Clause 5 - Advertising: defences

Tobacco Advertising and Promotion Bill [Lords] – in a Public Bill Committee at 5:45 pm on 9 May 2002.

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Photo of David Ruffley David Ruffley Conservative, Bury St Edmunds 5:45, 9 May 2002

I beg to move amendment No. 23, in page 3, line 1, leave out

', and had no reason to suspect,'.

Photo of Mr Peter Pike Mr Peter Pike Labour, Burnley

With this it will be convenient to take the following amendments: No. 24, in page 3, line 7, leave out

', and had no reason to suspect,'.

No. 25, in page 3, line 11, leave out

', and had no reason to suspect,'.

No. 26, in page 3, line 23, leave out

', and had no reason to suspect,'.

Photo of David Ruffley David Ruffley Conservative, Bury St Edmunds

These are probing amendments. They are intended to ventilate the important issue of what is meant by ''knowing''. Knowledge is at the heart of the clause. It is not good enough to say that all members of the Committee know the common-sense meaning of the word ''know'' and what knowledge is. If only legislation were that simple. Unfortunately, legal text books are littered with definitions of ''know''.

I will cite an example to show why we are so keen to explore and expose what the word might mean in the clause and how a court might interpret it. Some newsagents may be at risk of committing an offence when selling magazines that, for the sake of argument, may have been imported from abroad and be wrapped in cellophane, so that it is not easy for the newsagent to read or inspect them. The newsagent will now know that such a magazine contains a tobacco advertisement that is in breach of the law. Under the terms of the clauses that we have discussed, the newsagent would be committing an offence by so doing, because he or she would be distributing such an advertisement. How can we sensibly assess the plausibility or the watertight nature of the clause without discussing what knowledge constitutes?

The amendments allow us to have an interesting discussion of the concept. I do not want to go into too much detail, but it is important that we all understand that the criminal offence provided for in clause 2 is essentially one of strict liability. Many criminal offences rely on mens rea, which means intent, recklessness or negligence. Some jurists do not think that mens rea should include negligence, but for the sake of argument, most people treat those three heads

of fault or culpability as the constituent elements in any offence. The Bill does not provide for a requirement to prove any of those on the part of the distributor to whom I referred in my example. It is not necessary because this is a strict liability offence, which is why we have clause 5. It is a standard part of legislative procedure in this Parliament that—[Interruption.] I see my Whip waving to me. I fear that matters in the Chamber may cut short my remarks.

The key point about the clause is that it provides a statutory defence, which is a time-honoured way to limit the otherwise over-arching and broad ambit of a strict liability criminal offence. The statutory defence is, therefore, important. I fear, however, that the defence in the clause is defective compared with the much more detailed statutory defences found in other comparable pieces of legislation. I have the Food Safety Act 1990 in mind, which is an important precedent. I wish to explore why the excellent and detailed provisions for statutory defences in that admirable Act were not used when drafting the Bill. It would have assisted its efficacy considerably if the statutory defence had been detailed more thoroughly.

I shall make an analogy and draw the Committee's attention to the statutory defence in the 1990 Act, which refers to several specifics. For example, to take advantage of a defence, an accused person—generally a food seller—who sells adulterated or contaminated food would not know that the food was adulterated. That is analogous to the situation that I outlined earlier in which a newsagent sells a publication that includes an advertisement that breaches the Bill's provisions. What is the extent to which such a distributor would be culpable and subject to prosecution?

The Food Safety Act 1990 sets out requirements that if the accused seeks to take advantage of the statutory defence, he or she must show that reasonable steps were taken to put himself or herself on notice about the adulteration of the food. Why is there not a

more detailed and specific analysis of what would constitute a statutory defence for an individual charged under the Bill? At the moment, we have only knowledge—[Interruption.] Does my hon. Friend the Member for Spelthorne wish to intervene?

I could go on, but I shall draw my contributions to a close.

Photo of Yvette Cooper Yvette Cooper The Parliamentary Under-Secretary of State for Health

The problem with the amendments is that they would allow an ostrich defence for a person who closes their eyes to the likelihood that they are involved in a tobacco advertisement and, therefore, avoids taking responsibility for something about which they should have reasonably known.

The hon. Gentleman referred to the Food Safety Act 1990. Interestingly, section 22(b) of that Act contains a provision on advertising for sale food that is unfit for human consumption. A person who does that has a defence if he

''did not know and had no reason to suspect that''

the publication of the advertisement would amount to an offence. That provision uses exactly the same words as the Bill. It is right that those words are in the Bill to ensure that people take responsibility where they should, rather than ducking out of the responsibility.

The Bill was amended in another place so that a person who is charged with an offence will not have to prove any element of their defence, but will instead have the less onerous obligation to produce credible evidence to support their alleged defence. That should ease the hon. Gentleman's concerns and, therefore, I oppose the amendments.

Photo of David Ruffley David Ruffley Conservative, Bury St Edmunds

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 ordered to stand part of the Bill.

Further consideration adjourned.—[Jim Fitzpatrick.]

Adjourned accordingly at six minutes to Six o'clock till Tuesday 14 May at half-past Ten o'clock.