Criminal Justice Bill [back to previous text]

Mr. Stinchcombe: If the hon. Gentleman is seeking proportionality, what is wrong with using the existing doctrine of contributory negligence, which specifically determines that compensation should be granted in proportion to the responsibility of others for the injuries suffered? Mr. Grieve: I am not persuaded that the principle of contributory negligence, which I understand well enough from practising in personal injury cases, Column Number: 1239 marries well with circumstances in which an individual has set out to commit a crime. I accept that it would operate differently in each case, but there is a public policy argument that there should be no right to litigate except in cases of major disproportionality. Any element of disproportionality should be sufficient to get over that hurdle, although in considering that shift of the goalposts I should like to hear the Minister's views, as well as those of other members of the Committee. This is a serious topic for discussion on which the Home Secretary appears to share our concerns. If we are not careful, we shall give the public the impression that the civil justice system is a gravy train, which can be used and exploited by people who they feel should never be allowed to bring a civil action. There is a danger of bringing the law into disrepute. I hope that the Minister will be able to help the Committee on that point. Mr. Malins: I support what my hon. Friend said. I will not reiterate his arguments but will focus on the general principle of self-defence. The new clause points to an area of our law that is unsatisfactory and brings into sharp focus the issue of self-defence in the criminal law. The troubles that we read about often come from cases involving self-defence. I hope that the Government will introduce their own proposals along the lines of the new clause. It is a well-known legal principle that an assault in self-defence is not an offence, because a person who is under attack or threat of attack, or who believes that he may be under attack or threat of attack, is allowed to use force to defend himself or his property, subject to that force being reasonable. What constitutes reasonable force depends on all the circumstances of the case. In any trial involving self-defence, directions are normally given to the jury on the basis of those circumstances, and of answers to questions about whether the attacker was on his own, whether he had a weapon, what the domestic situation was and how vulnerable the victim was. One gradually reaches the point at which the jury are left to decide whether self-defence applies. 9.30 am There is always a direction to the jury that they should be aware that a person who is under attack cannot be expected to weigh precisely the amount of force needed in self-defence. There is a slight presumption that if the person thought that he was using reasonable force, that might constitute self-defence. The question of self-defence is a regular feature of assault cases and as regular a matter of law as any other that crops up. By and large, it works well. However, the classic cases that get into the press—those that cause the public to become distressed—raise the wider issue. The papers are partly responsible, in that the public read of a man being assaulted or burgled—the victim—who, having fought back in some way, finds himself on the receiving end of a writ. It is a good thing that that point has been brought to the attention of the Committee through the new clause. Column Number: 1240 The hon. Member for Wellingborough (Mr. Stinchcombe) drew attention to the sort of extreme case on which we would all agree. It is plain that if, for example, a prostitute stole from a client and then got herself beaten severely, she would be prohibited from bringing a claim. The same would apply in the apple-scrumping case mentioned by my hon. Friend the Member for Beaconsfield (Mr. Grieve). A normal person would say that the reaction was completely over the top in terms of self-defence, and of course the victim should be able to bring an action for damages. Similarly, if somebody is caught by me stealing a pot plant from my garage, which is open to the street, it might be burglary. There is no disagreement about that. However, there are cases at the other end of the scale that might pose greater difficulties, even allowing for contributory negligence. Take a situation in which one is in one's home at night, perhaps alone. A burglar comes in and, very frightened, one goes downstairs to see what is going on. One notices straight away that the burglar is either armed—this is important—to extent of having, say, a knuckleduster on or a poker in his hand. In a fit of fear, one takes what might subsequently be thought to be a dramatic step. One takes the shotgun down from the wall and shoots the burglar. Who knows whether self-defence would apply? The view taken by the jury would depend on the directions that they were given and on the facts of the case. However, the point is that there is a potential sticking-in-the-throat problem when the civil action by the victim—in this case the burglar—takes place. The burglar is a man aged 25 to 30. Let us assume that the damage done by the householder is brief, not prolonged, but of such severity as to render the burglar incapable of active work for the rest of his life. It is not inconceivable that the victim, who may have a rotten bad character, may seek to commence a civil action. That could involve his suing for, shall we say, £500,000. The difficulty arises that, even with a strong contributory negligence system, if the so-called burglar—the wrong 'un—is found to be not just 90 per cent., but 95 or 96 per cent. contributorily negligent in a civil court, his original victim can still end up paying out a substantial sum. That sum may be £4,000, £5,000 or £6,000, whereas a blameless suer would have got £500,000. Even on that level, however, something sticks in one's throat, which is why that point must be addressed. Mr. Stinchcombe: The hon. Gentleman is making a powerful speech against the new clause and in favour of the existing system. Does he agree that the new clause fails to distinguish between good and bad cases and will treat all cases exactly the same? The beaten prostitute would not be able to sue for damages. Mr. Malins: The hon. Gentleman, whom I have known well over the years, is teasing me. He said that I made a good, powerful speech. I then waited for the punchline, which was also extremely powerful but said that it was against my own argument. I take that on the chin, as I take all such remarks. I still believe, however, that the fundamental issue needs to be addressed. Although we are absolutely of Column Number: 1241 one mind in relation to the extreme cases that the hon. Gentleman and I mentioned, we nevertheless have a problem with the so-called plaintiff in the action, whom we have called the wrong 'un, being capable of recovering £4,000, £5,000 or £6,000 from the original victim when the plaintiff may have been 99 per cent. at fault. In that situation, many of us would say that there could and should be an absolute bar and that no money should be recovered. The very fact that the issues of self-defence and the ability to bring a civil action when one is the original and serious wrongdoer have been highlighted by my hon. Friend the Member for Beaconsfield reflects public concern. Such concern must be addressed because the public are very good at assessing what is fair and reasonable in life. The public, together with my hon. Friend, have identified a potential unfairness in the current system that must be addressed. I am not entirely certain whether the laws on self-defence in criminal cases or contributory negligence issues need to be subtly revamped, but my hon. Friend has done the Committee a service by pointing out a problem. If today's debate enables us to move even slightly closer to a solution that will cure some of the public's genuine concerns, it will have been worth having. Mr. David Heath (Somerton and Frome): I am grateful to the hon. Member for Beaconsfield for introducing the debate and the way in which he did so. It is an important matter that substantially exercises members of the public. People are concerned when they hear of such claims going before the courts. They are especially upset when such cases are funded by legal aid. However, that is a most unfair distinction because it suggests that successful criminals may bring proceedings but unsuccessful ones may not. That is an unsound basis on which to make a distinction. However, it is undoubtedly a concern on which the Committee ought to reflect. I reject the solution offered in the new clause, as I think does the hon. Member for Beaconsfield. The tenor of what he said is that he does not actually believe that an absolute prohibition would be the right solution. As he said, it is a matter of proportionality. It is interesting that he should raise the case of the allotment holder in County Durham. I may be wrong, but my recollection is that the chap rigged up a shotgun inside his allotment hut. That is not a proportionate response to someone who is interfering with one's leeks. Even under those circumstances, however, contributory negligence cut in and vastly reduced liability for civil damages. Mr. Grieve: That case is sufficiently long ago for me not to be able to recall it correctly, but I think that it was not leeks that were being taken but tools from the shed. Numerous complaints had been made to the police, who were unable or unwilling to help. That was an example of someone being forced to extreme measures by the failure of our law and order system to offer adequate protection. Column Number: 1242 Mr. Heath: I do not want to belittle that case, or to appear unconcerned with the basic principle, but public concern is very much driven by the perception that the police are not able to provide adequate protection, particularly in rural areas. People feel very alone when faced with persistent wrongdoing. An independence of spirit, to be found especially in rural areas, can lead people to believe that they are capable of looking after themselves. If they do so in such circumstances, they can find themselves surprised to have wrongly assessed the level of risk and the response appropriate for self-defence. They can then end up in court for having exercised what they—wrongly—think are perfectly proper measures for their own protection. We have to tell them that they are not proper, because there is clearly a lack of proportionality in using firearms in such circumstances.

©Parliamentary copyright 2003	Prepared 4 March 2003