Criminal Justice and Immigration Bill

moved Amendment No. 138: 138: Clause 128, page 88, line 37, after second ““to”” insert ““all the circumstances, including”” The noble Lord said: Last September, as we were expecting an election to be announced, the Lord Chancellor, Mr Straw, announced to the Labour Party conference that he was, indeed, seeking two regimes for the law of self-defence, with a separate regime for householders. The points he put forward at that time were taken up and expounded on Monday night by the noble Lord, Lord Kingsland, on behalf of the Conservative Benches, and we had an excellent discussion about it. The government Benches and ourselves were ad idem that the law of self-defence should be the same, whether it concerned a householder, a person in the street or any circumstances such as that. Therefore, what emerged in the Bill was an attempt by the Government to codify the common law of self-defence, regardless of any other matter relating to the law of assault, the law of murder or anything of that sort. This was simply a codification of self-defence but, if that is what it is supposed to be, I have some criticisms with which I do not propose to weary your Lordships for very long. In a very thoughtful speech on Monday, the noble Lord, Lord Elystan-Morgan, referred to the case of Gladstone Williams, where the Court of Appeal held in 1987 that a defendant charged with assault could plead self-defence successfully if she honestly but unreasonably believed that she was being attacked. The rationale of that unreasonable belief is that, in order to commit an offence of assault, the defendant requires an unlawful intention, and an individual who honestly believes that he is acting in self-defence against a perceived attack does not have such an unlawful intention, regardless of how unreasonable his perception may be of the risk that is advanced towards him. Lord Lane, the Lord Chief Justice at the time, said: "““The reasonableness or unreasonableness of the defendant’s belief is material to the question of whether the belief was held ""by the defendant at all. If the belief was in fact held, its unreasonableness, so far as guilt or innocence is concerned, is neither here nor there. It is irrelevant””." The Government have sought to put that principle into this codification section, but subsection (8) states: "““For the purposes of references in this section to what D believed, it is immaterial whether—""(a) any belief of [the defendant’s] was mistaken—" that is fair enough— "(b) (if it was mistaken) the mistake was reasonable””." That is directly contrary to the sentence of Lord Chief Justice Lane’s judgment that I read out—that the reasonableness or unreasonableness of the defendant’s belief is material to the question of whether the belief was held by the defendant at all. In other words, the jury is entitled to look at all the surrounding circumstances when it tries to come to a conclusion about what the defendant really did believe, as opposed to what he said he believed. That is the purpose of one of our amendments to this clause. The other aspect is perhaps best encapsulated in short terms in the judgment of the noble and learned Lord, Lord Woolf, the Lord Chief Justice in the case of Martin in 2002. Your Lordships will recall that that case, in Norfolk, received a great deal of publicity at the time. The noble and learned Lord, Lord Woolf, described the law of self-defence in these terms: "““When this defence is raised, the prosecution has the burden of satisfying the jury so that they are sure that the defendant was not acting in self-defence””." Therefore, the burden of proof is on the prosecution to satisfy the jury that it was not a case of self-defence. On Monday, the noble Lord, Lord Elystan-Morgan, pointed out that the wording of the clause is defective in that it refers to a defence of self-defence. There is no such thing as a defence of self-defence; it is for the prosecution to prove that self-defence does not arise. The noble Lord, Lord Elystan-Morgan, in a speech with which I agreed, said that it should be made explicit in the Bill where the burden of proof lies. In his judgment, the noble and learned Lord, Lord Woolf, went on to say: "““In judging whether the defendant had only used reasonable force, the jury has to take into account all the circumstances, including the situation as the defendant honestly believes it to be at the time when he was defending himself””." So when the jury are considering whether the force used in self defence was reasonable, according to the then Lord Chief Justice, the noble and learned Lord, Lord Woolf, it must look at all the circumstances, including the honest, even if unreasonable, belief of the defendant. However, Clause 128(3) makes no reference to ““all the circumstances””. It reads: "““The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be””." In other words, the jury must only look at the honest, if mistaken or unreasonable, belief of the defendant in considering whether the degree of force was reasonable, whereas, in the case of Martin, the Court of Appeal held that the jury must look at ““all the circumstances”” of which the belief of the defendant was only one. This may sound like a bit of a legal quibble but, when a person can be faced with a serious charge such as murder, it is important that the law is clear. I submit to the Committee that if the Government are seeking to encapsulate the common law and do no more, then they have failed in the aspects to which I have referred. I beg to move.