Don Foster (Shadow Secretary of State for Culture, Media & Sport, Culture, Media & Sport; Bath, Liberal Democrat)

I beg to move amendment No. 16, in page 14, line 3, leave out subsection (2).

We are back to advertising. Subsection (2) contradicts the concept that everyone in this country and certainly our courts hold dear: the principle of innocence until proven guilty. The Government seem to be willing to sacrifice that long-standing principle in respect of advertising and replace it with the presumption of guilt. I am certainly not suggesting that the general aim of clause 19 is misguided.   Notwithstanding my worry about what the regulations might cover, it should be an offence to contravene any of the advertising regulations under clause 17. When they are agreed by Parliament in due course, clearly, such activity should be an offence. I am as committed as anyone to stopping inappropriate advertising and to ensuring that we can fulfil the guarantees made to the IOC about it, but I genuinely find it hard to believe that it is imperative when achieving such results to overturn the usual procedure of innocence until proven guilty to what seems to be a dangerous presumption of guilt.

I raised the issue in advance of our deliberations with the Department, LOCOG and many other organisations. They have tried to help me and have explained why the matter is important, but so far I am not with them. I hope that the Minister’s help will be more effective than that which I have received so far. I wish to give him the opportunity to clarify why such a measure is necessary. However, I want first to remind him that he made it clear in the explanatory notes that accompany the Bill that the Secretary of State considers that the clause is compatible with the European convention on human rights. Paragraph 110 of the explanatory notes argues that clauses 19 is

“consistent with the presumption of innocence particularly as the matters subject to the reverse burden are matters within the knowledge of the defendant and which would be difficult for the prosecution to prove.”

That advice is meant to be part of an explanatory note. It says that, when we have the reversal of the usual approach to presumption of innocence, we do not have it. It then goes on to explain the reason for that, as a result of which I become completely lost.

We seem to be reversing the long-held belief of innocence until proven guilty. The explanatory notes say that such action is not being taken, but clearly it is. I have not the foggiest notion why that should be so. I could quote several examples from certain organisations, but I thought that it would be better to hear what the Minister has to say first, after which I might come back with a few comments about what others think about the proposal.

Maria Miller (Basingstoke, Conservative)

The Opposition share the concerns of the hon. Member for Bath about clause 19. While it is true that there are other areas of law when there is an automatic presumption of guilt, most notably in money laundering regulations, it is entirely disproportionate that there should be a presumption of guilt about people who find themselves, perhaps even inadvertently, in breach of clause 17. Given our earlier discussions and the broadness and vagueness of some of the notions that were talked about, several people could fall into that category.

In addition to the worries that were expressed by the hon. Gentleman about clause 19(2), we believe that it would not be good to normalise further the use of presumption of guilt under English common law. In our view, the inclusion of presumption of guilt in legislation should be used as infrequently as possible.   I am interested to hear from the Minister why it is considered necessary to reverse the burden of proof in this instance.

I noticed in the handout that the Minister kindly gave to Committee members this morning that the IOC technical manual shows that it may cover the issue, although not in a great amount of detail. I urge the Minister to realise that the IOC is used to working with many different countries with strong principles regarding the issue, which are enshrined in their legislation. Perhaps we should not be too ready to give way on this issue, which is important and a matter of principle for us.

Richard Caborn (Minister of State (Sport), Department for Culture, Media & Sport; Sheffield Central, Labour)

I will try to explain why we have included this provision in the Bill. Amendment No. 16 would remove the reverse burden of proof in relation to criminal offences that we have created under our new regime for controlling advertising in and around the Olympic venues. I understand the spirit in which the amendment is tabled, but it is appropriate, and indeed proportionate, that the burden of proof falls on the defendant in this case.

Subsection (2) provides a crucial defence for anyone charged with an offence under an advertising regime. Those defences are right and proper and must remain. The burden of proof is on the defendant because the subject matter of the defence is so closely conditioned by the defendant’s own knowledge. We feel that it is more appropriate for the burden to fall on the defendant. Our approach is consistent with the case of Sheldrake v. DPP, which essentially sets the bounds of acceptability in relation to reverse burdens of proof. Our approach also closely follows the type of defence available under section 224 of the Town and Country Planning Act, which provides an offence in breach of advertising restrictions imposed under the Act. In this specific case, we believe that there is an argument for reversing that burden of proof because of the knowledge of the individual.

Don Foster (Shadow Secretary of State for Culture, Media & Sport, Culture, Media & Sport; Bath, Liberal Democrat)

I am grateful to the Minister. I fundamentally disagree with him, but the Government are entitled to their view. We are talking about fines that will be greater than those usually applied by magistrates and a possible criminal record. Clearly, the full force should be applied to those who intend to commit such crime, but the provision could place a huge burden on many small businesses that may inadvertently do things with no intention to create a connection. Nevertheless, I accept that the Minister feels strongly about the issue. Therefore, I ask him to explain paragraph 110 of the explanatory notes, where it says:

“Clause 19 places a ‘reverse burden’ of proof on the defendant to prove that they did not know that they were committing an offence in relation to the advertising regulations, or took all reasonable steps to avoid doing so.”

It is difficult to see how that could be done in some circumstances. It continues:

“This is consistent with the presumption of innocence, particularly as the matters subject to the reverse burden are matters within the knowledge of the defendant and which would be difficult for the prosecution to prove.”

Would the Minister explain to me the phrase

“This is consistent with the presumption of innocence”?

How can there be a “reverse burden” in the first sentence that is consistent with the presumption of innocence in the second? Will he at least acknowledge that there is an error in the explanatory notes, or is there some other way of explaining two mutually incompatible phrases?

Richard Caborn (Minister of State (Sport), Department for Culture, Media & Sport; Sheffield Central, Labour)

If the hon. Gentleman reflects on the examples of already existing case law and the Town and Country Planning Act, he will find that they are consistent with the explanatory notes. I accept what the hon. Gentleman says about the application of the law in general, but we are talking about a specific area. I can reassure him with some justification on the basis of what has happened during previous Olympic games. If we found an innocent person in a shop somewhere acting in a way contradictory to the provisions and their case was genuine, no court in this land would prosecute them. Actions would be taken, but not by prosecution. We would ask them to stop the activity.

We are considering a relatively short time—the run-up to the Olympic games—and seeking to protect those who are investing huge amounts of money. This is not about changing case law; we are basing our planning on what happens now. We must apply some common sense. I cannot believe that we shall haul before the courts a little old lady who has a shop somewhere because she has used some words that are out of synch with what we are saying. It is ludicrous to think that. This measure is not about that sort of thing; it is aimed at those who want commercially to exploit the 2012 Olympic games. We know what happens at major sporting events—we shall come to ticket touting in a while. We are concerned with catching people who want to make a fast buck out of 2012, not those who advertise legitimately, who exploit the games in the right way, and from whom we receive benefit. That is the situation that we are seeking to protect; we are not going after the little granny who owns the sweet shop at the bottom of the road, in order to haul her before the courts. That would be crazy.

Don Foster (Shadow Secretary of State for Culture, Media & Sport, Culture, Media & Sport; Bath, Liberal Democrat)

I am inordinately grateful. Once the Minister gets passionate—we all love to hear him—he puts on record words that are enormously important for the future. Lots of grannies up and down the land will be very grateful to know what he has just said, and for the protection that he has just offered them. I will leave the matter there, but I should like the Minister to reflect on why I still have cause for concern, notwithstanding anything that he has said.

I understand the Minister’s motivation, but what he has said could equally apply to almost any other offence in the lexicon of the laws of this land. It is not our intention to prosecute somebody who did not do anything. However, we should consider paragraph 110 of the explanatory notes, which specifically says:

“This is consistent with the presumption of innocence, particularly as the matters subject to the reverse burden are matters within the knowledge of the defendant and which would be difficult for the prosecution to prove.”

The point is that we are proposing a reverse burden approach because it will be difficult for the prosecution to prove anything. We could have that argument about any law. One is guilty until one is proved innocent. That is not the way that I think it should be, and I still have not heard a convincing reason from the Minister. He could use the argument that he has used here in relation to any case, so I hope that we will have an opportunity to come back to the matter at a later stage. I beg to ask leave to withdraw the amendment.