Ms Yvette Cooper (Parliamentary Secretary (Public Health), Department of Health; Pontefract & Castleford, Labour)

I also welcome you to the Committee, Mr. Winterton.

The clause was introduced in the other place; it was not part of the Bill that we discussed a year ago in Committee. It is about the burden of proof when the defendant has a defence. As we have said many times, we have structured the Bill by setting out an offence—the promotion of a tobacco product through a tobacco advertisement—and then setting out the defences

against it. The prosecution must prove that offence beyond reasonable doubt. The issue is who has the burden of proof for defences.

Someone who distributes or publishes a tobacco advertisement might believe that they have a defence. For example, they might not have known or have had no reason to suspect that the tobacco advertisement would be published in the United Kingdom. The clause sets out clearly where the burden of proof lies in the case of such defences; it lies with the prosecution, who will have to prove, first, that the defendant committed an offence by publishing or distributing a tobacco advertisement and, secondly, that the defendant's defence does not stand up.

The reason for subsection (2) is that the defendant has to produce some evidence

''to raise an issue with respect to that defence''.

In other words, the defendant must produce some credible evidence to support their defence. If the evidence

''is sufficient to raise an issue'',

the prosecution has the burden of satisfying the court or jury on the matter beyond reasonable doubt in the ordinary way.

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