14 January 2013
Shailesh Vara backs changes to the law to protect householders who use force in self-defence as long as it is not grossly disproportionate.
TMr Shailesh Vara (North West Cambridgeshire) (Con): It is a pleasure, as always, to follow the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), although, as will become apparent, I disagree with some of the points he raised. I also declare an interest as a non-practising solicitor.
I wish to direct most of my comments to clause 30, which deals with self-defence by householders in their own homes and by business people whose businesses are part of the accommodation in which they also live—principally, shopkeepers.
As far as I am concerned, this is unfinished business. As the Home Secretary said in her speech, I and a couple of other Government colleagues have in the past tried to change the law to make sure that what is proposed by clause 30 is enacted. I promoted a private Member’s Bill in December 2006, as others had done before me. It had cross-party support, including from the present Attorney-General and my hon. and learned Friend the Member for Harborough (Sir Edward Garnier), the former Solicitor-General, as well as from distinguished Members on the Labour Benches, particularly the right hon. Member for Birkenhead (Mr Field) and—dare I say it?—a very distinguished person in yourself, Mr Deputy Speaker. I therefore congratulate the Home Secretary on introducing this measure.
At present, the test for a householder is to use reasonable force in self-defence, which, I contend, is difficult to define and not easy to enforce. A higher test is required that allows the use of force as long as it is not grossly disproportionate. That will benefit not only the general public but the police and the Crown Prosecution Service, because it will provide them with much clearer guidelines within which to operate.
The example given by the right hon. Member for Dwyfor Meirionnydd would not exempt a person from being prosecuted. We are talking about individuals acting in the heat of the moment. The test is reasonableness—not with the benefit of hindsight, but as it appears at the time.
Mr Llwyd: The example I gave was of three people trying to break into a barn adjacent to a farmer’s house to steal from him. That is the heat of the moment, surely.
Mr Vara: To lie in wait with a shotgun is not to act in the heat of the moment; it is premeditated. That is not what clause 30 allows.
The only people whom clause 30 will not benefit are the criminals who break the law in the first place.
In considering the clause, it is important to reflect on some statistics. The crime survey for England and Wales for 2010-11 estimates that there were 745,000 burglaries during that period. In approximately 205,000 of those instances, the victims were at home, were aware that the offence was being committed and saw the offender. In approximately 75,000 cases, force or violence was used against the victim.
Those who support the present test often say that it is for a court—a judge and jury—to decide on the facts. However, it can take up to a year, or possibly longer, for a case to reach the courts. During that time, the individual has to put up with the stress and anxiety, especially those who are subsequently found innocent. It cannot be right that people who are going to be found innocent, along with their families, have to endure that anguish. It is therefore important that the law is clarified for people who act honestly and instinctively in self-defence.
The public should know that the law is on their side. Sometimes, it is right and proper that we speak up for the victims of crime and the general public who are on the receiving end of the violence, the figures for which I have just given. Let there be no doubt that we are talking about victims of crime—law-abiding householders, shopkeepers and military personnel living in barracks, because the clause covers the military as well.
It is not surprising that leading and prominent members of the police force support raising the test. The former Metropolitan Police Commissioner, Lord Blair, said on his first day in office, when asked about this issue:
“I thought reasonableness was quite a difficult concept at 4 o’clock in the morning in your kitchen, whereas something as stark as gross disproportionality did seem to me to be clearer.”
He was right. At 4 o’clock in the morning, a householder who is confronted by an intruder is frightened—indeed, he is likely to be petrified. His response will be instant and he will have no regard to reasonableness or otherwise.
Lord Blair’s predecessor, Lord Stevens of Kirkwhelpington, did not mince his words either, saying that
“householders should be presumed to have acted legally, even if a burglar dies, unless there is contrary evidence”.
The present commissioner, Sir Bernard Hogan-Howe, told the BBC that he agreed that homeowners need better protection than is available at present:
“I think, probably, there’s an argument at the moment for making sure that that bar gets higher, and that the homeowner has better protection, and the burglar is put more on notice that they’re at risk if they choose to burgle someone’s home while they’re in it”.
It is important to note that the higher bar is reflected in the guidance for police when arresting people. The test for individuals who claim to have been acting in self-defence was updated only two months ago:
“The changes are driven by the coalition commitment to protect householders and others from unnecessary arrest when they use force in the belief that they are acting in self-defence. The amended Code…sets out that, in order to establish grounds to suspect a person of committing an offence, officers should consider facts and information which tend to indicate the person’s innocence as well as their guilt.”
The Crown Prosecution Service guidance also uses a higher level:
“You are not expected to make fine judgements over the level of force you use in the heat of the moment. So long as you only do what you honestly and instinctively believe is necessary in the heat of the moment, that would be the strongest evidence of you acting lawfully and in self defence.”
It goes on to say:
“If you have acted in reasonable self-defence, as described above, and the intruder dies you will still have acted lawfully.”
Given that the guidance for the people who implement the law—the police and the Crown Prosecution Service—refers to a higher test than that laid down in the present law, it makes sense for us to clarify the law and make it easier to implement, rather than for the implementers to rely on guidance.
There is considerable public demand for this measure. When I introduced my private Member’s Bill in 2006, one of my local newspapers, the Cambridge Evening News, conducted a survey that found that more than 90% of the people who responded were in favour of raising the bar of the test. An ICM poll conducted by The Sunday Telegraph in December 2009 found that 79% of those who took part favoured changing the test from reasonable force to grossly disproportionate force.
A change in the law is not only necessary; it will send out a powerful message. It will tell law-abiding citizens that the law is on their side and not on the side of criminals. It will also show that an Englishman’s home is still his castle.
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Subsequent intervention in the same debate
Mr Vara: The hon. Lady cites the CPS, but what does she have to say about the fact that at least four Metropolitan Police Commissioners, including the present one, believe that the law should be strengthened and enhanced?
Jenny Chapman: As I was about to say, we are ready and willing to engage with the Government on any proposals they have that might further improve the law. We want to see the system work as best it can for victims of crime and, of course, to see justice done in every case. However, concerns have been expressed by many outside this place, and these need answering. The Government need to assure the public that the change does not add confusion and explain exactly how it adds protection. The line between “disproportionate” and “grossly disproportionate” is still unclear.
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TMr Shailesh Vara (North West Cambridgeshire) (Con): It is a pleasure, as always, to follow the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), although, as will become apparent, I disagree with some of the points he raised. I also declare an interest as a non-practising solicitor.
I wish to direct most of my comments to clause 30, which deals with self-defence by householders in their own homes and by business people whose businesses are part of the accommodation in which they also live—principally, shopkeepers.
As far as I am concerned, this is unfinished business. As the Home Secretary said in her speech, I and a couple of other Government colleagues have in the past tried to change the law to make sure that what is proposed by clause 30 is enacted. I promoted a private Member’s Bill in December 2006, as others had done before me. It had cross-party support, including from the present Attorney-General and my hon. and learned Friend the Member for Harborough (Sir Edward Garnier), the former Solicitor-General, as well as from distinguished Members on the Labour Benches, particularly the right hon. Member for Birkenhead (Mr Field) and—dare I say it?—a very distinguished person in yourself, Mr Deputy Speaker. I therefore congratulate the Home Secretary on introducing this measure.
At present, the test for a householder is to use reasonable force in self-defence, which, I contend, is difficult to define and not easy to enforce. A higher test is required that allows the use of force as long as it is not grossly disproportionate. That will benefit not only the general public but the police and the Crown Prosecution Service, because it will provide them with much clearer guidelines within which to operate.
The example given by the right hon. Member for Dwyfor Meirionnydd would not exempt a person from being prosecuted. We are talking about individuals acting in the heat of the moment. The test is reasonableness—not with the benefit of hindsight, but as it appears at the time.
Mr Llwyd: The example I gave was of three people trying to break into a barn adjacent to a farmer’s house to steal from him. That is the heat of the moment, surely.
Mr Vara: To lie in wait with a shotgun is not to act in the heat of the moment; it is premeditated. That is not what clause 30 allows.
The only people whom clause 30 will not benefit are the criminals who break the law in the first place.
In considering the clause, it is important to reflect on some statistics. The crime survey for England and Wales for 2010-11 estimates that there were 745,000 burglaries during that period. In approximately 205,000 of those instances, the victims were at home, were aware that the offence was being committed and saw the offender. In approximately 75,000 cases, force or violence was used against the victim.
Those who support the present test often say that it is for a court—a judge and jury—to decide on the facts. However, it can take up to a year, or possibly longer, for a case to reach the courts. During that time, the individual has to put up with the stress and anxiety, especially those who are subsequently found innocent. It cannot be right that people who are going to be found innocent, along with their families, have to endure that anguish. It is therefore important that the law is clarified for people who act honestly and instinctively in self-defence.
The public should know that the law is on their side. Sometimes, it is right and proper that we speak up for the victims of crime and the general public who are on the receiving end of the violence, the figures for which I have just given. Let there be no doubt that we are talking about victims of crime—law-abiding householders, shopkeepers and military personnel living in barracks, because the clause covers the military as well.
It is not surprising that leading and prominent members of the police force support raising the test. The former Metropolitan Police Commissioner, Lord Blair, said on his first day in office, when asked about this issue:
“I thought reasonableness was quite a difficult concept at 4 o’clock in the morning in your kitchen, whereas something as stark as gross disproportionality did seem to me to be clearer.”
He was right. At 4 o’clock in the morning, a householder who is confronted by an intruder is frightened—indeed, he is likely to be petrified. His response will be instant and he will have no regard to reasonableness or otherwise.
Lord Blair’s predecessor, Lord Stevens of Kirkwhelpington, did not mince his words either, saying that
“householders should be presumed to have acted legally, even if a burglar dies, unless there is contrary evidence”.
The present commissioner, Sir Bernard Hogan-Howe, told the BBC that he agreed that homeowners need better protection than is available at present:
“I think, probably, there’s an argument at the moment for making sure that that bar gets higher, and that the homeowner has better protection, and the burglar is put more on notice that they’re at risk if they choose to burgle someone’s home while they’re in it”.
It is important to note that the higher bar is reflected in the guidance for police when arresting people. The test for individuals who claim to have been acting in self-defence was updated only two months ago:
“The changes are driven by the coalition commitment to protect householders and others from unnecessary arrest when they use force in the belief that they are acting in self-defence. The amended Code…sets out that, in order to establish grounds to suspect a person of committing an offence, officers should consider facts and information which tend to indicate the person’s innocence as well as their guilt.”
The Crown Prosecution Service guidance also uses a higher level:
“You are not expected to make fine judgements over the level of force you use in the heat of the moment. So long as you only do what you honestly and instinctively believe is necessary in the heat of the moment, that would be the strongest evidence of you acting lawfully and in self defence.”
It goes on to say:
“If you have acted in reasonable self-defence, as described above, and the intruder dies you will still have acted lawfully.”
Given that the guidance for the people who implement the law—the police and the Crown Prosecution Service—refers to a higher test than that laid down in the present law, it makes sense for us to clarify the law and make it easier to implement, rather than for the implementers to rely on guidance.
There is considerable public demand for this measure. When I introduced my private Member’s Bill in 2006, one of my local newspapers, the Cambridge Evening News, conducted a survey that found that more than 90% of the people who responded were in favour of raising the bar of the test. An ICM poll conducted by The Sunday Telegraph in December 2009 found that 79% of those who took part favoured changing the test from reasonable force to grossly disproportionate force.
A change in the law is not only necessary; it will send out a powerful message. It will tell law-abiding citizens that the law is on their side and not on the side of criminals. It will also show that an Englishman’s home is still his castle.
| Hansard
Subsequent intervention in the same debate
Mr Vara: The hon. Lady cites the CPS, but what does she have to say about the fact that at least four Metropolitan Police Commissioners, including the present one, believe that the law should be strengthened and enhanced?
Jenny Chapman: As I was about to say, we are ready and willing to engage with the Government on any proposals they have that might further improve the law. We want to see the system work as best it can for victims of crime and, of course, to see justice done in every case. However, concerns have been expressed by many outside this place, and these need answering. The Government need to assure the public that the change does not add confusion and explain exactly how it adds protection. The line between “disproportionate” and “grossly disproportionate” is still unclear.
| Hansard
