Clause 17 - Defences: burden of proof
Tobacco Advertising and Promotion Bill [Lords]
10:30 am
Mr Tim Loughton (East Worthing and Shoreham, Conservative)
I will kick off this morning's proceedings by welcoming you to the Chair, Mr. Winterton and to the later stages of the Bill. I echo your comments that we should make positive, constructive progress. The Opposition have wanted to do so for the past three sittings. You will notice that, although we are about to debate clause 17, we shall then revert to clause 6. I fear therefore that we have made positive, constructive progress on only five clauses out of 22, which reinforces what the Opposition said at the outset: that our proceedings in Committee have been curtailed too severely.
The Minister promised to consider various clauses that we shall revisit on Report and that emphasises the fact that there are still parts of the Bill with which many people are unhappy and that require far greater scrutiny. Otherwise, it will see its next airing in the courts—something that we should avoid. We must make the Bill as explicit as possible.
It would be useful to receive clarification from the Minister on clause 17. It is a later clause and was added to the Bill at the same time as the amendments to clause 5 were tabled. It deals with the burden of proof on defences. I am slightly mystified why we have to reinforce what I have always understood to be the basis of English law: that someone is innocent until proven guilty. All that the clause does is to restate the natural processes of law. We have often urged the hon. Lady to be more explicit, thus avoiding any possible misinterpretations of the Bill, but we are always told that it is self-evident. I wonder why the additional clause—welcome, though it was to many—was deemed to be necessary, repeating as it does the natural processes of the English legal system. It removes the need for the defendant to prove that he was acting reasonably, thus creating an evidential rather than a legal burden on the defence.
Subsection 2 is drafted in pretty poor English. Subsection (1) just about gets away with it, by referring to the long list of previous clauses. But the words,
''Where evidence is adduced which is sufficient to raise an issue with respect to that defence, the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not'',
do not read well. The clause does not trip off the lips as easily as other parts of the Bill. It is a late addition and an example of how not to use the English language.
I will not detain the Committee with detailed, reworded amendments, but I wonder if the Government could improve the wording of the clause. We welcome the clause, but we would particularly welcome some additional explanations from the Minister as to why it was necessary to include a provision that appears to be self-evident.