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I shall confine my remarks to amendment No. 99, with which I disagree. However, I am grateful to Mr. Heath for his concession about the difficulty that would be faced by prosecution authorities when trying to prove by whom, how, when and where a document was destroyed. That is the degree of detail that is usually required when framing a criminal indictment and the hon. Gentleman readily conceded that it would be extremely difficult to prove it beyond reasonable doubt. That is the test, which is why the offence is framed as it is—a point that he seemed to accept.
However, on the question of the burden of proof in a reasonable excuse, are we not in exactly the same position? The only person who knows how the document came to be destroyed, or why it does not exist, is the person who does not have their document with them when they arrive. How is the prosecution to disprove it if the person says, "My passport fell overboard when I was moving from a big ship to a small boat somewhere just off the coast of Malaysia"? A person has only to say that and the amendment would then impose on the Crown the necessity to disprove beyond reasonable doubt that such an event had occurred, which would be quite impossible. As the hon. Gentleman has already conceded, that same impossibility shows the wisdom of the current framing of the offence.
All that is required is that the person with the unique knowledge of what happened must show that it is more probable than not that he is telling the truth. That seems a reasonable way to evaluate something that, in 90 per cent. of cases, only that person can possibly know about. The tribunal will say, "That's probably true", in which case the person has passed the test. That test is not mighty or difficult, but perfectly reasonable. It certainly is not, as Annabelle Ewing said, a constitutional principle that in each and every criminal case the prosecution must prove every element beyond reasonable doubt, and that the only requirement for the defendant is to raise a defence, which must always be disproved.
There are innumerable cases in licensing, for example, or involving other kinds of permit, when it is uniquely in the person's knowledge whether they have a reasonable excuse for not holding the required document. Sometimes, people just have to declare their excuse, while under other legislation they have to discharge the burden of showing that it is probably true. There is no constitutional principle here.
I point in particular to the fact that the defence of diminished responsibility for murder relies on the defendant showing on the balance of probabilities that what he says about his state of mind at the time is true. I respectfully say that no constitutional principle is being undermined, and the amendment is wholly impractical.