2004.004 'Home Defence - The Tony
Martin Bill - II' 168 JP 374, 15 May 2004
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Home Defence: The Tony Martin
Bill - II
FRANCIS BENNION
The House of Commons Debate
Mr Roger Gale’s Bill, titled
the Criminal Justice (Justifiable Conduct) Bill, was debated in
the House of Commons on Friday 30 April 2004. This was a second
reading debate. The Bill is a private Member’s Bill, that
is one promoted by back-benchers not holding Government office.
On certain Fridays, of which this was one, Standing Order 14 provides
for private Members’ Bills to have precedence over Government
business.
Mr Gale’s Bill was subject
to a timetable. If a vote on whether to give it a second reading
was not taken within the time allotted, it would be treated as
“talked out”. Effectively, that would be the end of
it.
Mr Gale’s Speech
Moving that the Bill be now read
a Second time, Mr Gale started by dealing with its pedigree. He
quoted from The Times of 2 January 2004:
“It began as a quirky
idea to pad out the Today programme over the quiet Christmas holiday
period: ask listeners to nominate a change in the law and then
vote for it. Stephen Pound, a pliant Labour MP with an appetite
for publicity, stood by ready to introduce a Bill in the Commons.
By yesterday morning, however, the Radio 4 programme had a potential
disaster on its hands. The winning Bill, it announced, would allow
homeowners to use any means to defend their property. Any means?
Not reasonable force, as the law currently allows? Using deadly
force? Shooting people? Apparently so.”
The “Today” programme,
Mr Gale continued, had auditioned its listeners to come forward
with ideas for legislation. The “Today” editorial
team of which he was a minor member some years ago would probably
have listened to the suggestion of a no doubt bright, able and
creative researcher, congratulated the author of the concept on
a most valuable contribution to broadcasting, then put the matter
quietly on the spike. The current team appeared to be rather different.
The wheels were set in motion and there was an awful predictability
about the outcome. Having taken the “Pop Idol” approach
to politics, Radio Four trailed the fact with the words, “Our
friendly MP is going to introduce your Bill.” In The
Times on 2 January, said Mr Gale, Simon Jenkins wrote:
“Where would we be without
the BBC? Not content with usurping the scrutiny function of the
House of Commons, it now purports to legislate. Yesterday, it
presented Parliament with a Bill to allow homeowners to shoot
all burglars on sight. This was justified by something called
a ‘listeners’ poll’ which a tame Labour MP .
. . had agreed to present to the House of Commons, sight unseen.”
Mr Gale took the matter of this process
up with the editor of the “Today” programme, Kevin
Marsh. Mr Marsh
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took exception to his criticism
and wrote to him to say that the BBC were working on drafting
a piece of legislation. Mr Gale said it was not the business of
the public service broadcaster of this country to engage in the
drafting of a piece of legislation.
Tens of thousands of listeners apparently
voted for this subject. Mr Gale said that the reaction of the
BBC’s production team was predictable - sheer horror. The
friendly MP regarded the subject as too reactionary, and the listeners’
law hit the buffers. The BBC, went on Mr Gale, made a profound
mistake. He and his colleagues presenting the Bill decided that
they “would have a go at wiping a little of the egg off
Auntie’s face”. But, said Mr Gale, this was not, as
it had been described in shorthand terms by the popular press,
the Tony Martin Bill, any more than it was the listeners’
law.
“What my friends and
I have done is to seek to construct an amendment to the criminal
justice legislation that reflects the concerns of the people.
Our approach is not a knee-jerk reaction to one hard case out
of which we are seeking to extrapolate bad law, because hard cases
do make bad law. We are seeking to address the underlying perception
that the criminal justice system has moved towards the criminal
as the victim and away from the interests of the real victim of
the crime - in this case, the householder, be that person tenant
or house owner.”
Mr Gale said he defied any Member
of the House who was in touch with their constituents to say,
hand on heart, that people do not feel that these days the criminal
gets a much better deal than the real victim of the crime. There
was a perception that one’s home is no longer one’s
castle. He went on:
“In fact, in some circumstances
even the law is not ready to say that one’s home is one’s
castle. I was interested to hear the honourable Member for Corby
(Phil Hope) recall at the tail-end of the previous debate how
he and his wife had been burgled. Their home was ransacked and
violated, and those of us to whom that has happened - again, sadly,
that is probably most of us - know how dirty and genuinely violated
that makes one feel. The police told him that in some way he was
culpable because he had not locked his house up securely enough.
He felt compelled to visit the hardware shop to buy new locks
and new catches for his windows; and he fitted them to make his
home more secure. I am not for one moment suggesting that it is
not the duty of householders to seek to ensure the security of
their property. The days when people living in a village could
leave the back door and the front door open all day and probably
all night are long gone. However, the suggestion that it is the
fault of the householder when someone breaks in tells me that
the world has largely gone mad.”
Mr Gale said that this was not, as
the press had sought to describe it, a Bill to allow anyone to
shoot a burglar.
“Let me put before the
House the case not of Tony Martin, but of Robin Baker-White, a
former high sheriff of Kent. He has had intruders on his property
a number of times, and he and his wife have felt violated by having
their possessions stolen. On one occasion - he has a licensed
shotgun - he fired over the heads of the people retreating from
his home with his goods, but the police confiscated his gun. This
Bill is not about blasting to eternity with the family blunderbuss
the 12-year-old who kicks a football into a garden and climbs
over the fence to retrieve it. It is about sending a message to
the courts, to the judicial system and to the criminal fraternity
that now goes out armed - as an aside, since the abolition of
capital punishment for murder - as a matter of course. Nowadays
if there is any redress, it tends to be on the side of the criminal
rather than the householder.”
I hope I may be forgiven for quoting
Mr Gale’s next words:
“If the Bill’s
pedigree could be described as part thoroughbred and part mongrel,
its provenance is sound. It was drafted by an expert parliamentary
draftsman. Members on both sides of the House may quarrel with
some of the content, but I defy them to say that the Bill is technically
unsound. Sadly, that cannot be said of some private Members’
Bills. For that we owe a great debt of gratitude to the draftsman,
Francis Bennion.”
In his speech Mr Gale went on to
describe the provisions of the Bill in detail, and here I need
not repeat what was said in Part I of this article. Mr Gale concluded
his speech with these words:
“I should like to think
that this House will allow the Bill to receive its Second Reading
unopposed and that it will let us do our job in Committee to address
the concerns of honourable Members on both sides of the House.
If we fail to satisfy their legitimate demands, there will be
future opportunities on Third Reading or Report to kill the Bill.
But to do so now would be a slap in the face of a very concerned
British public.”
Mr Stephen Pound’s “Rant”
In what was described by a later
speaker, Mr Eric Forth MP, as a “rant” the MP who
had originally agreed to present the BBC’s “listener’s
Bill”, Mr Stephen Pound MP (Labour) attacked Mr Gale’s
Bill. He said it was tainted by its inevitable association with
Tony Martin, who had killed Fred Barras by shooting him in the
back. Said Mr Pound:
“We have talked about
Tony Martin and the law. We have not talked about Fred Barras.
He was 16 when he was shot in the back with an illegally held
pump-action shotgun. He died without the last rites, with his
back to his murderer. He will always be 16 because he will never
see another birthday. Do we think, for all the sins of Fred Barras,
for all the crimes that he committed, that that boy was so beyond
redemption, was so incapable of being saved, of ever turning over
a new leaf and
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becoming a responsible member
of society, that he deserved the fate that he met in that lonely
farm house in Norfolk in the middle of the night, as he turned
to flee and a second blast of the shotgun caught him in the back
and ended his life there and then, where he died lonely, without
benefit of the clergy? Do we honestly believe that any 16-year-old
cannot be redeemed? Do we believe that the whole criminal justice
system of this country is so mired in failure that no person can
ever, ever take another path in life? Do we believe that at the
age of 16, one has cast one’s life so much in stone that
one will never, ever see another way of living? In the case of
Fred Barras that, sadly, will never be known. Fred Barras is dead.
Fred Barras was killed by a man who served a few years in prison
and became a national hero for it. Fred Barras was killed by a
man who influences debate and discussion not just in the House,
but throughout the country to this day and will continue to do
so. Those people who wish to prop up a political career with the
bones of a 16-year-old boy are nothing but despicable. I mean
nobody in the House today when I say that. We may talk about such
marvellous concepts as an English person’s home being his
or her castle - yes, theoretically, let us do so - but let us
never forget that behind the theory, behind the parliamentary
draftsmanship, behind the fine words, we can still see the dead
body of a 16-year-old boy. As far as I am concerned, nothing can
ever justify that.”
Here Mr Edward Leigh MP (Conservative)
protested:
“The honourable Gentleman
. . . is wrong to try to defeat the arguments by constantly referring
to Mr Martin. If he reads the Bill carefully, he will see, as
I do as a lawyer, that it would not have protected Mr Martin,
because it makes it clear that one has to be acting in self-defence
or in defence of one’s property, and the intruder was running
away at the time.”
Other Speakers
One of the sponsors of the Gale Bill,
Mr Eric Forth MP (Conservative), dealt with a suggestion that,
if we had a sufficient number of police officers, little old ladies
would feel secure in their houses. Sadly, he did not think that
that could ever be so. The Conservative Party has a policy of
employing 40,000 more police officers. Even were they to implement
that policy, he said, it would not necessarily give householders
the security that we want to give them. It might go some way in
that direction, but he did not see that any number of police officers
would necessarily give people a sense of security in their homes.
Something else must therefore be done.
“We must make a distinction
between the unease that people may feel on the street and the
phenomenon of social misbehaviour and related issues, which the
Government, in fairness, are trying to tackle . . . and what we
are talking about now. We are talking about people in a dwelling
in which they should feel secure, and someone entering that dwelling,
either in pursuit of burglary or something worse, such as assault
on a person . . . What we are saying is that the presumption should
be that the person in the dwelling is entitled to security, protection
and, if necessary, self-protection, and that the person who enters
the dwelling is doing something that is illegal and wicked.”
Dr Nick Palmer (Labour) mentioned
the case of a pub landlord, physically a very powerful man, who
felt unable to prevent a group of youths from taking away a case
of champagne because they said to him, “If you lay a finger
on us, we’ll have you for assault.” The landlord felt
unsure about whether it would be proportionate if he prevented
them from taking away his property and did not know what he could
or could not do. While he was thinking about it, they disappeared
up the road. Dr Palmer added that many people feel that such examples
are all too common. “People are not sure where they stand,
so they feel that they have to err on the side of caution in case
they are prosecuted”.
However Dr Palmer opposed the Bill.
Construing it, it is submitted mistakenly, he said:
“I am reminded of the
doomed presidential candidacy of Michael Dukakis. He was against
the death penalty, and when he was asked whether he would want
to shoot someone who attacked his wife, he replied, ‘Yeah,
I would, but I don’t think my instinctive reaction should
be the basis for law.’ That was an honourable reply; it
might not have done him much good politically, but it was correct
none the less. As [Mr Gale] said, we should base the law neither
on hard cases nor on extreme emotions. However, the Bill would
legalise unreasonable conduct on the part of constituents who
unreasonably believe themselves to be threatened. It is a licence
for madmen, and we should not pass it.”
Another sponsor of the Bill, Mr Richard
Bacon (Conservative) said that in Dickleburgh in his rural constituency
a store was ram raided in the middle of the night. The person
who rented the flat above it alerted the police, because he could
hear what was going on, but he was told by the police not to go
downstairs and intervene in case he came under threat. However,
one reason that caused that person not to intervene was fear that
if he were to do so, he would be the one to be had up. Mr Bacon
added: “We need a shift in the presumption away from the
burglar or law-breaker and towards the householder. There should
be a strong presumption against prosecuting any occupant who injures
an assailant in some way while resisting the intrusion into his
or her home.” He ended that he had no doubt that the Bill
could be improved, adding:. “The place to do that is in
Committee, and I very much hope that the House will give the Bill
a chance to be considered there in more detail”.
Government Reply
The Government reply to the debate
was given by the Parliamentary Under-Secretary of State for the
Home Department Ms Fiona Mactaggart MP. She said that the Government
had issued a booklet entitled “Be Safe, Be
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Secure”, which is
a practical guide to crime prevention. It was updated last year
and covers all aspects of personal safety at home, including how
to deal with intruders. It covers the law of self-defence, including
the underlying principles, and it is available from crime reduction
officers and neighbourhood watch schemes and on the internet.
The Minister said that clause 3 (civil liability) of the bill
was unnecessary because Parliament had made amendments to the
Criminal Justice Act 2003, which came into force on 20 January
2004, to ensure that householders and other victims of crime are
not subjected to unjustified claims for damages where they have
acted reasonably and proportionately in self-defence against a
perceived or actual threat. That means that any claim can proceed
only in strictly defined circumstances with the express permission
of the court, and would not succeed unless the court was satisfied
that the householder’s actions had been grossly disproportionate.
In addition, the Lord Chancellor has directed the Legal Services
Commission to consult on tightening up the rules to ensure that
offenders would not be entitled to legal aid to pursue their victims
in such circumstances.
The Minister said the Bill would
give complete impunity to unreasonable householders who mistreated
harmless trespassers or even a child who entered a garden to recover
a ball. She said:
“It goes too far. The
law already enables people to act reasonably in self-defence,
or in defence of their property. However, such a provision . .
.”
Hansard then records:
It being half-past Two o’clock, the debate stood adjourned.
