I try not to be too political in this blog because it has someone else’s name on it and they don’t necessarily want to be associated with my lefty government bashing. That said, sometimes it’s quite difficult to avoid getting down and dirty.
I’ve just had a week’s holiday. It was planned ages ago, but could equally have been intended as a chance to recover from the party conference season. As per usual, they were rather all fur coat and no knickers, with little in the way of concrete policy announcements to unpick and welcome or deride.
But the Tories did manage a few that were loud, brash and so cocksure of themselves they were hard to miss, like the first big announcement from the new Justice Secretary, Chris Grayling. Grayling is not a lawyer, indeed, he is the first such ‘lay person’ to hold the post of Lord Chancellor. This is not meant as a criticism per se; I’m not a lawyer either and I think there is room for more of us in the rarefied world of the law.
On the other hand, if you are going to start mucking about with the actual wording of laws it’s probably best to consult the odd lawyer or two who will, hopefully, be able to decipher it all and explain why some things are left, at least as far as a lay person is concerned, deliberately vague. Such as the law on self defence.
It’s safe to say that Grayling’s announcement that he intends to let householders use ‘disproportionate’ force defending their homes and families is a vote grabber rather than a considered attempt to deal with a legal problem. In fact, quite a few people, including the Lord Chief Justice, the chair of the Criminal Bar Association and the chair of the Law Society’s criminal committee don’t think there is a legal problem.
Most of them believe the law has been clear for many years. Even so it was made even clearer in 2008 and, unbelievably, clearer still as a result of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. After all that, it should be clear enough for even Chris Grayling to see through it.
Apparently not. Grayling wants householders to be able to use not just ‘reasonable’ force in dealing with intruders, a definition which, incidentally, allows for homeowners being angry and frightened and probably not in a state of mind to exercise ‘calm cool judgement’, but ‘disproportionate force’.
He explained that ‘grossly disproportionate force’ would not be permitted: stabbing a burglar who was already knocked unconscious would still be a crime. Presumably that means it would be ok to stab him if he was still awake but had twisted his ankle as you pushed him down the stairs?
I don’t think I am alone in feeling extremely uneasy about the idea of allowing anyone to use disproportionate force. As well as tipping the balance away from protecting actions of self defence towards sanctioning acts of vengeance, it is in danger of turning people who are already victims into perpetrators. It may also encourage more burglars to carry guns.
Perhaps this wouldn’t be so bad if homeowners up and down the land were crying out that they need more protection from the law. In the first place, most of us know that it doesn’t really matter what the law says because the instant someone with a balaclava bursts through your bedroom door, drags you out of bed and threatens you with violence unless you do what he says you’ll just use whatever force, or not, seems necessary at the time.
Secondly, there have only been 11 prosecutions for people tackling intruders in any premises (seven involving homes) between 1990 and 2005. The reason the number is so small is not because, sadly, there aren’t more burglaries but because, under the existing law, the Crown Prosecution Service can take a reasonable approach when it comes to incidents involving self defence.
So what we have here is a solution in search of a problem. More worryingly, and even allowing for the need to play to the party faithful during party conferences, it seems as if the Justice Secretary is allowing pet projects to take priority over the significant challenges facing the justice system. The legal aid cuts and reforms to civil costs may be a done deal, but making sure they don’t undermine access to justice has to remain a concern.
There is also the not inconsiderable issue of the Justice & Security Bill, which even a number of Grayling's Tory colleagues have concerns about. This proposes to extend controversial secret courts to the ordinary civil law and put the security services (and potentially other public bodies) above the law in civil actions involving wrongdoing by the UK government and third parties.
Then there is his pledge to increase the number of prison places, reform community sentences, improve offender rehabilitation and reform human rights laws and having to deal with the thorny issue of a European Court ruling demanding prisoners should be given the vote.
I’m not suggesting he and his department can’t multi-task, but putting at the top of this list reforming a law that doesn’t need reforming is as irresponsible as it is headline grabbing. Party conferences have a lot to answer for.