Contribution
My Lords, Amendment 403 in this group is in my name.
The group that we are talking about raises the issue whether authorised firearms officers deserve any special protection if they are, or may be, prosecuted for their conduct or if they are convicted. Some would say that they are not so deserving, because it would not be giving equal treatment to all. Others, me included, believe that they most certainly need some additional protection, whether that is a presumption of anonymity, a higher threshold before a prosecution can be brought, a lesser penalty if they are convicted, or a combination of all three.
These are among the bravest people in society. They volunteer for the job so as to protect the public, even though it means exposing themselves to a high risk of death or injury. They are motivated by the highest ideals and deserve special consideration because of it. They are emphatically not in the same position as ordinary members of the public who injure or kill others with a firearm, so I support the statutory presumption of anonymity, which the Government commendably proposed. I also oppose Amendment 393B, which would impose conditions before there can be anonymity.
In fact, I do not think that there is a huge difference between the Government’s Clause 168 and the amendment in the name of the noble Lord, Lord Pannick—whatever number it is. In essence, we are talking about what the default position should be and whether that can be rebutted in the interests of justice, one or either way. The Government have come down in favour of a presumption of anonymity, which is where I come down as well, but I do not think that there is a huge gap.
For me, it goes without saying that the safety of firearms officers and their families is at real risk because of the extensive publicity that such cases attract. Parliament should, therefore, presume that to be the case. However, even anonymity does not avoid the intense stress that such officers, who have put their lives on the line for the rest of us, must endure while waiting for trial, which can, of course, take years, so I agree with the principle behind Amendment 394: that a higher threshold should be set before such a prosecution can take place. Whether this should be as high a threshold as requiring the case to be exceptional before there can be a prosecution is a matter for debate, but I agree that the factors set out in proposed new subsection (5), which would be inserted by Amendment 394—
“the exceptional demands and stresses to which authorised firearms officers are subjected to in the course of their duties, and … the exceptional difficulties of making time-sensitive judgments”—
should always be given particular weight.
Where a prosecution is brought, especially if there is no higher threshold for prosecution, my Amendment 403 is designed to mitigate the penalty imposed if certain conditions are met. I tabled this amendment in Committee. but the debate took place with just 10 Peers in the Chamber at 11.15 at night, so I have brought it back on Report. It is about whether police firearms officers who use excessive force on the spur of the moment in the honest but mistaken belief that the degree of force is reasonable, and who would otherwise be entitled to rely on self-defence, should be found guilty of murder or manslaughter.
Thirty years ago, in the Lee Clegg case, the Judicial Committee of the House of Lords recommended that, in these circumstances, law enforcement officers should not be treated the same as terrorists and other murderers if they use excessive force; and that they should be convicted of manslaughter, not murder. I find that a statement of the obvious. Quoting the Court of Appeal, Lord Lloyd of Berwick said:
“There is one obvious and striking difference between Private Clegg and other persons found guilty of murder. The great majority of persons found guilty of murder, whether they are terrorist or domestic murders, kill from an evil and wicked motive. But when Private Clegg set out on patrol on the night of 30 September 1990 he did so to assist in the maintenance of law and order and we have no doubt that as he commenced the patrol he had no intention of unlawfully killing or wounding anyone. However, he was suddenly faced with a car driving through an army checkpoint and, being armed with a high velocity rifle to enable him to combat the threat of terrorism, he decided to fire the … shot from his rifle in circumstances which cannot be justified … we consider that a law which would permit a conviction for manslaughter would reflect more clearly the nature of the offence which he had committed”.
However, Lord Lloyd ruled that it was inappropriate for the courts to change the law and that it was for Parliament to do so. Here we are, 30 years on, with that opportunity.
In rejecting my amendment in Committee, the noble Baroness the Minister said that it would
“create a two-tier justice system where police officers who kill or injure in the course of their duties are judged by a more lenient standard than applies to the rest of the population”.
But is treating police firearms officers differently from other murderers a two-tier justice system? Surely not. We are not treating like with like. Police firearms officers who go on duty, risking their lives to protect us all and, in the words of the Minister, are
“having to make life and death decisions in an instant”.—[Official Report, 20/1/26; col. 266.]
are emphatically in a different category from those who kill with an evil motive. The law should therefore treat them differently.