With this it will be convenient to take the following amendments: No. 33, in page 24, line 27, leave out `an' and insert `a controlling'.
No. 34, in page 24, line 28, at beginning insert `directly'.
The amendments deal with paragraph 2, which sets out the offence that would be committed by someone who knowingly permitted land belonging to him
``to be entered or used in the course of the commission of'' a primary offence, that of hunting a wild animal with a dog, as laid out in paragraph 1. As members of the Committee know, to understand paragraph 2, one has to look at it alongside paragraph 22, which attempts a definition of ``belonging'' in the context of the new offence outlined in paragraph 2.
The amendments address paragraph 2 in slightly different ways. Amendment No. 37 would remove it altogether. Amendment No. 33 would alter paragraph 22(a), so that the reference to land belonging to a person would apply, not as currently stated,
(a) owns an interest in it,''
but if he owns a ``controlling'' interest in that land.
Amendment No. 34 would also apply to paragraph 22. It would amend sub-paragraph (b), which states:
``For the purposes of this Schedule land belongs to a person if he—...
(b) manages or controls it.
Amendment No. 34 would alter the phrasing to refer to someone who ``directly'' manages or controls it.
I want to use the amendments to explore some of the reasoning behind the schedule and to probe how the Government see the new offence operating in practice.
My first question is why paragraph 2 is necessary. I am not a lawyer. [HON. MEMBERS: ``Hear, hear.''] That is the first cheer that I have had from Labour Members during our proceedings. The Minister seems to be slightly outnumbered in the lawyers' trade union today. In a previous Standing Committee on which I served, his hon. Friend the Minister of State, Home Office, the Member for Norwich, South (Mr. Clarke) took great pride in making it clear that he was not—and never had been in his entire career—a lawyer.
It may be that I have not understood a particular point; if so, the Minister will be able to advise me. However, my understanding is that, under common law, somebody who aids, abets, counsels or procures the commission of an offence is guilty of that offence as much as if he had been directly involved in its commission. If that understanding is correct, assisting somebody to commit the offence outlined in paragraph 1 might involve several things. It might involve keeping watch while somebody hunted wild mammals with dogs, or actively encouraging somebody to take part in hunting. It might include providing the means for hunting to take place, whether the means provided were dogs, vehicles or equipment; or—this is the key point in relation to this group of amendments—it could involve making land available for that purpose.
Why is paragraph 2 necessary? If common law principles already provide for somebody who assists an illegal hunt by allowing it to use his land, why is the additional offence necessary? Does paragraph 2 spread the net more widely than under common law? If not, what is the point of the paragraph? If its scope is wider than the common law offence, what is it about hunting that justifies such an approach? Why are the Government not content to rest on common law with regard to aiding, abetting and so on?
Amendments Nos. 33 and 34 try to define more tightly the description of land ownership in paragraph 22. The current definition is too vague. Under paragraph 22(a), an offence would be committed by somebody who owned an interest in land and allowed it to be used for hunting. To take an obvious example, if somebody were a minority shareholder in land, would that person be at risk of liability for a criminal offence if hunting took place on that land with the permission of one of the other owners? Is there an implicit obligation on the minority shareholder under paragraph 2 to take steps of some kind to prevent hunting?
What would happen in the case of a family farm, which might be divided, through inheritance, between several siblings, one of whom owned the majority of the interest and operated the farm on a day-to-day basis, but whose brothers or sisters also had a shareholding? The all-embracing nature of paragraph 22(a) would put those minority shareholders at risk if, for instance, they failed to telephone the police if they knew that their elder brother was inclined to allow hunting to take place across the land; or they failed to take active steps to prevent him from giving permission to the hunt; or they failed to stop the hunt entering the land. I put it to the Minister that the language in the schedule is insufficiently precise and that amendment No. 33 would allow liability to be established with much greater precision.
Much the same argument applies to amendment No. 34, under which the provision would apply to someone who ``directly'' managed or controlled land. That would avoid putting at risk of prosecution a person who might be held to have a legal responsibility for a piece of land that was used for hunting, but who was not involved directly in the land's management or its day-to-day use. If we are to create such offences, it is important that people know whether they are at risk of prosecution. They can then take whatever action the law requires to avoid that happening.
The hon. Gentleman uses the phrase ``at risk of prosecution''. There is always the possibility that something may happen, but may be unlikely in reality. He is tending to mislead the Committee by using such a phrase. The schedule deals with a criminal offence that must be proved beyond reasonable doubt by the prosecution. How can he suggest that someone might face the likelihood of prosecution if there were no evidence that that person had given consent for such an offence to take place?
The amendments would allow for greater protection of someone in the position that I have described than relying on the judgment of police and prosecuting authorities; the Minister implied that that is all that is necessary. We have referred previously to the possibility that malicious reports may be given to the police about how people have conducted themselves. A campaigning group may allege that a person had breached the law. I do not understand why there should be an objection to amendments Nos. 33 and 34, in particular, unless the Government envisage circumstances in which a minority shareholder or someone who did not have a direct interest in the land should be liable for prosecution. Will the Minister deal with such matters at length when he responds to the debate?
Unless paragraph 2 is removed or amended, there will be a risk that a landowner could be liable if he let his land be used for conduct that fell within one of the exceptions under part II of the schedule while he was aware of a risk that the dogs might hunt something else while they were carrying out one of the accepted activities, and indeed did so. If, for the sake of argument, a landowner allowed hunting for the purposes of rodent control, as permitted under part II of the schedule, but knew that there was a possibility that the dogs might hunt other wild mammals during the course of the lawful activity, could he—as the landowner—be in the position of having committed a criminal offence? When granting his permission for the activity that is subject to the part II exceptions, what steps does he need to take to demonstrate beyond doubt that he did not set out to commit the offence?
I tabled the amendments not to have a confrontation with those who disagree with me about the Bill but to tease out the need for the additional offence in paragraph 2 and to suggest ways in which we might define land ownership more tightly than in the schedule.
I have a short and simple question for my hon. Friend the Minister. Paragraph 2 uses the words ``entered or used''. Are those words meant simply in their common sense, or do they have other, legal connotations in other areas of law? Is he confident that they cover the entire range of possibilities of what might be allowed to happen on the land to which the paragraph refers?
My hon. Friend the Member for Aylesbury (Mr. Lidington) is, as he says, not a lawyer; that is a compliment, I suppose. However, if he were a lawyer, he would know that us criminal hacks who are incapable of looking beyond the simplest law book tend to rely completely on ``Archbold'', the criminal pleader's bible, in which can be found all that one needs to know about criminal law as it appertains to most cases in which a lawyer is likely to be involved. It is therefore not a bad idea to read what ``Archbold'' says about the offence that we are considering.
Chapter 18 of ``Archbold'', which is headed
``Criminal Pleading, Evidence and Practice''
states that someone
``who aids, abets, counsels or procures the commission'' of an offence by someone else is
``guilty of the like offence''.
That was the point made by my hon. Friend the Member for Aylesbury. That is the position under the law at present, as ``Archbold'' makes clear.
What does aiding, abetting, counselling or procuring mean? It means that participation by helping in a crime can take many forms, including keeping watch, encouragement and providing the means; dogs, the use of land and vehicles, for example. That is why, in discussing the definition, it is important to appreciate that voluntary presence at the scene of a crime is a fact from which guilt can be inferred; but not necessarily.
Paragraph 18-18 of ``Archbold'' is clear. Common sense tells us that a person cannot escape responsibility for a traditional criminal offence simply because he was not actually committing the crime of breaking into the premises but was keeping watch, providing vehicles and all the other things mentioned in ``Archbold''. As you will see, Mr. O'Hara, the present criminal law is clear and adequate to catch people who aid and abet an offence.
Given that the present criminal law is so clear, why are paragraphs 2 to 4 necessary? They may not spread the net wider than the usual principles that I mentioned, in which case there is no point in including them. If so, why are they in the Bill? Is the intention to spread the net wider?
I do not understand why the provisions are necessary. What is the purpose of creating the crimes mentioned in paragraphs 2 to 4? What is it about hunting that justifies the special treatment that legislators have not deemed necessary in other cases, especially as the supporters of schedule 3 have decided that the offence is not so serious as to justify imprisonment? It is therefore incumbent on the Minister, when he responds, to tell us exactly what is in his mind.
The position is made worse by the lack of clarity in paragraphs 2 to 4, in relation to both a prohibited act and the state of mind. The purpose of the unsatisfactory paragraphs cannot be to clarify the application of the criminal law to secondary parties with regard to the crime of hunting, which would exist in addition to the application of the usual principles. The usual principles are absolutely clear. What is it about hunting that makes those paragraphs necessary?
However, we also have other worries. If a new criminal offence is to be created, it should be clearly defined. What does the word ``knowingly'' mean? If a landowner allows his land to be used for lawful activities, as my hon. Friend the Member for Aylesbury said, but an offence is committed, would he be caught under the provision? The provision is highly applicable in the countryside, but not so applicable in the commission of a normal crime. If someone sets out to commit a burglary or beat someone up, it is easy to interpret the word ``knowingly''. In the complex situation of the countryside, however, it is more difficult.
If the amendments are not accepted, somebody who permits a drag hunt to take place on his land might be caught by the provision. A drag hunt will be perfectly legal after the Bill is passed, but those involved in a drag hunt might inadvertently, or on purpose, take part in some kind of hunting activity.
Similarly, what is meant by the word ``permit''? Would the landowner have to give active or express permission, or would a mere failure render him liable? In various cases, the provisions are not clearly defined. It is not surprising that the National Farmers Union is extremely worried, as it sees that its members could be caught by the provision. As my hon. Friend the Member for Aylesbury said, land tenure in the countryside is extremely complicated. What might happen if someone had a nominal or indirect interest? What might happen to someone who was the landlord but whose farm was tenanted? An individual might own the freehold, but the farm might be leased to a third party. Would the tenant be prosecuted? Would the landowner be prosecuted? It is incumbent on the Minister to clarify those complex matters when he winds up the debate.
Landowners will be responsible, presumably, for taking steps to ensure that anyone who is lawfully on their land does not hunt. Does that mean that farmers and landowners will have the responsibility for policing the Act? Is that fair? Is that not a wholly unreasonable burden to place on them? Unsurprisingly, therefore, the National Farmers Union and Country Landowners Association are extremely worried about these provisions. The NFU describes their effect on its members thus:
``an extension of the law that would attract much resentment amongst those persons.''
The CLA points out:
``Paragraph 22, as it stands, means that any person who owns an interest in land, manages or controls the land, or occupies it, will be taken to own land, and thus be potentially criminally liable under paragraph 2.''
I hope that when the Minister replies he will explain to the Committee why the paragraphs under discussion are necessary. After all, the current criminal law would cover the kind of case that we are discussing. Under the criminal law as outlined in ``Archbold'', it would be fairly easy for the prosecution to prove that a landowner was aiding, abetting, counselling or procuring an illegal hunt that was taking place on someone's land.
The hon. Gentleman has his ``Archbold'' in front of him, but mine is downstairs. Will he confirm that, in relation to aiding and abetting, ``Archbold'' deals with indictable matters, whereas those under discussion are merely summary? Aiding and abetting would therefore not apply.
That is true. ``Archbold'' is concerned with indictable offences. However, the Minister must clarify why the traditional interpretation of ``Archbold'' in relation to indictable offences is not satisfactory in relation to summary offences. What is it about the summary offences under discussion that requires a special provision? If I am wrong, can the Minister point to Acts of Parliament where summary offences have been created and the framers of the legislation have taken the view that special offences must be created and that they cannot rely on the traditional interpretation of criminal law? There is no reason to do so. Common sense tells us that the criminal law is absolutely clear in relation to summary or indictable offences. If one aids, abets, counsels or procures the commission of the offence, one is guilty of that primary offence.
The hon. Gentleman is in danger of going round in circles. Does he accept that aiding and abetting applies only to indictable matters? He seems to be saying, contrary to what he appeared to say two minutes ago, that it also applies to summary matters. As he has ``Archbold'' in front of him, will he confirm my understanding that aiding and abetting applies only to indictable matters and not summary ones? If that is correct, his argument does not stand up at all.
We should adjourn this particular argument, because I am working from notes, rather than having an edition of ``Archbold'' in front of me. In terms of offences under the Theft Act 1968, or other criminal matters that are tried summarily, when the case comes to court, the magistrate can rely on the passage to which I referred to deal with people who procure the offence. Otherwise—this is an interesting legal argument, and I may be completely wrong on the matter—it is incumbent on the Minister to explain why, in creating this offence, it is necessary to have such a provision. We may be discussing a summary offence, but the provision is not necessary in relation to other summary offences. Is the Minister telling me that in creating summary offences, legislation must always include such a provision? If I am wrong, I will accept it, but I do not believe that I am.
Theft is an either-way offence. It can be indictable and can be dealt with in relation to aiding and abetting provisions. The Bill creates summary offences. I ask the hon. Gentleman to clarify the point if I am wrong—I am basing my remarks on recollection and advice—but my understanding is that such matters are entirely summary, and aiding and abetting does not apply. He raised the issue of theft, to which aiding and abetting can apply, but that is not the matter that we are discussing.
I am prepared to accept the Minister's answer—he has the benefit of civil service advice—and if I am wrong, I am wrong. I am glad that the point has been clarified, as it is important. Is the Minister telling me that in creating any kind of purely summary offence, such a provision is necessary?
I can reply at greater length in due course rather than in an intervention. The schedule, as suggested by Deadline 2000, includes the offence. The hon. Gentleman is making an argument, which I do not think has any validity, against the provisions of the schedule. It is for Deadline 2000 and for the House to decide whether the provision is included. However, it is reasonable for me to suggest to the hon. Gentleman that his argument is complete nonsense.
It is difficult to debate with the Minister, because, every time one starts knocking on the door, he says, ``It's not my schedule anyway, it was drawn up by Deadline 2000.'' Unfortunately, Deadline 2000 is not sitting on the Government Front Bench replying to points made in this debate, so that is not an adequate response from the Minister. He is unique in the Committee in having the benefit of professional advice, and he must explain why the provision is necessary. I may be wrong in the way that I have described it, but I have tried to shed some light on the problem.
In creating a summary offence, there must be provisions in the Bill such as the one proposed. One cannot rely on traditional concepts of aiding and procuring, because they apply only to indictable offences. If the Minister is making that case, I shall withdraw my argument. I shall be happy that I have made my point and that he has explained to me that the provision is necessary because it is a summary offence and, if it were not in the Bill, those who aid or procure would not be caught by it.
I feel as though I have stumbled into an Open University course on law. I hope that there may be a qualification for those of who have stuck to it.
My point refers to something said by the hon. Member for Gainsborough (Mr. Leigh). The NFU has indeed said that an extension of the law, such as that he has described, would attract much resentment from its members.
I hear what the NFU is saying. Will the hon. Gentleman clarify that for me? Would the NFU feel that it was right to create a provision, in the way proposed in amendment No. 34, whereby a landlord who owns and tenants land by lease might be able to tell a tenant to allow foxhunting on that land? The tenant might feel obliged to comply and then become criminally liable, whereas the landlord might not. Is that fair? Does the NFU feels that its members would like such an outcome?
The point relates directly to the issue that I wish to raise. As the Minister said, if the Bill becomes law, it will have the propensity that he described to create great friction in the countryside. It is plausible that exactly the circumstances suggested by the Minister will occur, since individuals may choose to challenge the law banning hunting with dogs as laid out in Schedule 3.
I was intending to put to the Minister a similar example of someone feeling great peer pressure when he or she observes colleagues going across the land more or less in the full knowledge that they are in breach of the law. To what extent can they be protected without having to fall back on the inevitable court cases in order to set precedents and define at what level one is regarded as permitting hunting? At what point is it regarded as reasonable for the individual to claim that the pressure was so great that they had to respond? We have been debating legal technicalities under this group of amendments, but I am interested in examining the issue from the point of view of natural justice.
I am concerned that many people who could be liable for prosecution will not have the resources at their disposal to secure proper legal representation. A tenant farmer or landowner may plead guilty because they cannot afford to take on the likely enormous legal resources of those who wish to push for prosecution. One scenario is that those who have been keen to promote a ban on hunting with dogs will act as a kind of police force, especially in the first years of a ban, collecting evidence to ensure that any breaches are taken to court. There may be enormous inequality between the prosecution and the defendant, who could be a tenant farmer of the kind described.
On a related but separate issue, the Minister said with regard to one aspect of the amendments that we must think about the balance of probability and that, in his judgment, the likelihood of prosecution would be extremely low and therefore it may not be reasonable to change the Bill on that basis. I presume that he could foresee it being acceptable defence for an individual to say that he knew that his friend's dogs had the capacity to chase a mammal which is prohibited from being chased and killed. That would presumably subscribe to the criterion of reasonable doubt.
If that is the case, I foresee a difficulty. Given that one must always prove intent and reasonable expectation that the law was about to be breached, many landowners could simply say, ``I genuinely believed that my colleagues were going out to hunt rodents. As you can see, my lord, that is exactly how it began, but it ended up being''—
The Bill would make it an offence for an owner or occupier of land, or a person who manages or controls the land, to permit another person to enter the land to hunt a wild mammal with a dog. Amendment No. 37 would remove the offence, which would significantly weaken the schedule. It would also go against the wishes of the House, which voted for the schedule proposed by Deadline 2000. If an owner or occupier of land, or a person who manages or controls the land, knowingly permits another person to use his dog for illegal hunting, why should he not be guilty of an offence? Members of the Committee will wish to consider whether a vote in favour of amendment No. 37 would be within the spirit of the vote of the whole House.
The Bill defines the circumstances in which land belongs to a person, including where a person owns an interest in the land or manages and controls the land. Amendments Nos. 33 and 34 would narrow the definition by requiring the land owner to have a controlling interest or directly to manage or control the land. To do so would weaken the schedule. For example, it may result in more people falling outside the scope of the offence of knowingly permitting land to be used for hunting or coursing than the House, in agreeing the schedule, would wish. For that reason, I do not advise the Committee to accept the amendments.
Let me deal with some of the points raised in the debate—first, in relation to people being at risk of prosecution. From the sound of the debate, that would amount to persecution. The Bill would no more do that than any other piece of criminal legislation. It requires the prosecution to prove the intention and the act beyond reasonable doubt, in the normal way. If there is no evidence, there will be no prosecution. There will not be, as the hon. Member for Aylesbury suggested, reliance on the judgment of the police and the Crown Prosecution Service; there will be reliance on evidence. If there is no evidence, there is no prosecution, whatever anyone's opinions.
What about malicious complaints? Again, it is a matter of whether there is evidence to substantiate them. As in any dispute when one person says one thing, and someone else says another, the legal system can resolve the issue. This Bill is no different from any other type of law that the House introduces. The Crown Prosecution Service must always consider the realistic likelihood of a conviction. If there is no evidence, there is no risk of conviction, so the suggestion that people will be put at risk is irrelevant to the argument. The risk may be so tiny that a prosecution would be a complete aberration. Our legal system can cope with the low level of risk, so the argument is not a realistic one.
The other concern is that a landlord might allow people to use his land for what he thinks is a lawful purpose, but the people end up hunting in a way that is unlawful. Will that landlord be at risk? The answer again is that the prosecution must prove beyond a reasonable doubt that the landlord intended to act in a way that caused him to commit an offence. There must be evidence that he has done so. If there is no evidence, there will be no prosecution. There is no risk if the landlord allows someone to hunt lawfully on his land. He would be wise to ensure that he gives that permission properly and clearly, as anyone ought to do to ensure that they do not breach the criminal law. Even if he does not give clear instructions and those to whom he has given permission to hunt do so in a non-lawful way, the prosecution must show that such permission was given in order to commit a criminal offence.
I turn to the points raised by my hon. Friend the Member for West Lancashire (Mr. Pickthall) who asked whether the words ``entered or used'' had a commonsense or a legal, technical meaning. The lawyerly phrase would be that they have a normal meaning. There are clear rules of interpretation and there is case law on the definition of the word ``entered''. I am trying to remember from my criminal law the definition of ``entering'' in the case of a burglar entering premises. Basically, it will be given its normal meaning, such as whether someone went over the boundary and entered the property.
The hon. Member for Gainsborough asked about the use of the provisions on the offences of aiding and abetting. I am advised that summary offences would not normally be covered by these provisions, so we must ensure that the Bill has such provisions if that is the will of the House. Whether we want those offences to be covered is a policy judgment. The House has decided. It is now for the Committee and for me, as a Minister, to decide whether the provision is workable, good law and can be enforced. I am advised that it is and that it makes the schedule stronger than it would otherwise be.
I am saying that it is a policy option for the Committee to decide. If the Committee decides to accept it, the provisions are required. The hon. Gentleman, as a lawyer, will know that judges have construed, interpreted and developed criminal and common law over the years. To answer the question posed by his hon. Friend the Member for Aylesbury about whether there is a risk that someone could be prosecuted for aiding and abetting, I have to say that there would be a small risk, because judges develop the law. The hon. Member for Gainsborough well knows that the common law is always developing, but he is asking me to go too far. I am advised that to ensure that the issue is covered, we need to make the provision explicit in the schedule. The House of Commons has decided to ensure prosecutions so, to answer the hon. Gentleman's question, the provision is necessary.
I have a second question for the Minister. Is he advising the Committee that, in previous legislation creating summary offences, Parliament has deemed it necessary to include similar paragraphs to those in the schedule, rather than relying on common law interpretation?
Parliament may do so in certain circumstances and not others, as it is not always felt necessary to include such provisions in legislation. Parliament has to make a policy judgment and, in this case, the House of Commons has decided to include the provisions. It does not need to do so; it could make a policy judgment that it does not wish to prosecute people in such circumstances. In that sense, the hon. Gentleman's question concerns not a legal or technical matter, but a policy judgment. The House of Commons has decided that it wishes to deal with those sorts of offences.
There are a number of issues that I have not yet dealt with, but I shall do so.
The hon. Member for Montgomeryshire (Mr. Öpik) raised a number of points. He asked about people who may plead guilty because they do not have the resources to fight a case. That is not a reason to fail to create an offence. If there were a potential mischief, we would consider legal aid issues. It is possible to imagine a defendant pleading guilty for all sorts of reasons. Is that just? No. Does it happen? Yes. I have been aware of people whom I suspected had not committed offences, but may have wanted to get the matter over and done with, so pleaded guilty. I may suspect that, but as long as a defendant does not tell me so, I can represent him as a lawyer. Is that more likely to happen under these provisions than any others? There is no reason to believe that it would.
I do not quibble with what the Minister said about amendment No. 37; he is probably right that paragraph 2 is in the spirit of what the House of Commons wants. Such sensitive issues are more likely to arise in close-knit environments. Will he consider the need to address the issue, perhaps through legal aid or some support mechanism, that would enable those who feel most intimidated in the coercive environment that I have described to be represented in order to get justice? I am quibbling not with his underlying concern about the spirit of the House's wishes, but with the legal situation that might occur in the countryside.
I hear what the hon. Gentleman says. He is asking me to be sympathetic on an issue of policy. The House of Commons has agreed that the schedule should come into force. The hon. Gentleman suggests that we insert a new view of policy into it. The proper way in which to debate that is for him to table an amendment at the appropriate time. I would then be happy to discuss the problem with him.
One of my key concerns about the amendments tabled by the hon. Member for Aylesbury is that to which I referred on amendment No. 33: a risk of creating a problem. Not only would we have unclear law. A tenant farmer on a short tenancy could not be obliged by a landlord who wanted hunting on the land to agree—under the terms of the lease, the landlord might be at risk of committing a criminal offence—but he might be subjected to oral persuasion. If, after becoming the legal tenant of the land, the farmer is persuaded that he must oblige the landowner and allow hunting, he could be criminally liable. Under the proposals of the hon. Member for Aylesbury, the landlord might be able to get away with that.
In my area and many others across the country, there are people who own a large amount of land that is sub-let to tenant farmers who exercise a great deal of influence in the countryside. I am sure that none of the substantial landowners in my area would seek to breach the law or put their tenants under undue pressure, but it is conceivable that someone somewhere might seek to exercise such influence on a tenant with a short tenancy in order to get them to give permission. The tenant may feel obliged to do so. That would be a worrying turn of events and could end with the tenant farmer being prosecuted and the landowner getting away with it, which would be very regrettable.
The hon. Member for Montgomeryshire also asked about a defence for tenant farmers who are pressurised. There is a defence of duress in the criminal law, but it is defined as, for instance, having a gun put to one's head. However, there is the issue of the level of undue influence or putting people under a lot of pressure. We have to ask whether that is a sufficient defence. The hon. Gentleman might have to consider how he wishes the matter to develop as one of policy. It would, of course, always be open to a tenant farmer or anyone else to place in mitigation before a court that the circumstances in which he was pressurised by a landlord were such that he had little choice in what he did. In that situation, the court might feel able to grant an absolute discharge. The danger of that is that the tenant would then have a criminal conviction, albeit one from which he had an absolute discharge. I know of cases where a court has made it clear that although someone technically committed an offence, they did so reasonably and that others might have done the same in similar circumstances. It therefore grants an absolute discharge and lets the person go away.
The problem raised by the hon. Member for Montgomeryshire is a wider issue to do with criminal law. If someone feels that they are obliged to steal or do anything else unlawful, the same issues will always arise. There is no specific problem in this Bill that does not occur in other areas of the criminal law. There is no reason, therefore, why we should treat it differently.
The Minister might be aware that sporting rights for hunting, fishing and shooting tend to reside with the landowner rather than the tenant. Will he comment on what might be regarded as the slight contradiction in the definition in the schedule? It states:
``For the purposes of this Schedule land belongs to a person if he—...
(b) manages or controls it, or
(c) occupies it.''
That is slightly at variance with the general arrangement in a tenancy agreement. If the Bill becomes law, will tenancy agreements need to change so that, effectively, sporting rights stick with the tenant?
Let me consider that point. I do not think that there is a problem considering that retaining a right or interest in the property could include the ability to grant the rights to hunt, fish or shoot on the land. Therefore, the person would be covered by the provisions. As far as I can see, paragraph 22(a) would cover the hon. Gentleman's point.
I noted another issue that the hon. Gentleman raised about the way in which a defence operates. A defence is raised on the balance of probability. However, a prosecution must be put beyond reasonable doubt. In colloquial terms, the prosecution must prove their case 100 per cent., whereas the balance of probability is weighted 51 per cent. to 49 per cent.
I should like to return to my legal argument with the Minister. I was making the mistake of referring to ``Archbold'' without having the volume before me. That is always unwise, but thanks to the Library, I now have it here. I am a tiny bit miffed with the Minister, because he caught me off guard. He made an intervention that he thought was devastating, but he was intimating to you, Mr. O'Hara, that my points on common law interpretation of aiding and abetting applied only to indictable offences and, therefore, that everything that I was saying was, to use a very un-legal expression, a load of cobblers. Having now acquired ``Archbold'', I am not convinced that that is true—in fact I know that it is not.
I may have misread it, but as it stands, paragraph 2 makes it an offence for a landowner knowingly to permit his land to be entered or used for the commission of an offence of hunting a wild mammal with a dog. That approach is flawed for a number of reasons. Although the offence might be regarded as secondary, it is not. It is a primary offences and as such goes beyond the normal common law rules relating to secondary parties. Common law has already clearly established that someone who aids, abets, counsels or procures a commission of offence by someone else is guilty of the like offence. There is no need for the paragraph. That is as far as I got last time; it is based completely on 18-1 of ``Archbold'', which states:
``When the law relating to principals and accessories as such is under consideration there is only one crime, although there may be more than one person criminally liable in respect of it: Russell on Crime (11th ed.), approved in Surujpaul v. R...Those liable may be categorised as either principals or secondary parties. Secondary parties are those who either aid, abet, counsel or procure the party who most immediately causes the actus reus of the crime. Some overlap may be discerned between the various categories. Furthermore, it should be borne in mind, when reading some of the older authorities, that at common law, in relation to felonies, a person who most immediately caused the actus reus of the crime was referred to as `a principal in the first degree', a secondary party who participated at the time when the felony was actually perpetrated was referred to as `a principal in the second degree' and a person who participated at some earlier time was `an accessory before the fact'.''
At no point does that passage state that the categories relate only to indictable offences.
The most important point concerns summary offences, and is dealt with in paragraph 18-4. According to the paragraph, section 44(1) of the Magistrates' Courts Act 1980 states:
``A person who aids, abets, counsels or procures the commission by another person of a summary offence shall be guilty of the like offence and may be tried (whether or not he is charged as a principal) either by a court having jurisdiction to try that other person or by a court having by virtue of his own offence jurisdiction to try him.''
That passage makes it absolutely clear that, in respect of a summary offence, anyone who
``aids, abets, counsels or procures the commission by another person of a summary offence shall be guilty of the like offence''.
The Minister is therefore wrong to say that the traditional, common law interpretation of aiding and abetting does not apply to summary offences. Moreover, he was certainly wrong to omit mention of the Magistrates' Courts Act in his intervention, because it is quite sufficient to cover anyone who aids and abets the commission of such an offence.
A huge corpus of law has naturally built up around the concept of aiding and abetting. Many people have thought about it over a long period, and it covers everything that we might want to discuss. For instance, paragraph 18-9 of ``Archbold'' states:
``The words `aid, abet, counsel or procure' should be given their ordinary meaning, if possible; the use of four words suggests that there is a difference between the words, for, if there were none, Parliament would be wasting time in using four words where two or three would do''.
I see that notes are being passed to the Minister, so doubtless he can reply to my points at his leisure. Paragraph 18-9 continues:
``It is submitted that the better approach is to give the words their natural meaning; thus an aider and abettor may be present giving active assistance to the principal; he may be some distance away (as in the case of a look-out who watches the householder while the principal, with whom he is contact via a mobile telephone burgles the house); or his act of assistance could be far removed in time and place (as in the case of the supplier of a gun)''.
``Archbold'' proceeds to deal with the matter in detail.
It is important that we get this right. We are creating law, and under the rules established in Pepper v. Hart, the courts will use everything that the Minister says. We are not conducting a trivial exercise; anything that the Minister says can be used by the courts against him, or against those whose livelihoods are at risk. ``Archbold'' deals with concepts such as mens rea, capacity and presence. For example, paragraph 18-13 states:
``it is submitted that presence at the commission of the offence is unnecessary to guilt''.
All those who want to catch people who are apparently aiding and abetting the commission of an offence can therefore rely on existing law, which is quite clear. For example, ``Archbold'' states that there must also be participation in the act. A man who is present when an offence is committed but takes no part in it and does not act in concert with those who commit it does not become an aider and abetter.
These are important issues. Parliament and the courts have recognised that in dealing with criminal offences, such matters must be carefully tied down. I hope that the Minister will explain why, almost uniquely to this particular offence, he is putting in his Bill--it is not Deadline 2000's Bill--the provision that we cannot rely on the traditional common law interpretation of aiding and abetting or on the Magistrates' Courts Act 1980.
First, the hon. Gentleman quoted at length from ``Archbold'', much of which referred to felonies. He will be aware of the relationship between felonies and indictable offences from his tuition before qualifying as lawyer. He quoted section 44(1) of the Magistrates' Courts Act 1980 and I am happy to examine that, but he referred to courts having jurisdiction. I shall examine the precise quote from ``Archbold'' to see whether my interpretation is the same as his.
Despite what the hon. Gentleman said, the issue remains one not of technicality but of policy. It is for the House of Commons to decide whether it wishes to endorse a particular policy. There is always a strong argument for making the intention of the House explicit in statute. Relying on common law, which develops and changes as judges make new decisions based on the system of precedent, can, because of the way in which it develops, give rise to doubt as to the intention of Parliament. If Parliament makes law on controversial matters such as hunting, it is right and proper that it is explicit. The hon. Gentleman would be criticising me more strongly today if I had introduced the Bill without the provision in the schedule. If I had not set out the further provisions in paragraph 2, he would have said that people would perhaps be caught for aiding and abetting, too. We are seeking to clarify that ``perhaps'' by having the provision clearly set out in the schedule.
The hon. Gentleman referred to Pepper v. Hart, but that is applicable only if I am giving guidance on how a provision should be interpreted, because it relates to interpretation. With respect to the hon. Gentleman, he needs to be clear about when Pepper v. Hart applies and I suggest that, in our present debate, it does not. It applies only when I introduce a provision and indicate how Parliament and the Government intend the provision to be interpreted. If we were prepared to accept the amendment, I could set out how it should be interpreted. However, I do not intend to accept it and I advise the Committee to reject it.
I am sorry to intervene so late in the day, but a further point has come to my mind. There is one aspect to which the provision has special relevance. It is my experience that many tenant farmers strongly oppose hunting because of the damage that sometimes occurs on their farms, but they allow it because they feel under pressure from landowners, who often lead those who are in favour of hunting. That is particularly important to the matter that we are discussing.
I apologise for arriving late. I was waylaid, because I had to deal with a person—[Interruption.] I note that the hon. Member for Mid-Norfolk (Mr. Simpson) keeps making sedentary interventions. His constituents might prefer him to speak for them rather than speaking in that way, if he has something to say.
I confirm for the hon. Member for Gainsborough that I have had the opportunity to examine my copy of ``Archbold'', which I had downstairs, and that his interpretation of section 44(1) of the Magistrates' Courts Act 1980 appears to be accurate. However, that does not cause any problem in terms of the schedule, because it is a policy decision whether we clarify the matter in the schedule and make it certain in a way that it might not be if we relied on the interpretation of the common law issue of aiding and abetting.
I sensed, during our brief previous adjournment, that the hon. Member for Norwich, North (Dr. Gibson) had a lightness of step, as he felt that his moment of glory on the Front Bench was about to dawn.
I am glad to be able to respond to the arguments that the Minister proposed as reasons for not accepting our amendments. His least plausible argument was that, by accepting any of the amendments, he would be challenging the will of the House as expressed on Second Reading and in Committee of the whole House. That amounts to an argument for this Committee to leave the schedule untouched and unamended, whatever flaws or faults we find in it. It is our job, however, to discover exactly what impact the legislation is likely to have on the people that we represent, whatever view we take of the principle of the Bill.
My hon. Friend the Member for Gainsborough drew attention to the fact that the Bill will create new criminal offences. Hon. Members should tease out the meaning of those offences and the extent of criminal liability in as great a detail as possible during our proceedings, so that people can understand how the law is changing and how behaviour that is at present lawful may become unlawful if the Bill is enacted.
Much time was spent on a learned exchange of views over the relationship between common law principles of aiding and abetting and the supposed need for a statutory offence of allowing land to be used for hunting with dogs. The exegesis of ``Archbold'' that we have heard during the proceedings has not, to my mind, cleared up the ambiguity that has surrounded the subject. The Minister's previous intervention seemed to suggest that those common law principles might enable a prosecution to be brought against a landowner who allowed land to be used, but that one could not be certain whether that was the case, and that as an aid to certainty, a new criminal offence is being created, in paragraph 2 of the schedule. I remain uncertain whether the ambiguity has been cleared up altogether.
Then we heard the argument that one could rely on the evidence of the need to prove guilt beyond all reasonable doubt. We all accept that police officers and the Crown Prosecution Service act in good faith. However, as one hon. Member said in a previous debate, it is also true that we all have experience of daft decisions being taken to pursue a prosecution. It is important that the law should be crafted to avoid that risk. For someone who is innocent and has a completely unblemished record simply to be arrested, taken to the police station and charged is stigma enough—even if the Crown Prosecution Service finally rules that there is insufficient evidence to justify bringing formal court proceedings.
We were then told that there was no risk that people could be caught if they allowed their dog to go after rats and found that the dog chased a fox instead, in an area in which they had been given permission to hunt. I was reassured by what the Minister said—at least, as regards the intentions behind the schedule in that respect. However, a certain amount was left unclear, and there seemed to be a grey area in the Bill.
Finally, the Minister made the argument, on a subject to which the hon. Member for Newbury (Mr. Rendel) also alluded, that one of the amendments might have a perverse effect. It was said that it might make life more difficult for those tenant farmers who wanted to stop hunting taking place on their land but were under moral pressure from their freeholder. That is a reasonable criticism, and I will think about it further.
As I said during my introductory remarks, I intended that the amendments should be treated as probing amendments. I did not intend to press them to a Division, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
With this it will be convenient to discuss the following amendments:
No. 36, in page 19, line 29, leave out `knowingly permits' and insert 'gives express permission for'.
No. 38, in page 19, line 32, leave out `knowingly' and insert `deliberately'.
No. 39, in page 19, line 32, leave out `knowingly permits' and insert `gives express permission for'.
This group of amendments deals with the meaning of the word ``knowingly''. Amendment No. 35 would replace ``knowingly'' with ``deliberately'' in respect of the offence of allowing someone to hunt on one's land. Amendment No. 36 would tackle the same issue in a slightly different way. Amendments Nos. 38 and 39 form a pair and make the same changes in wording to that paragraph of the schedule that makes it a criminal offence for one to use or make available a dog for the purpose of hunting with hounds. These are probing amendments, rather than ones over which I intend to seek a pitched battle. What concerns me is the question of what someone has to know for an offence to be committed.
Let us take some examples. What happens if a man knowingly permits a dog to be used for flushing out animals that are allowed to be so treated under part II, but then an offence is inadvertently committed? Let us suppose that a landowner lets people use his land for lawful activities, perhaps for the limited hunting with dogs that would be allowed under the exceptions listed under part II, but an offence is then committed by those whom the landowner allowed. What does ``knowingly permit'' mean in such circumstances? For an offence to have been committed, does permission to hunt have to be given positively or is there liability in a man's failure to prevent the criminal act from taking place when he has the power to prevent it? If he omits to take certain action, will he be criminally liable?
I am intrigued at the hon. Gentleman's line of thinking. I understand from earlier revelations that he is not a lawyer. Well, neither am I, so between us we may be able to cast greater illumination on the debate. He asked what a person had to know, as if it was a matter concerning the knowledge of a fact. That was an interesting philosophical speculation, but in common parlance, are we not concerned about a person knowing what he is doing rather than knowing facts? Surely courts are well used to setting such tests in respect of human behaviour. They have to judge what is, or is not, an offence on the basis of the evidence before them.
The right hon. Gentleman may be correct, but the schedule's phrasing is uncertain. From my reading of it, I am not sure what a person has to do to demonstrate that he did not knowingly give permission. To prove an offence, the key question is whether it is enough for the landowner or the dog owner to state that he had given permission for hunting to take place illegally, or whether it would be acceptable for the prosecution to say, ``You claim, o landowner, that you did not give permission for people to use your land for hunting, but we have witnesses to show that you gave a nod and a wink or were aware that something was happening, but took no action to prevent it.'' Guilt could arise from an act of omission.
The hon. Gentleman is again extending his argument into a philosophical discussion rather than a legal debate. When dealing with children, we must judge whether they understood what they were doing—along the lines of, ``That was naughty. You knew it was naughty.'' All of us have to deal with such matters. A good philosopher can make a real meal, several lectures and even a contribution to a Standing Committee on the basis of that question, but in practice the position is simple, and it is one that lawyers and the courts are used to dealing with in a sensible manner.
I hope that the Minister can give me an answer that is as reassuring as the right hon. Gentleman's interventions. We are not discussing an issue that is a problem in the abstract and a matter of debate between philosophers, but what steps ordinary men and women, working in the countryside, have to take to ensure that they do not face the possibility of a criminal prosecution in certain circumstances.
Does my hon. Friend agree that such questions are not always about what might happen in the courts? They relate to how people perceive their position vis-a-vis the courts and the criminal law in their normal daily lives. The issue is surely whether people feel that they understand what ``knowingly'' in such circumstances might reasonably mean. I hope that we will not expect everyone to read the Bill, but in so far as they might—or might obtain information about it—they should understand what it means. It is hard to describe to people going about their ordinary lives exactly what the phrase means.
My right hon. Friend is right. I do not want to stray from the amendments, but his point is especially well made because we are discussing people who are carrying out activities that have been lawful for generations. Customs and practices have developed, and arrangements for hunting on someone's land or allowing another person's dogs to hunt on someone's land are often informal. That fits rather badly with notions of formal permission. It is not a way of life whereby people rely on filling in forms and having formal legal agreements to prove that permission has or has not been given in particular circumstances. I believe that it is important for people to know as far as possible, as my right hon. Friend said, the precautions that they will be expected to take if the Bill becomes law.
If the right hon. Gentleman will forgive me, I shall refer to a further example.
Let us consider a farmer who allows his land to be used for shooting. Someone who shoots might commit an offence if he uses a dog to rouse game, unless the circumstances defined in paragraph 7—the list of exceptions—apply. Many such ambiguities seem to pervade the schedule. The word ``knowingly'' is one of them.
I do not want to press the amendments to a Division. However, we might benefit from an explanation from the Government of precisely what they intend the phrases to mean and of the steps in practical everyday life that rural people will be expected to undertake to show that the permission provided for in the Bill has or has not been given.
I am grateful for the opportunity to comment briefly on this philosophical discussion. The right hon. Member for Suffolk, Coastal (Mr. Gummer), who has recently joined us, may comment from a legal standpoint, but the moving of the amendment seems to have been based entirely on philosophy. It is theoretical in the extreme, and it does not relate to the practicalities of the law.
In a sense, it is difficult for us to follow the hon. Member for Aylesbury in depth, because if we were to do so we would find that it is philosophically difficult to understand what has been decided only if we were to decide a different option from the one on which the House of Commons decided. If the middle way option had been decided, it would be incredibly difficult for people to know what had been decided. They would therefore face risk such as the hon. Member for Aylesbury suggests, and we would be debating arguments such as the right hon. Member for Suffolk, Coastal advances from the Back Benches.
However, that is not what the House of Commons decided. The House of Commons decided that there should be an end to hunting with dogs, and that decision has been expressed in the main elements of the Bill. Therefore, the consequences are clear for people who knowingly support and encourage the activities set out in the Bill. Although there is an interesting philosophical discussion to be had, we need clarity in terms of the law. We have left behind vague philosophical discussion, except when it informs the nature and quality of the law that we seek to make. The hon. Member for Aylesbury did not satisfy that requirement in his introduction.
I am glad that my right hon. Friend is not a lawyer, because I am more convinced by my point than I was before he spoke.
The landowner gives permission for a hunt because, in most cases, his tenant does not have the power to give that permission. However, the tenant is obligated to the landowner to keep his land free of rodents and other animals, such as rabbits, that could damage his property. If the landowner deliberately says—and this is where the problem comes—that his tenant must allow a hunt to take place, the tenant is knowingly participating in it. However, the tenant is also obliged to keep the land free of rodents. Perhaps my right hon. Friend can explain that contradiction?
I am happy to do so. First, that muddle would have arisen only if the House had gone along with the muddled Middle Way Group. Its proposals did not offer clarity, so the type of muddle that my hon. Friend describes could have occurred. However, the House took a view on the mater. On the frequent occasions when there will be competing pressures—some of which will be in the law if the type of hunting forbidden by the Bill, as it is now proposed, is taking place—it will be clear what one is not supposed to do, support or encourage. The hon. Member for Aylesbury sought, rather unsuccessfully, to develop that muddle in his speech. However, the situation is clear; the House of Commons has decided what it believes is right for the future. Legislation must reflect that and people must behave in accordance with the decision of both Houses of Parliament.
The landowner knowingly says to his tenant, ``You must keep my land free of rodents and other pests.'' That is something that the tenant must do, but the landowner has not said that he can do it by any means. However, the landowner has knowingly said that the land must be kept free of pests. How can the landowner take responsibility for the consequences?
Let us consider a couple of other examples. A shopkeeper is enjoined by law not to sell tobacco to children under the age of 16. The landlord of a club is enjoined not to allow underage drinkers in it. Those are examples where the tenant is responsible for carrying out his trade or business in a way that respects the overall law. The law is clear; do not sell tobacco to youngsters under the age of 16 or, alternatively, do not hunt. Of course, there will be complexities in maintaining civil obligations to a landowner. Life is complex, but the principle is straightforward and clear.
The philosophical difficulties or obstacles that the hon. Member for Aylesbury suggested in opening the debate do not exist. If they did, that would complicate every aspect of the law, and terminally complicate more complex matters than the relatively simple one that we have before us today. It is just as well that we did not select the middle way as the option to be debated in Committee, because we would have been dragged into a morass of philosophical difficulties. That did not happen because the House of Commons took a clear and sensible decision, and we should not allow the matter to be unduly complicated here.
I am sure that my hon. Friend the Minister will clearly explain the legal position. As far as my lay experience of administering the law as a magistrate over the years is concerned, I foresee that the courts will have no difficulty, with the wise guidance of their clerks, in interpreting the Bill and dealing with such issues.
I fear that the right hon. Gentleman's contribution makes the situation even less easy to understand. In responding to the intervention by the hon. Member for Newcastle-under-Lyme (Mrs. Golding), he used the parallel of a shopkeeper selling cigarettes or a publican selling alcohol. In both those situations, a person presents himself at a place and requests a product. At that point, the person concerned is clear about his role. His responsibility is absolute and his opportunity is unhindered. There is no question about whether he will drink the beer or buy the cigarettes; that is part of the transaction.
The complication arises not because the House of Commons made a certain decision, but simply because it is in the nature of such legislation to create much more complex situations than those which obtain in a retail transaction. I am not a lawyer, but I care about the people who will be affected by the Bill; they are not lawyers either. The word ``knowingly'' may apply to somebody who is not necessarily there when the action takes place, nor is he necessarily the only person for whom permission would need to be given.
As the hon. Member for Newcastle-under-Lyme pointed out—on the basis of her great experience—relationships between tenants and landlords must be thought through to determine who is deemed to be acting ``knowingly'' in such circumstances. For example, if the tenant does not have a legal right in contract law to give permission for the action to take place, but is nevertheless in a position to point out that it should not take place, and does not do so, can he be said to be ``knowingly'' involved? I hope not, because he should be able to prove that he would not have the right to give permission, and therefore has not given it.
The question is not only whether he can be said to be involved, but whether whoever seeks to prosecute him can prove beyond reasonable doubt that he knowingly permitted it. That is a safeguard, not a risk or a danger, for anyone who might be accused.
I am glad that the Minister sees it that way.
I turn to the point on which I wanted to intervene on my hon. Friend the Member for Aylesbury. Land ownership is much more complicated than is sometimes recognised. Many people have pieces of land that are hunted over. I have a few such fields around my house. I do not hunt, but I am perfectly happy for people in the local hunt to use the land for that purpose. They know that, although I have never formally told them so. They recognise that I am an enthusiastic supporter of country sports. I appreciate the contribution that they make, and I have many friends and relations, including children, who take part in them.
I am not discussing that matter, but my view is that people should not ride where they are asked not to ride. People have hunted over my land for a very long time because my predecessors and I have taken the same view.
On one occasion, someone did ask permission to hunt over my land. It was not the normal hunt, but some form of special occasion. I said yes, and I have never contemplated rescinding that answer. If they wanted to hunt again—indeed, I believe that they have—I should be happy for them to do so, and my view is generally known.
If the provision were enacted, would I be deemed to have knowingly allowed hunting over my land—a very small piece of land that is not often hunted over—even though the hunt in question happily operates from our village, and even though I had not specifically said no? That is an important question. Like me, many people are not landowners in the accepted sense of the word; they merely happen to own a bit of land surrounding the house in which they live.
To what lengths should people such as me generally be expected to go? Should I make a telephone call or will I have to write? The assumption has been that matters would continue as before, with hunts with offices and officers. However, if the Bill is enacted, people will not hunt in the properly organised way that has been much to the honour and glory of our countryside. Instead, hunts will take place illegally, and in what the Government will no doubt describe as a shifty manner. I am unsure how I will be supposed to show my displeasure at hunting over my land. I am known to be in favour both of hunting and of supporting the law. Will it suffice for me to be known as a law-abiding citizen who does not himself hunt, or will I be expected to do something positive to prevent the claim that I knowingly allowed hunting on my land?
The Minister has underestimated the degree to which the Bill has caused concern in the countryside. I intervened on my hon. Friend the Member for Aylesbury because I wanted to make it clear that what matters is not just what the courts would do, but what people fear they would do. That is why I am unhappy about the lack of prescription in the word ``knowingly''. After a few court cases, case law will develop and we will know where we are. Until then, many people will remain concerned at the prospect of becoming involved.
The comparison made by the right hon. Member for Cardiff, South and Penarth (Mr. Michael) is wrong. I am talking not about people such as retailers, publicans or others who do jobs involving laws that must be obeyed, but about those who happen to live in the countryside, and who join in activities common to many parts of rural England. They are not involved in formal relationships or commercial activities; they act merely as decent countrymen and women have acted down the generations. Now, an outsider is telling them that they must not participate in such activities any longer. That is all right for those who are actively doing something, but not so easy for those who, in many cases, are merely permitting an activity in a rather supine way.
It is important for the Government to express clearly what they mean, and how they expect the courts to take it into account. It is all very well saying that there shall be case law. Yet again, in my usual helpful manner, I am trying to help the Government not to get in more trouble in the countryside. Will it be clear to people that no one need notify anybody merely because his land has been hunted over? Will it be clear that no one should expect to be prosecuted unless they have clearly given permission to somebody to hunt on their land? That permission must be a positive, active statement before it can be said to be ``knowingly.'' Anything less than that would not stand up in court.
I can help my right hon. Friend, because it may be that the Minister has drafted the Bill correctly in this case. As I understand the amendment, my hon. Friend the Member for Aylesbury is worried about the word ``knowingly'' because it may lead to confusion. He wants to insert the word ``deliberately'' because that is plain English; for example, somebody ``deliberately'' allowed a hunt on his land. If the word ``deliberately'' were unacceptable, the landowner would have to give express permission.
My hon. Friend the Member for Aylesbury thinks that his version would make it clear that the landowner must have known what was going on. The amended Bill would read:
``A person commits an offence if he deliberately permits land which belongs to him''.
My right hon. and hon. Friends are worried because a landowner who allows his land to be used for perfectly lawful activities could be caught under that provision if an offence took place on his land. That is why they are concerned with the word ``knowingly''. Therefore, they are asking the Minister if a landowner would be guilty if he allowed people on to his land, suspecting that an offence might be committed.
My right hon. and hon. Friends are also worried about various practical matters. For example, hare coursing is prevalent in the countryside; it occurs in my constituency, as in others. Landowners have come to me and complained that the police are not doing enough to control illegal hare coursing. The landowners know that hare coursing is happening on their land. I should point out, before someone intervenes, that it is not actually illegal, but once the Bill becomes law, it will be. The landowner knows that hare coursing will not stop, and it might increase. Therefore, is he caught under the provision?
Before the Minister intervenes, I may be able to help him on this. I hope that you will not be angry, Mr. O'Hara, but I shall refer briefly to ``Archbold''. In paragraph 17-49 on page 1574—
Under ``knowingly'', ``Archbold'' states:
``the Crown has to prove knowledge on the part of the offender of all the material circumstances of the offence.''
The Minister may agree; this is an important point on which I can help my right hon. Friend the Member for Suffolk, Coastal. When the Minister sums up—I hesitate to refer to Pepper v. Hart, but we are discussing interpretation law—it is important that he reassures landowners on this point.
Will my hon. Friend take that a stage further? The word ``knowingly'' is connected with the word ``permit''. Does a degree of knowledge demand a degree of action, other than not actually saying that people can? Or must he do more than that?
No. To be guilty of having knowledge, he does not have to permit. If illegal hunting takes place on my right hon. Friend's land, he does not have to permit anyone to fall under the ``knowingly'' provision. If illegal huntsmen are plotting their grievous offence, they do not need to ask my right hon. Friend's permission. However, he will be guilty if the courts find that he had knowledge
``of all the material circumstances of the offence.''
I am trying to help the Minister. It is important to reassure all landowners because there is great concern about the matter in the countryside. As I understand it, my right hon. Friend and all landowners should be safe if illegal hunting takes place and they have not given permission, because how could they possibly know or have in their possession
``all the material circumstances of the offence''?
That could cover any circumstances. For example, a landowner might know that illegal hare coursing was taking place on his land, but he would not know who was involved; otherwise, he would immediately report them to the police. He would not know at what time they came on to his land and exactly what they did.
My hon. Friend said that if a landowner knew about the activity and who was taking part, he would of course report it to the police. Does he say that because everyone in such circumstances would believe that to be his duty, or because, if a landowner did know and did not report it, he might be held liable of knowingly not doing what he needed to do to stop the illegal activity?
I appreciate that I am speaking to a barrister who is qualified in the law--I am not a lawyer--but to what extent is someone culpable if he or she turns a blind eye to an activity that he or she knows is illegal?
I am glad that the hon. Gentleman made that point because it is precisely the point that I was coming to. Again, ``Archbold'' states:
``There is some authority for the view that in the criminal law `knowledge' includes `wilfully shutting one's eyes to the truth' ... However, such a proposition must be treated with great caution. The clear view of the courts at present is that this is a matter of evidence, and that nothing short of actual knowledge (or, in the case of dishonest handling, belief) will suffice.''
The jury is out on that interesting point, but I repeat that
``There is some authority for the view that in the criminal law `knowledge' includes `wilfully shutting one's eyes to the truth'''.
If the Bill becomes law and my right hon. Friend, who does not like it and will not be involved in illegal hunting because he does not hunt, knows that illegal hunting is taking place on his land, although no one asked his permission--no one will knock on his door to explain what is happening as was done by the resistance during the war--
My right hon. Friend the Member for Suffolk, Coastal will disagree with that.
Is the Minister deliberately shutting his eyes to the truth? I am not sufficiently qualified to answer that, and I shall have to leave it to him. I hope that he will reassure landowners that the provision is watertight. The Minister is shrugging his shoulders like a French politician.
While the hon. Gentleman is doing his impersonations, I ask him to confirm that he is familiar with the use of ``knowingly'' in existing provisions. Are not the courts used to dealing with it on an everyday basis?
Of course they are. However, as my right hon. Friend the Member for Suffolk, Coastal said, it usually relates to cases of obviously criminal activity such as handling and theft. The situations that will arise in relation to the Bill are far more complex. We have had numerous debates about examples such as illegal hare coursers and the dog owner who takes his dog for a walk and it chases after a rabbit. Myriad activities are occurring on the fringes of the Bill. I agree with the right hon. Member for Cardiff, South and Penarth—
Will the right hon. Gentleman allow me to point out that my constituency contains Europe's most exciting waterfront, as well as the capital of Wales—
I accept that Montgomeryshire may not be the liveliest place compared to Cardiff. However, cases will be brought to establish precedents relating to matters that we have not made clear in Committee. Does the hon. Gentleman agree that we must avoid at all costs the passing of a law that ultimately has to be defined by the courts?
You will be relieved to know, Mr. O'Hara, that I am drawing my remarks to a close.
``For example, on a charge of `knowingly having in his possession an explosive substance', the Crown must prove that the accused knew both that he had it in his possession and that it was an explosive substance''.
That reveals the extent of the problem. Quite an onus is placed on the prosecution in such an obviously criminal case.
My hon. Friend is right. If the law takes the trouble to require that one must know that one possesses a substance and that it is explosive, it has clearly recognised that ``knowingly'' is not a simple concept, even in respect of something as obvious as an explosive substance. Under the Bill, we are not talking about anything so obvious, but about knowledge of an activity that has hitherto been perfectly legal and widely considered to be perfectly reasonable in the areas where it is carried on. Most people intend to be utterly passive in this respect, and I want to know whether they will nevertheless be free of the risk of prosecution.
If my right hon. Friend were utterly passive—which he never is—but knew exactly what was going on, he would be guilty. In future it will not be good enough for him to be utterly passive in his enjoyment of his own property.
I am now particularly concerned. One of the pleasures of living in the countryside is that, from time to time, one is able to be utterly passive. Does the provision mean that I must do something, even if the activity is nothing to do with me? What is it that I have to do? Do I have to go outside, wave my arms about and say, ``Don't come here''? What if I am not there? Do I have to go home to do it? [Interruption.]
The Chairman: Order. There is much subterranean noise in the Committee, I am finding it difficult to hear the right hon. Gentleman. I appeal to members of the Committee who wish to debate among themselves to do so outside the Room. I appeal to those who are attempting to intervene to do so when the Chairman is in a sedentary position.
I am grateful to my right hon. Friend the Member for Suffolk, Coastal, who has a sharp intelligence. I started my speech by wanting to support the Minister and feeling that landowners could be reassured that they had to have exact knowledge of what is going on. However, having listened to my right hon. Friend, I think that he has a serious point. The fact that he is a person who passively enjoys his own land, even though he knows what is going on, would render him liable to prosecution in the criminal courts.
Is not the problem faced by the right hon. Member for Suffolk, Coastal rooted in a reluctance to acknowledge a change in the law? It is not acceptable in law to go into a state of denial that what is now a criminal offence requires one to acknowledge it as such. Knowingly to be passive in the face of that makes one a collusive part of it. The problem faced by the right hon. Gentleman is to be found in accepting that it is manifestly the will of the House to make hunting with dogs an illegal and criminal offence.
There are two consequences. The first is that the right hon. Gentleman and many others need to understand the change in the law. Also, as a wise former Minister, he may be well advised to take heed from the actions of a current Minister and, if in doubt, make a careful note of the events and pass it across, if not to a civil servant to the nearest constable, in order to ensure that the hunt knows that it has no right of passport across his land.
I am becoming more and more worried. I am glad that the hon. Gentleman, who is completely honest in his beliefs and well respected in the House for that, has made that point. My right hon. Friend the Member for Suffolk, Coastal now has to be a policeman against his own conscience.
Mr. Gordon Prentice rose—
I will give way in a moment. Having had this discussion, I do not think that the Minister can deny that it is no longer good enough for my right hon. Friend the Member for Suffolk, Coastal simply to shut his door. He is a completely honest person; he will never break the law. He does not even hunt, but now, because he knows that there may be people out there chasing after hares, rabbits and so on, he has to ring up the local constable and act as the local enforcer for the hon. Gentleman.
I do not think that my hon. Friend has done the hon. Member for Nottingham, South (Mr. Simpson) due honour for what he has revealed. The question is not whether I am in favour of hunting, but whether the law says that, given where I live, I have a duty to do something. If so, the law ought to tell me what I have to do. Do I have a duty to stop the hunt, or a duty to tell somebody else that the hunt is taking place? If so, within what time limit and in what circumstances must I do that? [Interruption.]
I am asking the question because I am concerned not for myself, but for the many people who need to know the position. They need to know what the provision means, without the benefit of case law. What about circumstances in which someone, without the landowner's permission or his being party to it, takes part in hunting? If the landowner is not present, is he in the same position as if he were? Does the provision apply to everybody, or only to those over the age of, say, 18?
As my hon. Friend says, in a crushing intervention, he is bang to rights. All that the Crown has to prove is that the landowner had knowledge of what was happening. It would help if the person took active steps to report it, but if he knows what is going on, he is guilty.
Let us not beat about the bush. One cannot turn a blind eye to law breaking. The hon. Member for Gainsborough is a distinguished barrister. He referred us to ``Archbold'' and gave us a definition of ``knowingly''. He, or his hon. Friend the Member for Aylesbury, want to substitute the word ``deliberately'' for ``knowingly''. Can he help a non-lawyer by referring to ``Archbold'' and giving me a definition of ``deliberately''?
The whole debate is hung on the word ``knowingly'', and the concern that a landlord ``knowingly permits''. My right hon. Friend the Member for Cardiff, South and Penarth was right when he said that the courts are used to dealing with such phrases. They will be familiar with the words and will be required to interpret their usual meaning. They will be able to do that with simplicity and straightforwardness, bearing in mind all the detail that the hon. Member for Gainsborough can give us from ``Archbold'' and Stones ``Justices' Manual''.
The hon. Member for Aylesbury said that this was a probing amendment. I shall treat it as such, without criticising the attempt to insert the phrase ``deliberately permits'', on the basis that he does not seek to do that. I should have some objection if he did. The phrase ``knowingly permits'' means that the prosecution must prove that the person knew and gave some sort of explicit or implicit consent or permission. That has to be proved beyond a reasonable doubt. I repeat what I said to the right hon. Member for Suffolk, Coastal: the provision provides a safeguard for a potential defendant rather than a serious risk.
The Minister is helping me considerably. Is he making a key distinction between the phrase ``knowingly permits'' and the suggestion from his own Back Benchers that if one knows that a crime is going to take place, one should—quite rightly—inform the authorities? Does knowledge of the intention to commit a crime have anything to do with the extent to which one knowingly permits it?
I am just coming to that. Whether characteristically or not, the hon. Member for Gainsborough, who spoke in his barristerial capacity, was very helpful in that regard.
The right hon. Member for Suffolk, Coastal referred to a landowner who knowingly permits a hunt to use his land for hunting with dogs. He asked whether he would be likely to put himself at risk if he did nothing to revoke consent, given that he knew that the hunt regularly crossed his land for that purpose. He would indeed put himself at risk, but the real question is to what extent. In the right hon. Gentleman's case, the view might be taken that consent was given before the legislation was enacted. The courts would want to establish whether the right hon. Gentleman was law-abiding, and I am sure that they would feel that there was other evidence to suggest that he normally abides by the law.
The burden will always be on the prosecution to prove guilt beyond reasonable doubt. Given what we know about the right hon. Gentleman, it is unlikely that he would be at serious risk of prosecution. Because he was aware of the law, it is unlikely that he would have given permission to break it. However, another landlord might be known to break the law on occasion, and might not have the good character that the right hon. Gentleman would be able to impress on the court.
As the hon. Member for Gainsborough said, the person in question must have knowledge of all the material circumstances of the offence. I stress the word ``material'', because the courts must determine what is material to proving knowledge in a given circumstance, and the prosecution must prove knowledge beyond reasonable doubt. The hon. Gentleman was also right to say that knowledge can consist of wilfully shutting one's eyes to the truth. Again, the question of whether a person has acted in that way is a matter of evidence.
What advice would be given to a person who knew that a hunt was likely to cross his land? Quite properly, he would probably be advised to exercise caution. The right hon. Member for Suffolk, Coastal asked what we should do about fear of transgressing the law until it is clarified by the courts. We would all agree that anyone who feared that they might be transgressing the law should act with due caution. There is nothing wrong with telling someone who is close to breaking the law that they should exercise a fair degree of caution; it is only right and proper that they should.
If someone in the right hon. Gentleman's position knew that a hunt to which he had previously given permission intended to cross his land illegally, perhaps he should have taken action to show that such permission would not continue. He could make a telephone call and retain some evidence of it. [Interruption.] I am not offering an opportunity in that regard. He should perhaps write a letter and ensure that he keeps a copy, or telephone the police and say, ``I understand that the hunt might try to cross my land, but I am not giving them permission.'' That would constitute evidence that he has not given permission and, therefore, that he has not committed an offence.
No, not at the moment.
Whether or not the right hon. Member for Suffolk, Coastal has informed the police, the prosecution must always prove that he has done something ``knowingly'', and that that amounts to ``permitting''. The prosecution must provide evidence of that beyond a reasonable doubt.
The matter still worries me. That interpretation suggests that people going about their normal, reasonable business in the countryside could feel that at some future point somebody might say, ``You must have known that a hunt was around here, and you should have done something.'' That is what I understand the hon. Gentleman to have said, and I understand that the further point that it would have to be proved in court covers it. However, I hope that he recognises how serious this is. A new responsibility, from which people cannot opt out or in, is being placed on their shoulders merely because they live in a particular place. I cannot think—although perhaps the Minister can tell me—of an exact parallel in other legislation, which concerns me and will concern many country people.
The right hon. Gentleman is overdoing it. He is trying to claim that I have suggested that someone saying to a farmer, ``You must have known'', is sufficient to justify a prosecution. Of course it is not. It is nowhere near sufficient to get the police to make an inquiry. We would require clear evidence that would prove beyond a reasonable doubt to any court that the person knew and permitted in order for there to be a prosecution.
I hear the hon. Gentleman say no, but I have already indicated that knowledge can be explicit or implicit, which perhaps deals with the reason why he said ``no''.
The prosecution must prove its case and it must provide evidence. Therefore, the risks and fears that the comments of the right hon. Member for Suffolk, Coastal might raise in the minds of those who live in countryside, such as my constituents, are not founded on any realistic prospect of any type of prosecution. The prosecution must prove its case beyond reasonable doubt, so unless there is evidence, it will be unable to do so. There is no realistic risk of a prosecution of the type that he is trying to create the fear of in the countryside.
Can we clear up this point? The Minister is constantly referring to permission, but does he accept that my right hon. Friend does not have to permit, implicitly or explicitly, anybody to hunt in order to be guilty of the offence? All he has to have is knowledge of the material circumstances.
In response to the hon. Member for Pendle (Mr. Prentice), ``deliberate'' is a better word. ``Deliberate'' is not referred to anywhere in ``Archbold'' because the courts know that ``deliberate'' is absolutely clear—it relates to mens rea. To be guilty of an offence, one must deliberately set out to commit it, and know that one is doing it. Therefore, ``deliberate'' is clear, although ``knowingly'' is subject to confusion.
I have a direct question for the Minister: can my right hon. Friend the Member for Suffolk, Coastal be guilty without ``permitting'' anybody to do anything?
The right hon. Gentleman cannot be guilty unless there is evidence that he knowingly permitted the activity. There must be evidence of that. If a hunt crosses his land, that does not mean that he permitted it to do so or that he knew that it was doing so. He must be aware of that and have that knowledge. The hon. Member for Gainsborough stated the position clearly: there must be knowledge of all the material circumstances of the offence. Unless that is shown explicitly, with an element of consent, it would not be possible to prosecute. The phrase ``knowingly permits'' is widely used in statutory offences and I shall give an example.
``It is an offence for the tenant or occupier, or person in charge, of any premises knowingly to permit the whole or part of the premises to be used as a brothel.''
Mr. Gummer rose—
Will the Minister allow me to tease out the one point that is now worrying me? I understand what he means about ``knowingly''. The real question is whether there is a separate issue concerning ``permit''. One could conceive of someone knowing that something is likely to occur and being in full possession of the facts, so ``knowingly'' would apply. What does ``permit'' consist of? What does he have to do, having been thought to ``knowingly permit'' or actually permitting? To protect himself, would he simply have to inform someone that he knows and that he did not intend to permit, or would he have to take some other action? Would that action be connected with his ability to take it? For example, if there were a lot of people around and he could, therefore, take action, would that be necessary? If he were not present, would he have to put himself in a position to take action? It is a difficult connection to make.
The right hon. Gentleman raises a complex issue. There is the question of what someone is required to do to prevent being prosecuted and there is the question of what someone would be wise to do to ensure that there is absolutely no risk of ever being prosecuted. Those could be two entirely different matters. If someone wishes to exercise the level of caution that many of us might wish to exercise, he could put up signs, write letters or talk to the police and make it clear that he does not give permission. However, if he does none of those things, it is still for the prosecution to prove that he knowingly permitted.
What amounts to permitted? Permission can be expressed or implied, formal or informal, written or unwritten. It is for the prosecution to show that it existed. It will be much more difficult to show implied permission than express permission because the prosecution would have to produce evidence of the former. Likewise, it will be more difficult to show informal permission than to show formal permission because there will be a lack of evidence. There is great protection for people in rural areas about whom the right hon. Gentleman and I are concerned. The prosecution must always have evidence to prove its case beyond reasonable doubt.
The safeguards exist; I have emphasised throughout our debate that the phraseology is not a risk, but a safeguard. To change it would reduce the safeguards.
The argument alludes to a point that was made on a previous amendment. The Minister will be aware of my view that this is probably one of the key areas in which the law will be tested. He will presumably confirm that the question of coercion again arises. He need not repeat his points, but interpretation of the Bill is likely to come under scrutiny with repeated test cases around the country. Various precedents will be set which may undermine the intention of this part of the Bill.
I hear what the hon. Gentleman says; the Committee will have to take a view. I urge the hon. Member for Aylesbury to withdraw his amendment.
This debate has featured a thought-provoking dialogue between my right hon. Friend the Member for Suffolk, Coastal and my hon. Friend the Member for Gainsborough, which has teased out a number of concerns that people outside the Room feel about the drafting of the schedule.
I have been at least partly reassured by the Minister's response, as have some of my hon. Friends, and I accept that the intention in the Bill is not to put people in fear or at risk of prosecution if they take sensible steps. My reservations about the Minister's reassurance boil down to the fact that he expressed too great a faith in the good sense of the courts in placing sufficient weight on the need to ensure that people outside this place understand the nature of the obligations that this new criminal law will impose on them.
During the Minister's response, he seemed to be acting as a good disciple of the late Lord Denning, whom I recall saying during his Dimbleby lecture many years ago that if someone must be trusted, let it be the judges. It is not enough to utter the fine and dandy phrase that the courts are used to interpreting legislation. We have the responsibility to ensure that people outside Parliament understand the nature of the new law that we are enacting.
I said at the start of our exchanges that the amendments were probing, and I do not intend to press them to a vote. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Further consideration adjourned.--[Mr. Mike Hall.]
Adjourned accordingly at seventeen minutes past Seven o'clock till Thursday 1 February at fifteen minutes past Ten o'clock.