Policing and Crime Bill

So late is the hour that I shall draw attention to the fact that the Minister seems to think that we are discussing something called constitutional renewal, which is not the case. The reason I am not in my bed but am keeping everyone up is because of the important issue raised by the Court of Appeal in the Adorian case. I am sorry that the noble Lord, Lord Hunt of Wirral, and the noble and learned Baroness, Lady Scotland, are not here, as they were the principal players involved in us being where we are now. The amendment seeks to amend Section 329 of the Criminal Justice Act 2003 to remedy a classic example of unintended consequences, which were brought to my attention as a result of the recent decision of the Court of Appeal in the case of Adorian v The Commissioner of Police of the Metropolis. It was a strong Court of Appeal with Lord Justice Sedley, Lord Justice Keene and Lady Justice Smith. At this stage, this amendment is probing, but I promise to return to it at the next stage. Section 329 was enacted in response to the case of Tony Martin, the Norfolk farmer who, in 1999, shot two burglars who had entered his house. In 2003, the surviving burglar sued Martin for damages relating to his injuries, although he later dropped the case. During the passage of the Criminal Justice Bill, the noble Lord, Lord Hunt of Wirral, moved an amendment entitled, ""Excluding civil liability of victims of crime"." Following the debate, he withdrew his amendment and the Government agreed to table their own amendment along the same lines. That resulted in Section 329 which provides a defence to a civil suit for trespass to the person brought by a convicted person, where, during the commission of that crime the victim or a third party has taken action which he believed necessary to prevent the crime or to protect themselves, or another person or property. The defendant must have believed that the claimant was about to commit an offence, was in the course of committing an offence, or had committed an offence and the action must not have been grossly disproportionate. Trespass to the person refers to assault, battery or false imprisonment. Although the provision clearly applies to third parties who may have intervened to protect the victim or deter the criminal, at no stage in the parliamentary debate were actions against the police discussed. Since this provision came into force in January 2003, it has been used only by police defendants seeking to defend themselves against civil actions. In the case of Adorian, he had been convicted of obstructing police officers in the execution of their duty. He sought damages from the police for trespass of the person and negligence in relation to the injuries suffered during the course of his arrest which were, ""so severe that the force medical examiner concluded that he was unfit to be detained"." The police sought to strike out the action using Section 329. Lord Justice Sedley gave the judgment for the three judges of the Court of Appeal. One of the things he said was that the court could not fail to notice, ""that this section has nothing on the face of it to do with policing. In what one can call the Tony Martin situation—a sudden encounter with a crime—it gives the individual a defence of honest, even if unreasonable, belief in the need for his or her act; and it forfeits the defence only if the act was grossly disproportionate. There is nothing on the face of the section or in its shoulder-note which manifests an intention to afford the police a novel protection from claims by offenders for objectively unreasonable or unnecessarily violent arrests"." Lord Justice Sedley continued: ""The section nevertheless inexorably covers police officers as well as civilians. Indeed, so far as counsel have been able to tell us, since it was brought into force … it is only police defendants who have invoked it. The consequences should not go unnoticed. In place of the principle painstakingly established in the course of two centuries and more, and fundamental to the civil rights enjoyed by the people of this country—that an arrest must be objectively justified and that no more force may be used in effecting it than is reasonably necessary—the section gives immunity from civil suits, not confined to those involving personal injury, to constables who make arrests on entirely unreasonable grounds, so long as they are not acting in bad faith, and accords them impunity for using all but grossly disproportionate force in so doing"." The Court of Appeal described the particular facts of the case, explaining that the class of injury was so severe that it was, ""associated with head-on car crashes or falls from a significant height. But the claimant had been walking at the moment of arrest, and there is at present no evidence suggesting either that he has brittle bones or that anything happened following his arrest which is capable of explaining the injuries"." Towards the end of the Court of Appeal’s judgment, on the invitation of counsel, it then referred in some detail to what happened in this House. It explained in paragraph 36 how the noble Lord, Lord Hunt of Wirral, had sought to insert in the Bill an original provision as I have described because of concerns about the Tony Martin case by protecting private individuals from lawsuits arising out of their endeavours to confront or apprehend criminals. The Court of Appeal referred to the fact that the noble Lord, Lord Hunt of Wirral, withdrew the amendment when the noble Lord, Lord Filkin, undertook that the Government would table their own amendment, directed to the same end, but clearer and more focused and, as Lord Justice Sedley said, perhaps more relevantly one, ""that does not have any damaging effects on the wider law"." Then the court referred to the noble and learned Baroness, Lady Scotland, introducing her own amendment, and it quotes what she said. Then the Court of Appeal observed that: ""Conspicuously, the minister did not take the opportunity, had this been the intent, to say that the clause was meant to create an absolute bar to any action … Nor did she mention actions against the police. Had she done so, one might have expected considerable constitutional concern about a new defence to assault allegedly committed in the course of an arrest which abandoned the standard of objective reasonableness which the law has historically set for police actions, in favour of a test of subjective belief in a need to commit a trespass to the person, barring only gross overreaction. There might also have been puzzlement why, if such a defence was justified, it was to be confined to the moment of arrest. But an informed observer would have concluded that the ""amendment was concerned with the protection of private individuals who attempt, albeit misguidedly, to intervene when they witness what appears to be a crime"." I make no apology for quoting all of that because it explains why we are not in our beds. It is important when a court draws attention to an anomaly that we take it seriously. Another example is the case of Buike v the Chief Constable of West Yorkshire. Again Section 329 was invoked to prevent an action brought by the claimant alleging that the police encouraged or allowed a dog to continue to bite the claimant longer than necessary to effect arrest, and dragged him for a substantial distance along the road, stamping on and kicking him. The use of Section 329 by the police has led to a mismatch between civil and criminal proceedings. For example, it is a defence to a criminal charge of assaulting a police officer to show that you are protecting yourself against unreasonable force on the part of the police. In that situation, the police cannot argue that although the force was unreasonable it was not grossly excessive. But if the same person tried to sue the police for civil trespass to the person, the police could rely on Section 329 unless their actions were grossly disproportionate. There is no equality of arms and the current position fails to recognise that the police are public officers of the state, not private individuals. They are rightly endowed with special powers, but they have special obligations. There is also a risk that Section 329 as it stands violates the right to physical integrity protected by Article 8 of the European convention and the right in Article 13 to an effective remedy. I will not in detail now explain why that is so. An action taken by an ordinary person to protect or defend themselves or another person from a crime must surely be treated differently from a police officer trained in the use of force. Whereas a police officer must be required objectively to justify her or his actions and use no more force than reasonably necessary, an ordinary person may be given some leeway for an honest and instinctive overreaction, which is what motivated the original amendment of the noble Lord, Lord Hunt of Wirral. Finally, lowering the level of justification for assault in actions against the police, creating a mismatch between civil and criminal proceedings involving the police and potentially violating the convention is not what Parliament intended when agreeing to the clause. I am sure that it is not what was intended by the noble Lord, Lord Hunt of Wirral, when he originally proposed the provision and I do not believe that it was intended by the noble and learned Baroness, Lady Scotland, and the Government either. My amendment would disapply the provision from actions against the police and restore the position that a trespass against the person occurring in the course of an arrest by a police officer must be objectively justified, and that no more force must be used than reasonably necessary. Otherwise, as has happened for centuries, the arrested person must be able to bring a claim for damages. I apologise for taking so long. I beg to move.