Clause 17 - Defences: burden of proof
Tobacco Advertising and Promotion Bill [Lords]
10:30 am
Mr David Wilshire (Spelthorne, Conservative)
I also welcome you to the Chair, Mr. Winterton. The Bill that we are discussing has proved to be both fascinating and instructive. We have made less progress than I had hoped with regard to the Government listening to reasoned argument.
As for making progress, I agree with you, Mr. Winterton, that it is important that a Bill be scrutinised in full from beginning to end. That is why the Government's suggestion that there should be eight sittings struck me as unreasonable. Eight sittings became seven, seven became six, and six ended up as five, and that is why it is proving difficult to make the progress for which some people have wished.
I have always worked on the principle that the role of the Committee is to scrutinise the Bill properly and thoroughly to ensure that we pass sensible and good legislation. If it has taken longer than some people would have liked, the fault lies not with us, but with those who decided that the debate should be truncated and that the issues should be made to fit the time that was deemed to be available, rather than making the time fit the importance of the Bill. I pointed that out during the Programming Sub-Committee and nothing subsequently has made me change my mind.
I am not a lawyer and I always find it difficult to get my mind around provisions such as clause 17, which refer to the workings of the law. When I see that type of clause, I ask myself why it has been included in the Bill. As a layman, I was always brought up to believe that everyone in this country is innocent until proven guilty. It is surprising, therefore, to discover that clause 17(2) appears to state that a person is innocent until proven guilty. I had believed that that was the standard assumption of all courts in this country. When I read that the Bill says what I assume to be true, I become extremely suspicious. It is not simply restating the obvious and has been included for a reason. After 15 years in this place, I have a somewhat suspicious mind, which leads me to think that the provision is intended to water down what would otherwise be an absolute right of all British subjects standing before a court.
Will the Minister say why subsection (2) states
''the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not''?
There must be a reason for it, because as I understand the law, it would not be necessary, unless the Government were trying to alter the status quo when a case is brought before the courts.
I did not interrupt my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) when he was in full flow, but he said that clause 17 appears to make the test evidential, rather than legal. He clearly has a better grasp of such matters than I do. Will the Minister say what the significance of that comment is and whether there is a difference between the evidential and the legal? I always assumed that the court process concerned legal matters. If there is a difference, I should be grateful if the Minister would explain it. If there is a choice to be made between evidential and legal, why have the Government chosen evidential? I have two questions about subsection (2): why does it refer to the burden of proof and why is a choice made about evidence in it?
Subsection (1) makes a key point, too. It says:
''This section applies where a person charged with an offence under this Act relies on a defence under any of sections 5(1) to (6), 6(1), 9(5), 10(3) and (4) and 15(3).''
What about any defence that does not rely upon those clauses? I speak as a layman, but I presume that there might be such defences, either in common law or in statute law when there is spill-over from previous statute laws, as is the case with the Bill. Why should the provision mentioning the burden of proof relate to the defences listed, but not to others? If there is good reason to refer in subsection (2) to evidence that is ''beyond reasonable doubt'', why does that not apply to every defence that could be used in a prosecution under the Bill? A choice must have been made.
I should be grateful if the Minister would consider the issue raised by my hon. Friend—the fact that the provision has been added to the Bill. That means that the Bill as originally published and considered in the other place, was, after discussion, deemed by the Government to be flawed. The Government decided that there was something wrong with the Bill and so they added something to it. It would be helpful to be told what it was that the Government realised was a mistake; why the clause was chosen as the means of solving that problem; and what other routes to solving it were considered before that one was chosen. I hope that the Minister can explain to me, a layman, some of the intricacies of the legal thinking.