. I come from Nottinghamshire and I am acutely aware of the overstretched resources of my constabulary. I do not want to rehearse a completely different argument, but we have few enough policemen in my county to deal with the problems that we face. If the clause lessens the burden of investigation that falls on them, that will be a good thing. Lastly, the Crown Prosecution Service is also busy. If we can lessen the number of cases with which it has to deal, it will be able to concentrate on serious matters and will not have to impose on the police to carry out needless investigations that end up, more often than not, wasting time and imposing stress. The issue is very simple. I understand exactly the point made by the hon. Member for Leyton and Wanstead (Harry Cohen), but a line needs to be drawn in such cases, not by the Crown Prosecution Service or the Director of Public Prosecutions, but by the Attorney-General. Despite the quotations that others and I gave from the Attorney-General, I have absolute respect for that gentleman and I am absolutely certain that if his judgment is brought to bear, the number of cases will be lessened considerably. If that is the case, it will be good for the people, good for the police
Paul Goggins: I pay tribute to my hon. Friend the Member for Leyton and Wanstead for moving the amendment, because it raises important issues of principle and practical efficiency, and it is right that the Committee should deliberate on them as part of its overall consideration of the Bill. On the point made by the hon. Member for Newark about the Crown Prosecution Service survey, this may be the last opportunity clearly to set out on the record the nature of that survey. It was never intended to be an exhaustive analysis. It was an informal survey to capture in rough and round figures the number of cases in which prosecutions had been considered or carried out over the past 15 years. For the record, the CPS found that it had considered whether to prosecute an occupier for assaulting an intruder in 26 cases over the past 15 years. In 15 of the 26 cases, the occupier was not prosecuted, on the basis that they had a sustainable claim to have acted in self-defence. In 11 of the 26 cases, there was a prosecution. Five led to a conviction, five to acquittal and in one case the outcome could not be recalled. Careful deliberation by the Crown Prosecution Service led to more than half the number of cases not proceeding to prosecution. The justice system worked properly and the jury decided to acquit in half the cases where there was a prosecution. That is the nature of the informal survey that was carried out. I hope that it is helpful. Patrick Mercer: It is helpful and is exactly the sort of comment that I expect from the Minister because it is transparent, honest and straightforward. What worries me is that the Crown Prosecution Service, quoted in The Sunday Telegraph on 16 January, said:
The Minister referred to an informal trawl and a rough guide—I think those were his words. Why then did the Home Secretary himself hold up the figures as a talisman—a “nuclear deterrent” to the Bill—and place so much faith and so much trust in an informal trawl and a rough guide? Paul Goggins: For the simple reason that it was very important to establish at an early stage in the review how extensive the perceived problem might be. Were there hundreds of such cases, or thousands? What was the scale of the problem? From that quick survey, which was never described as exhaustive—the results were not described as 100 per cent. accurate because it was a quick look at a system going back over 15 years—we found only 26 cases in which prosecution had even been considered, and only 11 cases in which it had actually been carried out. Regardless of whether more cases would be discovered with a more exhaustive and extensive search, the indication is clear that there are only a very small number of cases. That is the Home Secretary’s point, and in that he is entirely accurate. My hon. Friend the Member for Leyton and Wanstead said he hoped that his proposal would reduce the number of cases. My argument is that the
I accept, however, that delay is a matter of concern. The hon. Member for Newark raised one case in particular that highlighted that. It was therefore important that when the Crown Prosecution Service and the police issued the new guidance in conjunction with the leaflet, they made it clear that such delay is not acceptable. In future, any possible consideration of prosecution will be carried out by a very senior officer in the CPS. I hope our constituents will be reassured that the issues will be dealt with quickly by senior and experienced people so that something that might happen in isolated circumstances—someone who ultimately is not prosecuted is, none the less, subject to months of uncertainty and delay—does not compound the trauma that a person may already have suffered as a result of the burglary. That is a fair point, but it has been taken up in a practical way in the guidance. The provision is unnecessary. The code for Crown prosecutors sets out clearly the two-stage process in which possible prosecutions are considered: first, the evidential test—whether there is the evidence to sustain a possible prosecution—and, secondly, the public interest test, both of which are outlined in detail in the code. The position is clear from the number of acquittals in cases where prosecutions have taken place. We have the assurance that the jury has the final say. Moreover, in the Crown court, the judge could stop a trial if it reached a point at which it was clear that the prosecution was not sustainable. My hon. Friend the Member for Leyton and Wanstead has persuaded me, and I hope that he has also persuaded the hon. Member for Newark. 10.30 amHarry Cohen: I am grateful to the Minister for his comments. They confirm my view that the proposed new subsection is superfluous. The hon. Member for Newark was eloquent, as always, and made a good case, but I am not wholly convinced by it, especially after hearing the Minister’s remarks. I said that the amendment was probing in nature, and I am grateful that the arguments have been put before the Committee and are on the record. They might be the subject of future consideration by this House or the House of Lords, or might be included in a future Bill. I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 1 ordered to stand part of the Bill. Column Number: 71 Clause 2 Short title and extent Lady Hermon: I beg to move amendment No. 11, in clause 2, page 1, line 17, leave out ‘only’ and insert ‘and Northern Ireland.’. Despite the tone of my voice, I have the highest regard for the Minister. I feel very strongly about the measures that we are discussing. The republican ceasefire has been in place for more than 10 years, as has the ceasefire of the loyalist paramilitaries, and in that time there has been a dramatic increase in burglaries—very serious burglaries—across Northern Ireland. Many of those burglaries have been accompanied by extreme violence towards the occupants, in particular elderly occupants. I told the Minister that that is a serious problem. My father lives on an isolated farm in County Tyrone. He lives in the Mid-Ulster constituency and his MP is a member of Sinn Fein who is not here to speak up for pensioners or farmers, or on any other issue. My father is 88 and lives on his own. He is much more apprehensive now about being burgled in his home than he was about being attacked in the 30 years of a terrorist campaign in Northern Ireland. That is typical of the view of many elderly people across Northern Ireland, particularly those who live on remote, isolated farms. I was therefore disappointed—I chide the hon. Member for Newark about this ever so gently—that the Bill’s provisions do not extend to Northern Ireland. They should do. I had great respect for the previous Home Secretary. It is a measure of the regard in which he was held in Northern Ireland that, at an Ulster Unionist party conference, the mention of the previous Home Secretary received a round of applause, whereas the party leader did not get a round of applause at a particular point. The previous Home Secretary made it his business to ensure that there was uniformity and certainty in sentencing and in the law across this kingdom. The Belfast agreement is in place, which assured the people of Northern Ireland that Northern Ireland would remain part of the United Kingdom unless and until they voted otherwise. The people of Northern Ireland expect to be treated just the same as those in Brighton, Newark or north Devon. During my short time in the House—I entered in 2001—serving as a Member of Parliament has been a privilege and honour. I have loved the job, but I have become increasingly concerned about the lack of joined-up thinking between the Home Office—there is a good Home Office team, something that I would say behind the Minister’s back as well as to his face—and the criminal justice division of the Northern Ireland Office. That is not a criticism of the Minister, but it appears that there is a cadre of officials involved and, when we discuss criminal law—be it on domestic violence or other matters—Northern Ireland lags behind. Unfortunately, the Northern Ireland Assembly, of which I was hugely supportive, was suspended for various reasons in October 2002, well over two years ago. We have a democratic deficit in Northern Ireland
When we are dealing with a private Member’s Bill on an issue as important as clarifying the law on whether a homeowner would be prosecuted in the circumstances in question, it behoves both the Government and the Opposition—whichever party is in those places after the general election—to bear in mind the responsibility of this Government to the people of Northern Ireland. When criminal justice legislation is introduced, Northern Ireland should not be shelved by an Order in Council that goes through a Committee where, although I may talk until I am blue in the face, not a dot or comma can be changed. Northern Ireland’s criminal law should instead be dealt with in primary legislation, which should be debated in the House in line with other primary legislation on criminal justice, and it should receive equal scrutiny. |
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