Clause 4 - HUNTING: ASSISTANCE
Hunting Bill
8:55 am
Mr James Gray (North Wiltshire, Conservative)
I beg to move amendment No. 5, in
clause 4, page 2, line 18, leave out 'knowingly' and insert 'expressly'.
The amendment may sound a little on the dry side to Labour Members but Opposition Members believe that it is important. It would change the offence of knowingly permitting land to be used for hunting to expressly permitting land to be used for hunting. The amendment is important because it would protect landowners from unjustified prosecution. For an offence to be committed, express permission would have to have been given by the landowner to the people hunting. The usual common law rules on secondary liability would still apply.
Under clause 4 as drafted, it would be a criminal offence for a person knowingly to permit his land to be entered or used in the course or commission of an offence under clause 1. However, there are well-established common law rules concerning secondary parties and it is draconian to go beyond them. Like all trainee barristers, I can do no better than to quote Archbold's ''Criminal Pleading, Evidence and Practice''; a work that is, I am sure, familiar to many Committee members, particular the hon. Member for Wolverhampton, South-West (Rob Marris). Chapter 18 states:
''Someone who aids, abets, counsels or procures the commission of an offence by someone else is guilty of 'the like offence'.
The distinction between joint principals and principals/secondary parties can be hard to draw.
The words 'aid, abet, counsel or procure' should be given their ordinary meaning if possible.''
I am delighted to hear that they should be given their ordinary meaning if possible. To the lawyers, that is apparently an extraordinarily important point. Archbold goes on to make the point that
''Participation by helping in a crime can take many forms, including keeping watch (tacit) encouragement, providing the means (dogs, the use of land, vehicles etc.) It is important to appreciate that voluntary presence at the scene of a crime is a fact from which guilt can (but not necessarily) be inferred.
The mental element is this: an intention to help someone else, realising that . . . that other person might commit the crime.''
The person who may be prosecuted has to intend to help someone else to carry out the crime.
Clause 4 spreads the net wider than the usual principles since it might involve people who—entirely unintentionally—may be allowing the crime to occur on their land. We want to know the purpose of creating the crime in clause 4, and what it is about hunting that justifies a wider net being cast in this case than is normal in the law. That is particularly true because the supporters of clause 4 have apparently decided that the offence is not so serious as to justify imprisonment. Therefore, something that is a less serious offence in the broad scheme of things nonetheless involves people who are unintentionally involved in the offence being criminally liable.
It is not clear what one has to know for the offence to be committed. Let us suppose that a landowner thinks that he is letting people use his land for lawful activities, but it turns out that the activities are
unlawful. We must bear in mind that we are talking about whether people are registered for a particular area or mammal. It might be quite difficult for the landowner to know whether the hunt in question is carrying out a crime on his land.
Clause 4 may make a landowner a criminal for permitting another person to use his land even if, unbeknownst to him, that other person intends to hunt in contravention of the legislation. That seems draconian and quite unnecessary. It goes against the principle of the multi-option Bill that we considered in 2001, which contained the words ''knowingly permits.'' It was clear in that Bill that an owner or occupier would be criminally liable for merely permitting parties on to his land, but only if he knew what they were doing. All criminal offences ought to be clearly defined, and it is not at all clear in the Bill what is meant by ''knowingly''.
Our amendment proposes that the word ''knowingly'' should be removed and replaced by the word ''expressly''. It is not a question of the landowner merely knowing that people are on his land; he must have expressly given them permission to break the law. The amendment is important in the context of English law, and uncontroversial. I hope that both sides will give it a fair wind.