Police Reform and Social Responsibility Bill

My Lords, the purpose of my amendment is to amend Section 329 of the Criminal Justice Act 2003 to exclude civil proceedings against the police for trespass against the person occasioned during an arrest. Section 329 was designed to cover a situation where an individual harms another while that other is attempting to commit a crime against the individual. It was enacted in response to the case of Tony Martin, who shot two intruders to his home who he thought were attempting a burglary. Section 329 provides that the court must give permission for an offender to bring a civil suit for an assault committed at the time and in the circumstances that the offender committed the act for which he was convicted. There was a great deal of public disquiet that a person engaged in burglary should be able to sue the householder who had injured him. Under Section 329 of the Criminal Justice Act 2003, the defendant has a defence to proceedings brought by the injured offender if he believed that the offender was about to commit an offence, was in the course of committing an offence or had committed an offence and that the defendant’s actions were necessary to defend himself or another person, protect or recover property, prevent or stop the offence or catch or secure the conviction of the offender, but only if his action was not grossly disproportionate. In other words, it was designed to protect the householder who reacted instinctively against an intruder into his home and injured that person, so that no suit could lie in the civil courts unless the force used was completely disproportionate. Unfortunately, it appears that only the police have taken advantage of Section 329 when they injure an individual in the course of arresting him. To cite the judgment in Anthony Adorian v Commissioner of Police of the Metropolis—2009, EWCA Civ 18, paragraph 7—the standard historically set for police action and "““painstakingly established in the course of two centuries and more, and fundamental to the civil rights enjoyed by the people of this country””," is that, "““an arrest must be objectively justified and that no more force may be used in effecting it than is reasonably necessary””." When a police officer arrests an individual, he may, in the historic development of the common law, use no more force than is reasonable. That was replaced by Section 329 which requires only that the police do not use ““grossly disproportionate”” force in arresting and that arrests are not in bad faith, even though they may be entirely unreasonable. In the Adorian case, Anthony Adorian suffered injuries in being arrested which were so severe that the force medical examiner concluded that he was unfit to be detained. His class of injury is associated with head-on car crashes or falls from a significant height, but the claimant, Adorian, had been walking at the moment of arrest and, as the judge said in his decision, "““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””." When Section 329 was debated in the course of the passage of the 2003 Act, the noble and learned Baroness, Lady Scotland of Asthal, introducing it, said that it, "““would strengthen the civil law to improve protection for victims of crime against civil claims for damages by offenders””," and that it, "““benefits third parties who are not the direct victim of the offence, but who may have intervened to protect the victim or deter the criminal””.—[Official Report, 11/11/03; cols. 1307-8.]." There was no mention during the introduction of Section 329 in 2003 of the police. Nothing was said about the police. Lord Justice Sedley, giving the judgment in the Adorian case to which I referred, said: "““Conscious of art. IX of the Bill of Rights 1689, we say only that there is no indication that Parliament was aware, much less intended, that what it was enacting would have this effect””." Nobody thought that Section 329 would be used by police who had used unreasonable force in effecting the arrest of an individual. So there is a mismatch between criminal and civil proceedings as far as the police are concerned. 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. That is on the criminal side. But if the same person who had been arrested unreasonably by the police tried to sue them for civil trespass to the person, the police could and do rely on Section 329 and will succeed unless the claimant shows not that their actions were unreasonable—that an unreasonable amount of force had been used—but that that their actions were grossly disproportionate. In other words, a test to be applied for the householder defending himself against intruders has only been utilised, as far as research can pinpoint it, by the police to defend themselves against civil cases. Ordinary people may be given some leeway for honest and instinctive overreaction when they are protecting or defending themselves or another from a crime, but a police officer, who is trained in the use of force, must be required to justify his or her actions objectively and to use no more force in effecting an arrest than is reasonably necessary. It should be a different standard. I was involved in a case in Trinidad, where a police officer who had produced a gun and shot two individuals at a riot at a fête argued provocation. The prosecution in that case said, ““Well, of course, you are a trained police officer. You should not react to unarmed civilians, even if they are threatening you, by producing a gun and shooting them””. Amendment 244A would amend Section 329 to remedy a classic example of unintended consequences and to 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 should be able to bring a claim for damages. The amendment would add a new paragraph (c) to Section 329(1) that would effectively exclude a constable acting in the course of his duty from relying on the test intended for the householder. I beg to move.