Clause 6 - No-smoking signs
Health Bill
12:30 pm
Caroline Flint (Parliamentary Under-Secretary, Department of Health; Don Valley, Labour)
As has been said, subsection (6) sets out the defences available when a person is accused of not complying with a requirement to display no- smoking signs in smoke-free premises, additional smoke-free places under clause 4 and smoke-free vehicles. When there is an offence we clearly have to be mindful of a person’s opportunity to have a defence. We have discussed the clause with our legal advisers and the Home Office with regard to these offences, which include a person not knowing or not being reasonably expected to know that he or she was not complying with the requirements set out in regulations. Ireland has gone for a total ban and there have been very few prosecutions, which is encouraging from the outset. I am hopeful that the same will apply in England. That said, we need to have some offences to cover breaches of the law. We need to engage with that in relation to the risk consequences and what the defence will be.
Amendment No. 49 would change the defence to having taken
“all reasonable precautions and exercised all due diligence”.
Lawyers have advised me—I am not a lawyer—that that could allow a slightly broader range of defences, or, in other words, make it a little easier to defend oneself against prosecution for the offence. However, I suppose that one can speak to lots of different lawyers and they will supply lots of different viewpoints. In reality, the difference is small. Subsection (6)(c) already provides a general defence that on other grounds it was reasonable for a person not to comply.
We decided on the defences in subsection (6) to ensure that defences were available if a person genuinely did not know that he was not complying with the requirements. I am sure that we can think of different scenarios. Someone who worked in an establishment might not have been informed that they should check the notices every day. A defence could be that a notice had fallen down but the person was not aware of it. However, the prosecution could then look at the notice and say, “Well, even though it did fall down, it did not comply with the regulations,” so there would be a defence for one aspect but not the other. We want to ensure the greatest possible chance of a successful prosecution where an offence has been committed. I feel satisfied that the subsection achieves that aim so I am not persuaded of the case for revising the defences.
Subsection (7) specifies that the prosecution must prove beyond reasonable doubt whether an offence has been committed under clause 6 where a person provides evidence to support a defence. My understanding is that that is in line with offences under other health legislation. If the hon. Member for Northavon is interested, I would be pleased to give him examples of those areas, but I have not got them to hand at the moment. That was one of the issues in applying the clause in this way.
Amendment No. 50 would remove subsection (7). That would make it less clear what burden of proof the prosecution had to discharge. It is important for everyone’s sake that that is made plain in the Bill. If the case is not proved beyond reasonable doubt, all the defendant has to do is give some evidence. He does not have to prove the evidence. The provisions are fit for purpose, but, as I have said before, I hope that prosecutions of this kind will be few and far between, based on the success in other countries and presumably in other jurisdictions of the UK.