Schedule 3 - Hunting with Dogs: Supervision

Hunting Bill – in a Public Bill Committee at 10:15 am on 8th February 2001.

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Photo of Edward Garnier Edward Garnier Shadow Attorney General 10:15 am, 8th February 2001

I beg to move amendment No. 50, in page 20, line 21, leave out `prove' and insert `show'.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

With this it will be convenient to take the following amendments: No. 106 in page 20, line 21, leave out `prove' and insert `claim'.

No. 107, in page 20, line 24, at end insert—

`( ) The prosecution must then prove that the person charged with the offence was not stalking a fox, hare or rabbit and the conditions in this paragraph were not met.'.

No. 108, in page 21, line 11, leave out `prove' and insert `claim'.

No. 109, in page 21, line 13, at end insert—

`( ) The prosecution must then prove that the person charged with the offence was not hunting rodents and the conditions in this paragraph were not met.'.

No. 110, in page 21, line 23, leave out `prove' and insert `claim'.

No. 111, in page 21, line 24, at end inset—

`( ) The prosecution must then prove that the person charged with the offence was not retrieving a rabbit or hare which had been shot.'.

No. 112, in page 21, line 27, leave out `prove' and insert `claim'.

No. 113, in page 21, line 31, at end insert—

`( ) The prosecution must then prove that the person charged with the offence was not searching for an animal which had been released from captivity or confinement, and the conditions in this paragraph were not met.'.

No. 114, in page 21, line 45, leave out `prove' and insert `claim'.

No. 115, in

`( ) The prosecution must then prove that the person charged with the offence was not searching for an animal which the accused believed was or might be seriously injured, and the conditions in this paragraph were not met.'.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

Amendment No. 50 stands in the name of my hon. Friend the Member for Aylesbury, and I believe that my hon. Friend the Member for Gainsborough (Mr. Leigh) wishes to draw the Committee's attention to his amendments Nos. 106 to 115. However, all the amendments permit discussion of the burden of proof.

You will remember, Mrs. Roe, that on a previous occasion I drew to the attention of the Committee, if not that of the right hon. Member for Cardiff, South and Penarth (Mr. Michael), who does not appear to be listening, the broad outline of my case. Having done so, I do not want to take up a great deal of time expanding on it, as I know that the right hon. Gentleman will have read my earlier remarks, even if he is not listening now.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

On a point of order, Mrs. Roe. The right hon. Member for Cardiff, South and Penarth complained that he could not hear, and now he is chatting. Will he please listen to my hon. and learned Friend the Member for Harborough?

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

The right hon. Gentleman has heard the complaint.

Photo of Alun Michael Alun Michael Labour/Co-operative, Cardiff South and Penarth

On a point of order, Mrs. Roe. It is fair to point out that if we drew attention to the chatting at various times by the hon. Member for Gainsborough, Hansard would be full of references to him, which is perhaps what he wants.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

It would be helpful for all members of the Committee if the chatting ceased.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

Let the speaking begin.

The amendments would place on the prosecution the onus to prove that an offence had been committed. The Bill provides for exceptions to the general offence of hunting a wild animal with a dog, but those are restricted and would reverse the burden of proof because it is for the defendant to prove that his conduct fell within one of the permitted exceptions. The amendments would provide for the same exceptions to the general offence, but in a way that would impose the burden of proof on the prosecution, not the defendant.

The Bill provides for a range of exceptions to the general offence of hunting a wild mammal with a dog set out in paragraph 1. However, those exceptions are naturally restrictive because they reverse the burden of proof. The onus is on the defendant to show that his actions were consistent with the defences provided in paragraphs 7 to 11 rather than on the prosecution to show that they were not.

It is a general principle of English law that a defendant is innocent until proven guilty. It is for the prosecution to prove guilt beyond reasonable doubt. The reversal of the burden of proof means that a person could be convicted of an offence, even if there were reasonable doubt as to whether he fell within one of the exceptions. The burden of proof is not generally reversed under criminal law unless there is good reason to do so. In this example, there is no reason to amend the burden of proof and that is especially unfair because the definition of the primary offence is so vague.

On a previous occasion, Mrs. Roe, I drew your attention to remarks made by the European Court of Justice in relation to the reversal of the burden of proof. I shall not repeat them, but I invite the Committee to read columns 117 to 123 of Hansard for 25 January, when I set out the arguments that I would have made this morning. I hope that that is convenient for members of the Committee, whom I hope have studied my comments. Rather than burden the Committee with repetition, which offends the hon. Member for Worcester (Mr. Foster) and is not something in which I would wish to indulge, I conclude on the understanding that the Committee has taken my arguments on board.

As a matter of courtesy, I should explain that I have a long-standing constituency engagement that requires me to catch the 11.25 from St. Pancras. I hope to be back this afternoon to hear the Parliamentary Secretary's winding-up speech, but I apologise to any other members of the Committee who wish to speak either for or against these amendments. My absence is not intended as a discourtesy to them.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

I shall speak to amendments Nos. 106, 108, 110, 111 and 113 to 115. They relate to the problem of reversing the burden of proof, which is an interesting issue that we must discuss because it is central to the Bill.

The Bill provides for the accused person—presumably halfway through the trial—to prove that they were not committing an illegal act. At page 20, lines 20 to 24, the Bill states:

``It is a defence for a person charged with an offence under paragraph 1 to prove that''—

I emphasise ``prove''—

``(a) the conduct to which the charge relates consisted of stalking a fox, hare or rabbit, and

(b) the conditions in this paragraph were met.''

That places the burden of proof on the shoulders of the accused, so that it will be up to them to prove that they were not hunting a wild mammal with a dog, but merely stalking or flushing out a fox, hare or rabbit.

In other words, that person is guilty until they can prove themselves innocent—yet it has rightly been traditional in this country to assume that people are innocent until proven guilty. The amendments would not change the essence of the Bill by making it easier to hunt with dogs, but would simply re-establish the principle of innocent until proven guilty.

It is important in Committee to develop some sort of thread to one's remarks. The point that I have tried to make time and again is that the Bill is strong enough to ensure that organised hunts will stop, because it will be impossible to maintain them. That would remain the case even if the amendments that I have tabled with my hon. and learned Friend the Member for Harborough were accepted.

I believe that all members of the Committee want to stop unpleasant activities such as hare coursing that is carried out without permission, and the Bill will make that quite easy to deal with. If it is not too derogatory, I refer to people who take part in such activities as white van offenders. They leave the big cities and go to the countryside without permission to carry out unpleasant acts of coursing and the like.

The aim of my speeches over the past two or three weeks has been to protect the honest countryman who is simply trying to go about his business. Gamekeepers and most country people out alone or in small groups do a proper job. Even if they fall foul of the Bill and commit an offence, it will hardly be the great crime of the century if a gamekeeper's dog hunts and kills a rabbit, hare or fox.

Although I may not like it, I have to accept that the House made a decision to ban organised hunting. I am therefore trying to ensure that the Bill has a relatively light touch and that, in stopping organised hunting as Labour Members wish, it does not place too much of a burden on people who find themselves in the dock.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

On the subject of putting people in the dock, this morning I received a telephone call from Mr. Nodder, the representative of the National Gamekeepers Organisation, whose briefing we referred to earlier in our proceedings. He told me that he is very worried that gamekeepers going about their legitimate business—for example, deliberately setting out with terriers to find and kill wild mammals, especially vermin—will become enmeshed in criminal proceedings. The right hon. Member for Berwick-upon-Tweed (Mr. Beith) took up that issue in previous debates. Will my hon. Friend focus on the likely plight of employed gamekeepers?

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough 10:30 am, 8th February 2001

I hope to do so. I want to ensure, without being too legalistic, that in such a trial of a gamekeeper or other countryman, the burden of proof would be firmly on the prosecution at all times and that the trial would be as simple as possible.

We know that there are various exceptions in part II. In simple terms, it is a defence for a person charged with such an offence to prove that he was stalking or flushing out, engaged in rodent control, retrieving game or recapturing or rescuing animals. Unlike members of the Committee, people in general probably do not realise that such activities are not only lawful, but beneficial. They are good pursuits that help animals and create a balance in the countryside. Nor is it generally recognised that the honest countryman who is taken to court will have to prove his innocence. He will have to prove that he was engaged in such activities, albeit in the light of the balance of probabilities, which in my opinion is unfair.

If amendment No. 110 were accepted, it would be sufficient for the defendant to ``claim'' that he was engaged in such activities, which are lawful, good and benefit the countryside. If amendment No. 111 were accepted, the prosecution would have to prove

``that the person charged with the offence was not retrieving a rabbit or hare which had been shot.''

Similarly, if amendment No. 113 were accepted, the prosecution would have to prove

``that the person charged with the offence was not searching for an animal which had been released from captivity or confinement, and the conditions in this paragraph were not met.''

The Parliamentary Secretary will doubtless say that the amendments are not drafted properly, but I claim no great expertise in this part of the law—I am simply trying to do my honest best. She will probably point to precedents in reversing the burden of proof halfway through a trial and placing it on the defendant.

For example, if, on stopping a van being driven around Canary wharf, the police find explosives in the back, under the terms of the Prevention of Terrorism Act the driver must prove that he did not intend to commit a terrorist act. However, terrorism is a serious and reprehensible activity that is dangerous to society, for God's sake. We in this country value and love civil liberties so we put the burden of proof on the prosecution, but we also take the view that a person caught driving around Canary wharf in a van full of explosives must give a good reason why they do not intend to blow the place up. In such a case, it is not necessary for the police to prove intent.

If one's dog chases and kills a rabbit, it is hardly the crime of the century. Why, therefore, should a gamekeeper or countryman on a modest salary have to hire a lawyer to prove his innocence? It should be for the prosecution to prove guilt. I freely admit that that might constitute a small burden on the prosecution, but it is one that it can bear.

Photo of John Maples John Maples Conservative, Stratford-on-Avon

Did not it become to necessary to change the law in respect of terrorism because it was proving almost impossible to secure convictions? It is difficult to think of a legal explanation for driving around a van full of explosives, but in this case we are dealing with exceptions that are not only legal but desirable and which are encouraged in the interests of animal welfare and management of the countryside. The distinction seems perfectly clear. When it is impossible to think of any reasonable or legal explanation for doing something—such as carrying explosives in a car—it is reasonable to put the burden of proof on the defendant. However, we are discussing an activity that is not only legal and reasonable, but should be encouraged.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

My hon. Friend explains very well the point that I have been trying to make. I accept that people want to stop hunting with dogs under the terms of the Bill, but the so-called exceptions are not exceptions because they go to the heart of the Bill and countryside activities. Rodent control is a burden placed on landowners; they have no choice. A landowner could be hauled before the beak for not engaging in rodent control. Under the Bill, he could be hauled before the beak for undertaking rodent control in the wrong way.

The proposal goes to absurd and ridiculous lengths. I am sure that the majority of hon. Members, who have a logical and justified view and a sense of balance in these matters, will be able to rely on the early parts of the Bill to achieve their purpose. This part of the Bill was drafted not by the Government, but by Deadline 2000. I know why it was drafted in this way and it is unduly onerous.

Photo of Alan Beith Alan Beith Liberal Democrat, Berwick-upon-Tweed

I want to draw attention to an even more alarming possibility for someone who thinks that he will be brought before a court for engaging in a legitimate activity; for example, the goatherd to whom I have referred who needs a dog to locate and count the wild goats in the Cheviots. If someone takes out a malicious prosecution against him because he is thought to be interested in a bit of fox pursuing, his solicitor may tell him that the safest course is to say that he was after rabbits, was carrying a gun and intended to shoot them fresh from cover, because the Bill does not provide a safe defence against the innocent activity in which he was engaged—counting goats.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

It would be ridiculous if it were safer for gamekeepers and honest countrymen to walk around the countryside carrying shotguns. We do not want to encourage that.

The burden of proof is important and, in our criminal law, it has always been placed firmly on the prosecution, except in particular circumstances. Viscount Sankey, the former Lord Chancellor, called it the golden thread in Walmington v. DPP. He said that

``no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England''

No attempt to whittle it down can be entertained. We should not allow prosecutorial convenience or laziness to sway that basic principle of English law. I urge hon. Members, particularly Labour Members who are genuinely concerned about civil liberties, to consider Viscount Sankey's fine phrase, which is a beautiful part of the civil liberties of our nation.

We are discussing a matter that could be serious for some people. They may face fines of £5,000, a life ban on keeping dogs—making it impossible for them to do their job—having to surrender any horses, acquiring a criminal record and so on. The matter is serious.

If hon. Members are not satisfied with the argument of the common law, the European Court of Human Rights and its series of firm judgments have made it clear that it is normally not wise to impose a reversal of the burden of proof. Dare I say that the matter is dealt with in ``Archbold'' in paragraphs 16-77 and 16-78?

Article 6(2), which we debated in the House in terms of human rights—this is where the Parliamentary Secretary is right—

``does not prohibit rules which transfer the burden of proof to the accused to establish a defence, provided the overall burden of proving guilt remains with the prosecution. . . . Neither does Article 6(2) necessarily prohibit the operation of presumption of law or fact. . . . However, any rule which shifts the burden of proof, or which applies a presumption operating against the accused, must be confined within reasonable limits.''

I ask members of the Committee to think through the matter and, given the trivial nature of the offence, consider whether it is reasonable to reverse the burden of proof in all the circumstances. I am not sure that it is.

The Parliamentary Secretary has been very reasonable in the past and acknowledged on Tuesday that we had made some valid arguments. I hope that she will at least be prepared to re-examine this point; I cannot ask for more. If she does, many people in the countryside will breathe a sigh of relief and come to the conclusion that the Government are prepared to produce a Bill that does not impose too onerous a burden on people who are simply trying to carry out an honest job in an honest way in the English countryside.

Photo of John Maples John Maples Conservative, Stratford-on-Avon

I want to reinforce a few of the points made so well by my hon. Friend the Member for Gainsborough, but to approach them from a slightly different perspective.

The Parliamentary Secretary and her Home Office colleague have repeatedly said, ``This is Deadline 2000's draft. Ask them about all the details.'' However, we are talking about an issue of public policy; about whether the burden of proof should be reversed in a particular case. Parliamentary Secretaries cannot get out of their responsibility for that aspect of the amendments by saying, ``This is somebody else's draft. You will have to ask them why falconry is in or out or why rodent control on somebody else's land is in or out.'' There is a fundamental difference when we are talking about creating a rare exception to the principle of law that the burden of proof is on the prosecution.

I hope that the Parliamentary Secretary will take that point seriously and recognise that the Government are responsible for explaining why it is necessary in this Bill—which, as my hon. Friend the Member for Gainsborough says, creates, in many circumstances, relatively trivial offences—to breach that principle and reverse the burden of proof. No one is claiming that doing so is unique, but in other such cases, it has been for something that is very serious and where it would be almost impossible to prove otherwise.

The Bill is designed to ban organised hunting. That was what the House voted for, and we keep coming back to it. The ban includes beagling, hare coursing, foxhunting, harriers and so on. We all know an organised hunt when we see it, and it is not a goatherd in the Cheviots walking around with his dog or somebody taking their dog for a walk in rural Warwickshire, where I live. We are clear about that distinction. We getting into difficulty because the Bill attempts to go further than banning organised hunting to the banning of other activities beyond the border between what Deadline 2000 wants to promote and what is, on the other hand, not only legal but desirable. In the case of rodent control, there is even a legal obligation on a property owner.

All the exceptions are concerned with the protection of livestock and crops, which farmers are entitled to do. They include getting food by hunting rabbits or hares, falconry—I do not know why that is included—rodent control, retrieving wounded game, recapturing escaped animals and rescuing wounded animals. All of those are not merely technical exceptions to the ban on hunting, but desirable ends in themselves. They are proper and desirable uses of dogs by people who are legitimately engaged in managing their property or wildlife in the countryside.

The distinction that the Bill draws is not between something that is bad and something that ought to be criminal, but between something that is positively good and to be encouraged and something on the other side of the burden of proof that would be a criminal offence.

The effect of reversing the burden of proof is that a person such as the goatherd in the Cheviots mentioned by the right hon. Member for Berwick-upon-Tweed could be convicted on the balance of probability. He could be prosecuted for having been caught with a gun after chasing and killing a rabbit—which might be fairly easy to establish—say that he was doing something else that is covered by the exceptions in the Bill and then have to prove it. Admittedly, the standard of proof that he would have to achieve is only the civil standard of the burden of probability. However, if the jury or the magistrate decided that there was a 50:50 probability—in that he was as likely to be guilty as not—they would convict him because he had failed to establish the defence. Not only does the Bill try to establish a borderline—it is a very fine line—between desirable activities to be encouraged and criminal activities, but someone could find himself on the wrong side of it on the civil standard of proof. That is not only perverse but positively wrong.

I do not think that hunting should be banned, but even those who do—including most Labour Members—mean organised hunting, and we all know what that is. They cannot seriously be saying that the borderline between what the goatherd in the Cheviots is or is not doing is of enormous public importance and involves an activity so awful that it should be banned by criminal law. We never intended to get into such territory.

If the large numbers of right hon. and hon. Members who took part in the debate on Second Reading and voted on it but are not on the Committee knew that such criminal offences were being created and that, moreover, the burden of proving innocence of those offences was being reversed and placed on the defendant, they would be amazed, as would all those out in the country who write to us asking for hunting to be banned. We are talking about the Government being prepared, in relatively trivial circumstances, to reverse a fundamental principle of English common law.

Photo of Lembit Öpik Lembit Öpik Liberal Democrat, Montgomeryshire 10:45 am, 8th February 2001

The proponents of the schedule are aware of the need to find a balance. Let us remember that gun packs are not being banned. The schedule seeks to draw a distinguishing line, which is still vague at the moment. Does the hon. Gentleman agree that there is no great sacrifice of principle in taking on board the burden of proof argument that he is advancing, but there is a sacrifice of justice if we do not?

Photo of John Maples John Maples Conservative, Stratford-on-Avon

The hon. Gentleman puts the argument cogently. I am hoping that the Parliamentary Secretary will be able to give some ground in that respect.

I am a lapsed lawyer, and it is a long time since I had to engage in this sort of stuff. If one asked most non-lawyers—or, indeed, schoolchildren—for an illustration of the fundamental principles of English criminal law, the first thing that would come to their minds would be the principle that one is innocent until proved guilty. It is the job of the prosecution or the state to prove that one is guilty before one is punished or deprived of one's liberty. Yet the Government are prepared to reverse that principle in relatively trivial circumstances.

My hon. Friend the Member for Gainsborough has quoted from ``Archbold''. I shall quote from a former Lord Chief Justice, who said:

``The common law was fiercely resistant to a burden of proof being placed on a defendant.''

When Parliament did so

``it had to use clear language if it was to achieve its purpose.''

The European Court of Justice recently stated:

``The reverse burden of proof is simply not lawful, unless there is a necessity that drives the imposition of it.''

It will be rich irony if the Bill fails on one count or another as a result of the European convention on human rights. We wait to see whether it does. We resisted the introduction of the convention.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

The Bill's supporters must take on board that point about the convention. I am not giving away secrets, but many people are actively thinking of taking this issue to the European Court. If the Bill's supporters push their boat out too far, they will make it even more likely that the boat will be stranded on the beach of European law. If they want the Bill to survive, they should beware.

Photo of John Maples John Maples Conservative, Stratford-on-Avon

My hon. Friend makes a good point. There are at least two bases on which the proposed legislation could be challenged under the European convention on human rights. One is the way in which the law bans hunting, and whether that is an intervention in people's liberty and use of property. That fundamental aspect of the Bill may be challenged. The Government appear to have come to the conclusion that the Bill is not vulnerable to a challenge on those grounds; the Home Secretary has at least made a statement to that effect.

We are discussing another aspect of the Bill that may be challenged. It is a subsidiary, rather fundamental, aspect of the Bill: whether the burden of proof is on the defendant or the prosecution in subsidiary and incidental offences. We can refer to the fundamental principles of common law, the Lord Chief Justice and countless cases in ``Archbold''. I am glad that my hon. Friend the Member for Gainsborough brought ``Archbold'' along, so that we can all refer to it—[Interruption.].

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

Order. There is too much chatting going on. I cannot hear what the hon. Gentleman is saying. If hon. Members wish to have a conversation, perhaps they should have it outside.

Photo of John Maples John Maples Conservative, Stratford-on-Avon

I am grateful, Mrs. Roe. We are discussing not what we have been arguing about a great deal in Committee—whether hunting in one form or another should be illegal—but subsidiary and somewhat incidental offences that relate to a fundamental principle of criminal law. The proposal has been resisted for hundreds of years by common law, by the courts and by Parliament, except in exceptional circumstances. I shall be interested to see whether the Parliamentary Secretary argues that this is an exceptional case, which therefore requires the burden of proof to be reversed. Such a reversal has been resisted also by the European Court of Justice and therefore, by implication, in the European convention on human rights. Arguments of precedent and principle seem to stack up overwhelmingly on our side of the argument. For the Government to prove that this situation is so different and so important that the burden of proof must be reversed seems to me an impossible task, but I wait to see whether the Parliamentary Secretary can do it.

We are not talking about organised hunting. All right; we can ban organised hunting. We all know an organised hunt when we see it. That is not what these offences and exceptions are about. They are ingredients of the offence. We are defining, in what the Bill describes as exceptions, the ingredients of an offence, which have to be proved. There is not an offence if one is flushing out game for the purposes of falconry. Therefore, the prosecution should have to prove the whole offence. The exceptions are really areas to which the offence does not extend. It is not as though there are exceptions if one commits the offence because one is drunk, because one is eight years old or because one is made to. In the circumstances that we are debating, it is not an offence to use one's dog to flush out a rabbit for the purpose of shooting. However, the Bill makes it an offence unless one can prove that one was doing so.

Some fundamental points are at stake. We shall make bad law if we reverse the burden of proof in such somewhat trivial circumstances. We will draw a dividing line not between what is wrong but not criminal on the one hand and what is wrong and criminalised by Parliament on the other, but between what is wrong and to be criminalised on one hand and what is legal, desirable and to be encouraged on the other. In creating fine lines between right and wrong, we should not put the burden of proof on the defendant, who will often be a country person—a farm labourer, shepherd, goatherd or gamekeeper—who does not have the means to go to lawyers or the ability to get good legal advice and legal representation to make what may turn out to be a complicated point in court.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

We must emphasise this point. I intended to do so, but I did not; my hon. Friend is doing so very well. I hope that the Parliamentary Secretary will listen and try to reply to it. Traditionally, the burden of proof has been reversed when the accused has committed an offence of carrying explosives, of murder or of whatever it is that is wrong. In those circumstances, the accused can claim, ``I committed the offence, but it was a mistake'', that it was a matter of automatism, that the victim gave her consent, that drink was to blame or that his age was a factor. However, the Bill provides for different circumstances, which makes it a complex legal matter that must be considered in the other place. When one is stalking, retrieving an animal or any of the other so-called exceptions, one is not committing an offence. That is a powerful argument.

Photo of John Maples John Maples Conservative, Stratford-on-Avon

I hope that the Parliamentary Secretary will respond to the amendments in the spirit in which they were tabled. We are being invited to pass legislation that breaches a fundamental principle of English law that has been around for hundreds of years. Indeed, exceptions to that rule are so rare as to prove and reinforce it. Moreover, the Bill is possibly in breach of the European convention on human rights. It would be extraordinary if we were to draw a dividing line between criminal conduct and conduct that is right—and, in the case of rodent control, conduct that is actually a legal obligation imposed on property owners—rather than between criminal conduct and conduct that is wrong but not quite criminal.

I hope that the Parliamentary Secretary will not claim that Deadline 2000 is responsible for the schedule, which is an excuse often used by Labour Front Benchers. The notes that I have seen passed to her by civil servants belie that argument. It seems to me that she, or at least her civil servants, concedes that arguing this point is a Government responsibility. It would not go the root of the Bill to concede the amendments, but it would meet a fundamental objection.

Photo of Lembit Öpik Lembit Öpik Liberal Democrat, Montgomeryshire

The issue has been highlighted and does not need to be repeated, but it is important to hear how the Parliamentary Secretary feels we could make progress. Deadline 2000 has sponsored the schedule, but the Committee is responsible for ensuring that it is workable and just. To that extent, I hope that the Parliamentary Secretary will share the Government's perspective on the issues, rather than saying, ``This is what Deadline 2000 wanted.'' I have no doubt that Deadline 2000 also wants workable legislation that is seen to be fair, although I imagine that that is a difficult issue for the Parliamentary Secretary to discuss. Nevertheless, the Government should be committed to tackling head on the challenges concerning natural justice that have been highlighted.

Photo of Jane Kennedy Jane Kennedy Parliamentary Secretary, Lord Chancellor's Department

First, I say to the hon. Member for Gainsborough that this is not a complicated legal issue. I can understand it as a non-lawyer, and I hope to be able to explain it to the Committee. One does not need a fine legal brain to understand this section of the schedule.

My reply to the hon. Members for Stratford-on-Avon (Mr. Maples) and for Montgomeryshire (Mr. Öpik) is that hon. Members who support schedules that were not supported by the House are wrong to constantly chide the Government for the terms in which we discuss the schedule. It was a decision of the whole House to support the schedule. Because Opposition Members happen to be the ones advancing the arguments against the Bill as decided by the House, they are wrong to suggest that all their opponents are on the Government Benches. This is a cross-party matter. In the Committee of the whole House, schedule 3 was supported by hon. Members from all parties.

Photo of Alan Beith Alan Beith Liberal Democrat, Berwick-upon-Tweed 11:00 am, 8th February 2001

I feel strongly about what the Parliamentary Secretary has just said, because it is most unfair. Had the schedule for which I voted in the Committee of the whole House been accepted instead, I would still have expected the Minister and her civil servants to comb through it to ensure that it would achieve its intended effect, and to table relevant amendments where necessary. Indeed, I would have expected nothing else, so she cannot criticise me and others for performing the same service in respect of this schedule.

Photo of Jane Kennedy Jane Kennedy Parliamentary Secretary, Lord Chancellor's Department

I simply wanted to put on the record that, in my opinion, criticisms of the Government's defence of a schedule that was supported by the whole House are unfair. Indeed, there are hon. Members on the Opposition Benches of the Committee who voted for the schedule.

Photo of Lembit Öpik Lembit Öpik Liberal Democrat, Montgomeryshire

I want to reassure the Parliamentary Secretary that it was not my intention to criticise her, the Government or those who proposed the schedule, which it is our purpose to discuss. My plea, as my right hon. Friend the Member for Berwick-upon-Tweed said, was simply for her to ensure that it will prove to be workable.

Photo of John Maples John Maples Conservative, Stratford-on-Avon

The Parliamentary Secretary picked up on the fundamental principles to which my hon. Friend the Member for Gainsborough and I referred. However, the fact that a Bill has secured its Second Reading does not mean that the House has agreed to every detail in it. If that were so, there would be no need for Standing Committees. We are not arguing about the Bill's fundamental principles, for which the House clearly voted—[Interruption.] Well, we are not trying to do that in this debate; we are considering points of detail. The Parliamentary Secretary seems to be saying, ``The House voted for the schedule, so we don't need to discuss it.''

Photo of Jane Kennedy Jane Kennedy Parliamentary Secretary, Lord Chancellor's Department

Absolutely not. I was simply putting my opinion on the record. We are discussing and carefully scrutinising a schedule that was supported by the whole House and, in that regard, the Committee has so far conducted itself perfectly properly.

Photo of Alun Michael Alun Michael Labour/Co-operative, Cardiff South and Penarth

As my hon. Friend said, the Committee is behaving perfectly properly, but does she note the interesting admission by the hon. Member for Stratford-on-Avon that, in previous debates, he and his colleagues have indeed tried to argue against the Bill's fundamental principles?

Photo of Jane Kennedy Jane Kennedy Parliamentary Secretary, Lord Chancellor's Department

I shall not try your patience any further, Mrs. Roe; I shall return to the substance of the amendments.

Photo of Gordon Prentice Gordon Prentice Labour, Pendle

I do not want my hon. Friend the Parliamentary Secretary to leave the issue of cross-party support for the schedule without my informing the Committee of a newsletter from the hon. Member for Southwark, North and Bermondsey (Mr. Hughes), which states:

``Liberal Democrats have concluded that hunting with dogs should be banned.''

I wonder for whom else the hon. Gentleman was speaking.

Photo of Jane Kennedy Jane Kennedy Parliamentary Secretary, Lord Chancellor's Department

As the hon. Member for Lewes (Mr. Baker) has said, Liberal Democrat members of the Committee represent all four strands of opinion, which is nothing new.

We touched on the serious matter of the reversal of the burden of proof, which I prefer to describe as the creation of a primary offence with various defences. We discussed that in one of our earlier debates, but I am glad to have the opportunity to put the position clearly on the record. We discussed that in one of our earlier debates, but I am glad to have the opportunity to put the position clearly on the record.

Amendment No. 50 would have no effect; it would make no difference. As I shall attempt to demonstrate in a moment, there are many Acts that contain the so-called reversal of burden of proof, so hon. Members are mistaken when they say that there are not many precedents. In some the word ``show'' is used and, in others, the word ``prove''. I have checked with parliamentary counsel and it appears that, in this context, the two terms are totally interchangeable. The standard of proof that an accused person has to satisfy is identical, whichever term is used. I suspect that the hon. and learned Member for Harborough is more interested in the principle of the matter than the semantics. That brings me on to the amendments tabled by the hon. Member for Gainsborough.

The first and most obvious point—this explains why I do not like the term ``reversal of burden of proof''—is that, in the Bill, as with any other criminal offence, it remains the responsibility of the prosecution to prove to the court beyond reasonable doubt, as hon. Members have said, that the accused committed the offence with which he or she is charged. Unless and until each and every element of the offence has been proved, the person remains innocent. That principle remains at the heart of English criminal law and the Bill does not depart from it.

The formulation of legislation based round a principal offence, to which there are a number of defences—exceptions as they are called in the Bill—is nothing new. Perhaps it might be helpful to give the Committee a few examples. In the Forgery Act 1861, section 34—[Interruption.]—with which hon. Members are familiar, provides that

``it is an offence for a person to acknowledge any recognizance, bail, judgment deed or lawful instrument in the name of any other person without lawful authority or excuse (the proof whereof shall lie on the party accused).''

Another example is the Sexual Offences Act 1956—[Interruption.] I am offering a wide range of examples to demonstrate that this is not a rare exception in English law. Section 47 of that Act states:

``Where in any of the foregoing sections the description of an offence is expressed to be subject to exceptions mentioned in the section, proof of the exception is to lie on the person relying on it.''

Such exceptions are to be found in relation to a number of offences in the Act, such as those, in section 14, of indecent assault and, in section 6, of unlawful sexual intercourse with a girl under 16.

Section 2(1) of the Homicide Act 1957 provides that a person who kills another shall not be convicted of murder if he was suffering from diminished responsibility. Section 2(2) provides that

``on a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder.''

There are more examples, to which I shall turn in a minute.

Photo of John Maples John Maples Conservative, Stratford-on-Avon

The Parliamentary Secretary has enumerated some very serious criminal offences; murder, indecent assault, paedophilia, rape and forgery. I have not specifically researched this, but I suspect that the reason for those exceptions where the reversal of the burden of proof was introduced was that there had been cases in which people had used that as their defence and got away with it. In subsequent legislation, the burden of proof in such circumstances was reversed. That is not so with this Bill—[Interruption.] The right hon. Member for Cardiff, South and Penarth may want to intervene on the Parliamentary Secretary. I note that since he ceased to have control over the National Assembly for Wales, it has seen sense and is having an inquiry into the matter, rather than simply accepting our legislation.

The offences cited as examples by the Parliamentary Secretary are serious and there is a reason for the exception. We have not yet tried in this case, so we do not know. If the Bill became law and people used that defence and got away with it, one could understand the Parliamentary Secretary returning to say that the law must be changed. That is not the case; she has not cited a relevant example.

Photo of Jane Kennedy Jane Kennedy Parliamentary Secretary, Lord Chancellor's Department

Let me make my point, because the Committee may be interested. Section 2 of the Chemical Weapons Act 1996 creates offences relating to the use, development, possession and so on of a chemical weapon. Section 2(6) provides that in proceedings for certain of the offences

``it is a defence for the accused to prove'' and so on. That Act was passed in 1996. I could cite many more examples. The list that I gave to the Committee illustrates how widespread the formulation is, how long established it is and that it has been used in connection with serious offences. I deliberately chose examples of serious offences to demonstrate that this is not a new-fangled device; nor is it considered lightly in law.

Photo of Alan Beith Alan Beith Liberal Democrat, Berwick-upon-Tweed

The Parliamentary Secretary has cited examples in which people seem to have carried out murder, rape and the manufacture, possession and trafficking of chemical weapons in circumstances that make them appear guilty, but for which exceptions are provided. How will people who have been legitimately engaged in country pursuits for years feel about being compared to murderers, rapists, paedophiles and traffickers in chemical weapons? Does she not realise that the offences covered in the Bill are in a totally different league?

Photo of Jane Kennedy Jane Kennedy Parliamentary Secretary, Lord Chancellor's Department

I am coming to the exceptions, but I want first to deal with some of the protestations from the Committee.

I gave the example of the Chemical Weapons Act 1996, which was enacted during the previous Parliament. All the representatives of the official Opposition in the Committee, with one or two exceptions, were members of that Parliament; not one of them voted against or spoke against the Chemical Weapons Bill.

It is worth pointing out that an offence with defences features prominently in animal welfare legislation and I now come to examples that are closer to the issue under discussion. The Deer Act 1991, the Protection of Badgers Act 1992 and the Wild Mammals (Protection) Act 1996 all contain a basic offence, which is not committed if the person concerned can demonstrate that his or her behaviour fell within the terms of a number of exceptions. Those Acts are directly analogous to the Bill.

There is a good reason for sometimes reversing the burden of proof in legislation. It generally appears when it relates to matters that are within the knowledge of the defendant. I shall give an obvious example. There are many instances in which it is unlawful to commit a certain Act, but it is lawful to do so if the person concerned has a valid licence. The requirement is placed on the person to demonstrate that he or she has that licence. That is obviously sensible because it is easier and more practicable for the person concerned to demonstrate that he or she has a licence than for the prosecuting authorities to prove that he or she does not. That principle applies to the Bill.

Hon. Members will see that the terms of the exceptions concern matters within the knowledge of the person who is hunting. For example, it is easier for someone who has been hunting with dogs to demonstrate that he or she was seeking to retrieve a rabbit or hare that had been shot or that he was acting with the permission of the landowner than for the prosecuting authorities to prove the contrary.

Photo of Lembit Öpik Lembit Öpik Liberal Democrat, Montgomeryshire

No system for licensing is included in schedule 3. I agree with much of what the Parliamentary Secretary has said, which is why the Middle Way Group thought that there should be a licensing system. Is the Parliamentary Secretary now saying that she accepts that a licensing system would be enforceable and a reasonable way forward? If so, would she be willing to consider modifying the schedule on Report?

Photo of Jane Kennedy Jane Kennedy Parliamentary Secretary, Lord Chancellor's Department

I meant the term ``licensing'' in the loosest sense of the word. In all the legislation that I have cited where the obligation is placed on the person suspected of having acted illegally to prove or show that they have not done so, the test that they must satisfy is, as hon. Gentlemen know, the civil test of balance of probability. They do not have to meet the criminal test of proof beyond reasonable doubt. That was firmly established in R v. Hunt, as reported at—

Photo of Jane Kennedy Jane Kennedy Parliamentary Secretary, Lord Chancellor's Department

I am in awe of how well read the hon. Gentleman is. He clearly sleeps with ``Archbold'' under his pillow.

The Bill is exactly the same in such a respect. The standard that the accused must meet is the balance of probability.

Photo of John Maples John Maples Conservative, Stratford-on-Avon

When I first read the proposal, I thought that it dealt with the point, but the more I think about it, the more I realise that it does not. If the prosecution succeeds in proving that a person was out with their dog and it killed a rabbit, it is then seeking to prove the exception. If the prosecution cannot prove that, it is 50:50 whether the jury or the magistrate believes it. The person would, in effect, be convicted on the basis of proof on the balance of probabilities and not beyond a reasonable doubt. That is why the principle arises; reversing the burden of proof reduces the burden of proof of all the components of the offence. Some of them have to be proved beyond a reasonable doubt, but many others—those surrounding the exception—have only to be proved on a balance of probabilities. Therefore, people could be convicted on a 51:49 split as opposed to the overwhelming preponderance needed where an offence must be proved beyond reasonable doubt.

Photo of Jane Kennedy Jane Kennedy Parliamentary Secretary, Lord Chancellor's Department

If a person were charged with the offence under the Bill and did not have one of the defences outlined in it, they would not be able to argue that defence and the court would have to make up its mind on the evidence before it.

If the amendments were accepted, a person accused of hunting could simply suggest, without adducing any evidence, that one or all of the defences applied and then leave it to the prosecution to disprove beyond reasonable doubt each and every defence suggested. That is a novel idea, and I am not aware of any similar example on the statute book.

Photo of Alan Beith Alan Beith Liberal Democrat, Berwick-upon-Tweed

How would the Parliamentary Secretary prove that her dog was seeking an injured animal at the time? When she gets to the magistrates court—indeed, after apprehension—the animal may have disappeared and gone to earth. How does she prove that her dog was seeking an injured animal?

Photo of Jane Kennedy Jane Kennedy Parliamentary Secretary, Lord Chancellor's Department

My hon. Friend the Member for West Lancashire (Mr. Pickthall) says from a sedentary position that one would be able to argue the case. For example, one would have reasonable grounds for believing that the injured animal was there. One would be able to show what animal the dog was chasing and one could make an argument, but it would be for the court to decide on the merits of each case.

The hon. Member for Gainsborough—and, to an extent, the hon. Member for Stratford-on-Avon—prayed in aid the European convention. It has been suggested in some quarters that, because of the so-called reversal of the burden of proof in it, the Bill is not compatible with the European convention. I reject that view absolutely. My right hon. Friend the Home Secretary has signed a statement that, in his view, the Bill is compatible with the ECHR. Clearly he would not have signed such a statement if he took a contrary view. It will come as no surprise to the Committee that I share his view. Under the terms of the Human Rights Act 1998 our courts are required to interpret all legislation in accordance with the ECHR. There appear to be no problems with the myriad pieces of legislation that contain the reversal of the burden of proof, and I see no reason why the Bill should present any difficulties if it becomes an Act.

Given the nature of the activity with which the Bill deals, the formulation of the offence and its defences seem entirely appropriate. As I hope I have been able to demonstrate to members of the Committee, it is not an unusual formulation. It appears throughout our legislation; particularly in animal-related Acts. Therefore, it would not be right to accept the amendments in the names of the hon. Members for Gainsborough and for Aylesbury. Accordingly I invite the hon. Member for Aylesbury to seek to withdraw the amendment.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

I am disappointed by the Minister's answer, particularly as she seemed to be reading something that had clearly been written in advance of my remarks this morning. Many of us have been Ministers and I know that Ministers have to rely on advice.

The purport of the Minister's speech was that there are precedents for reversing the burden of proof, but as I pointed out several times, I am aware of that. As my hon. Friend the Member for Stratford-on-Avon argued extremely well, the burden of proof has been reversed in cases where the prosecution has proved, for example, that a murder has been committed, that an explosion has occurred, that unlawful sex has taken place and even that a badger has been killed. In turn, the defence has argued that the incident in question was an accident or an honest mistake, that there was provocation, duress, consent on the part of the alleged victim, lack of intent or lack of specific intent due to drink.

Had the Minister been listening, she would know that we accept that, over the years, Parliament and the courts in their wisdom have concluded that if the prosecution proves the core element, the defence must establish proof in arguing that, say, a rape victim in fact gave consent, or that murder was in fact manslaughter because there was no intent.

The case before us is entirely different. The core offence, to which there are exceptions, is not in fact an offence at all. For matters such as stalking, rodent control and retrieving an animal, there should be a different and novel procedure. The Parliamentary Secretary failed to address the point that such activities are on the bottom rung of criminal behaviour. Even deliberate hunting is surely low on the list of criminal activities. Moreover, such activities are welcomed by society. No one welcomes murder, rape, burglary, and the running over of pedestrians, so society takes the view that the exceptions must be proved in such cases. However, society requires landowners to engage in activities such as rodent control.

The Parliamentary Secretary has failed to answer our questions, so in the time available to us we must press the amendment to a vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 18.

Division number 8 Adults Abused in Childhood — Schedule 3 - Hunting with Dogs: Supervision

Aye: 7 MPs

No: 18 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Photo of John Bercow John Bercow Shadow Spokesperson (Home Affairs)

I beg to move amendment No. 52, in page 20, line 22, leave out `fox, hare or rabbit' and insert `wild mammal'.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

With this it will be convenient to discuss the following amendments: No. 122, in page 20, line 22, leave out `or rabbit' and insert

`rabbit, goat or other wild mammal'.

No. 53, in page 20, line 27, leave out `fox, hare or rabbit' and insert `wild mammal'.

No. 63, in page 20, line 42, leave out `fox, hare or rabbit' and insert `wild mammal'.

No. 88, in page 21, line 23, leave out `rabbit or hare' and insert `wild mammal'.

No. 91, in page 21, line 28, leave out `an animal' and insert `a wild mammal'.

No. 92, in page 21, line 36, leave out `animal' and insert `wild mammal'.

No. 93, in page 21, line 40, leave out `animal' and insert `wild mammal'.

No. 95, in page 21, line 46, leave out `an animal' and insert `a wild mammal'.

No. 101, in page 22, line 5, leave out `animal's' and insert `wild mammal's'.

No. 102, in page 22, line 8, leave out `animal' and insert `wild mammal'.

Photo of John Bercow John Bercow Shadow Spokesperson (Home Affairs)

I am particularly grateful to have such a long time in which to develop my argument before the conclusion of this morning's business—[Laughter.]

The purpose of the amendments is to change the exceptions to the general offence for which the Bill provides to cover any wild mammal, with the exception of the defence of hunting rodents. As you, Mrs. Roe, and the Committee alike will be aware, as it stands, the Bill will apply the exceptions only to the stalking or flushing out of foxes, hares and rabbits.

Photo of John Bercow John Bercow Shadow Spokesperson (Home Affairs)

I have never been briefer.

It being twenty-five minutes past Eleven, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at Two o'clock.