Criminal Justice and Immigration Bill

The operation of the law on self-defence is an area of genuine public concern justifying the sensitive and detailed consideration that ministerial colleagues have given to it in recent months. I acknowledge that noble Lords also wish to consider carefully the Government’s proposal and have expressed a desire to subject it to greater scrutiny than was possible at Second Reading. I welcome such interest and am pleased that we are able to continue discussion here today. I would like to address an important question raised at Second Reading and in the amendments tabled by the noble Lord, Lord Thomas of Gresford. Having had the benefit of prior notice of his thinking, I welcome further reflection on the valuable points that he raises and I thank him for his contribution to the debate. The noble Lord’s first concern and the related Amendments Nos. 138 and 139 respond to a view that the Government’s clause may have moved away from a formulation used in the well known Tony Martin case. The formulation contained in the judgment of the noble and learned Lord, Lord Woolf, could appear at first sight to stipulate that the defendant’s belief be considered as just one of several factors to be considered when assessing all the circumstances. The noble Lord fears that the Government’s clause thus departs from the existing common law position by providing that the question whether the degree of force used by the defendant was reasonable in the circumstances is to be decided by reference to the circumstances as the defendant believed them to be alone. I am pleased to allay, I hope, the fears held by the noble Lord, Lord Thomas. At this point, I shall also adopt the view held by the noble Lord, Lord Neill, of the judgment in Martin by the noble and learned Lord, Lord Woolf. My contention is that in the Martin case matters went further than the noble Lord, Lord Thomas, suggests. We believe that the common law test of reasonable force is faithfully reflected in the Government’s clause, which sets out the key test that the defendant is to be judged according to his own perception of events. The noble Lord, Lord Thomas, shared with noble Lords a quote from the noble and learned Lord, Lord Woolf. The noble and learned Lord went on to say: "““It was for the jury … to decide the amount of force which it would be reasonable and the amount of force which it would be unreasonable to use in the circumstances in which they found that Mr Martin believed himself to be in””." Similarly, in the case of Owino, Mr Justice Collins, sitting in the Court of Appeal, explained that the test required the jury to decide whether the force used was reasonable in the circumstances as he believed them to be. The Judicial Studies Board made the same point in its specimen direction. That requires a jury, "““to consider the matter of self-defence in the light of the situation which D honestly believed he faced””." The direction goes on to indicate that a defendant who is labouring under a mistake as to the facts must be judged, "““according to his mistaken belief of the facts””." In summary, although I welcome the intention of the considered Amendments Nos. 138 and 139 tabled by the noble Lord, Lord Thomas, I suggest that they are not necessary. Clause 128 and its handling of the circumstances is, I submit, a faithful reflection of the common law position. Nothing in case law suggests that the reference to ““all the circumstances”” in the Martin judgment should be elevated into an element of the established common law principle that the degree of force used must be reasonable in the circumstances as the defendant believed them to be. I therefore ask the noble Lord to withdraw his amendment. Connected to the noble Lord’s concern is the question first raised by noble Lords at Second Reading, which has been discussed again today. At Second Reading, the noble Lords, Lord Thomas of Gresford and Lord Neill of Bladen, and the noble Baroness, Lady Kennedy of the The Shaws, all expressed concern that the Government’s proposals appear to be changing the test applied to the degree of force permissible from an objective basis to a subjective one. I can confirm that that is not the intention; I understand that my noble friend Lord Hunt has written to noble Lords accordingly. Clause 128 makes it clear that a person using force is to be judged on the basis of the circumstances as he believed them to be, but—and it is an important but—within the context of those circumstances the force used must have been reasonable, which is an objective test. I hope that that satisfies the concerns of noble Lords. The second set of amendments tabled by the noble Lord, Lord Thomas, Amendments Nos. 140 to 142, relate to force used in mistaken belief. They raise an interesting question: does Clause 128 suggest that the jury must pay no regard whatsoever to the reasonableness of the defendant’s mistake? As it stands, the clause allows a defendant to use an objectively reasonable degree of force in the circumstances as he honestly, albeit possibly mistakenly and unreasonably, believed them to be. Although the reasonableness of the defendant’s belief is immaterial as long as it is honestly held, the court should still be able to take into account the reasonableness of a professed belief when deciding whether his belief is to be believed in the first place. The defendant has to have held that belief and, if the jury rejects his evidence on that account, he will not enjoy the protection of the defence. Of course, the more fantastical and unbelievable the defendant’s account of his belief, the less likely the jury is to give it credence. Common sense would indeed prevail and is, I submit, reflected in Clause 128. We are, however, always open to suggestions that might improve the clarity of the legislation and are actively looking to see whether a revision might usefully reflect the noble Lord’s observation. We will therefore consider Amendments Nos. 140 to 142 further, and I thank the noble Lord, Lord Thomas, for raising the matter. Reference was made to the case of Williams (Gladstone). It is perhaps helpful to look at another case, the case of Oatridge, wherein Lord Justice Mustill, as he then was, made reference to Williams (Gladstone) and considered that the test might also benefit from development in that regard. I will come on to that. In the light of the explanations provided and the undertaking to consider important aspects of the amendments, I ask the noble Lord to withdraw his amendment. I understand that the noble Lord, Lord Neill of Bladen, also has an amendment in this group, but I am not sure whether he intends to move it.