Clause 17 - Defences: burden of proof

Tobacco Advertising and Promotion Bill [Lords] – in a Public Bill Committee at 10:30 am on 14 May 2002.

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Question proposed, That the clause stand part of the Bill.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I will kick off this morning's proceedings by welcoming you to the Chair, Mr. Winterton and to the later stages of the Bill. I echo your comments that we should make positive, constructive progress. The Opposition have wanted to do so for the past three sittings. You will notice that, although we are about to debate clause 17, we shall then revert to clause 6. I fear therefore that we have made positive, constructive progress on only five clauses out of 22, which reinforces what the Opposition said at the outset: that our proceedings in Committee have been curtailed too severely.

The Minister promised to consider various clauses that we shall revisit on Report and that emphasises the fact that there are still parts of the Bill with which many people are unhappy and that require far greater scrutiny. Otherwise, it will see its next airing in the courts—something that we should avoid. We must make the Bill as explicit as possible.

It would be useful to receive clarification from the Minister on clause 17. It is a later clause and was added to the Bill at the same time as the amendments to clause 5 were tabled. It deals with the burden of proof on defences. I am slightly mystified why we have to reinforce what I have always understood to be the basis of English law: that someone is innocent until proven guilty. All that the clause does is to restate the natural processes of law. We have often urged the hon. Lady to be more explicit, thus avoiding any possible misinterpretations of the Bill, but we are always told that it is self-evident. I wonder why the additional clause—welcome, though it was to many—was deemed to be necessary, repeating as it does the natural processes of the English legal system. It removes the need for the defendant to prove that he was acting reasonably, thus creating an evidential rather than a legal burden on the defence.

Subsection 2 is drafted in pretty poor English. Subsection (1) just about gets away with it, by referring to the long list of previous clauses. But the words,

''Where evidence is adduced which is sufficient to raise an issue with respect to that defence, the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not'', do not read well. The clause does not trip off the lips as easily as other parts of the Bill. It is a late addition and an example of how not to use the English language.

I will not detain the Committee with detailed, reworded amendments, but I wonder if the Government could improve the wording of the clause. We welcome the clause, but we would particularly welcome some additional explanations from the Minister as to why it was necessary to include a provision that appears to be self-evident.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

I also welcome you to the Chair, Mr. Winterton. The Bill that we are discussing has proved to be both fascinating and instructive. We have made less progress than I had hoped with regard to the Government listening to reasoned argument.

As for making progress, I agree with you, Mr. Winterton, that it is important that a Bill be scrutinised in full from beginning to end. That is why the Government's suggestion that there should be eight sittings struck me as unreasonable. Eight sittings became seven, seven became six, and six ended up as five, and that is why it is proving difficult to make the progress for which some people have wished.

I have always worked on the principle that the role of the Committee is to scrutinise the Bill properly and thoroughly to ensure that we pass sensible and good legislation. If it has taken longer than some people would have liked, the fault lies not with us, but with those who decided that the debate should be truncated and that the issues should be made to fit the time that was deemed to be available, rather than making the time fit the importance of the Bill. I pointed that out during the Programming Sub-Committee and nothing subsequently has made me change my mind.

I am not a lawyer and I always find it difficult to get my mind around provisions such as clause 17, which refer to the workings of the law. When I see that type of clause, I ask myself why it has been included in the Bill. As a layman, I was always brought up to believe that everyone in this country is innocent until proven guilty. It is surprising, therefore, to discover that clause 17(2) appears to state that a person is innocent until proven guilty. I had believed that that was the standard assumption of all courts in this country. When I read that the Bill says what I assume to be true, I become extremely suspicious. It is not simply restating the obvious and has been included for a reason. After 15 years in this place, I have a somewhat suspicious mind, which leads me to think that the provision is intended to water down what would otherwise be an absolute right of all British subjects standing before a court.

Will the Minister say why subsection (2) states

''the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not''?

There must be a reason for it, because as I understand the law, it would not be necessary, unless the Government were trying to alter the status quo when a case is brought before the courts.

I did not interrupt my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) when he was in full flow, but he said that clause 17 appears to make the test evidential, rather than legal. He clearly has a better grasp of such matters than I do. Will the Minister say what the significance of that comment is and whether there is a difference between the evidential and the legal? I always assumed that the court process concerned legal matters. If there is a difference, I should be grateful if the Minister would explain it. If there is a choice to be made between evidential and legal, why have the Government chosen evidential? I have two questions about subsection (2): why does it refer to the burden of proof and why is a choice made about evidence in it?

Subsection (1) makes a key point, too. It says:

''This section applies where a person charged with an offence under this Act relies on a defence under any of sections 5(1) to (6), 6(1), 9(5), 10(3) and (4) and 15(3).''

What about any defence that does not rely upon those clauses? I speak as a layman, but I presume that there might be such defences, either in common law or in statute law when there is spill-over from previous statute laws, as is the case with the Bill. Why should the provision mentioning the burden of proof relate to the defences listed, but not to others? If there is good reason to refer in subsection (2) to evidence that is ''beyond reasonable doubt'', why does that not apply to every defence that could be used in a prosecution under the Bill? A choice must have been made.

I should be grateful if the Minister would consider the issue raised by my hon. Friend—the fact that the provision has been added to the Bill. That means that the Bill as originally published and considered in the other place, was, after discussion, deemed by the Government to be flawed. The Government decided that there was something wrong with the Bill and so they added something to it. It would be helpful to be told what it was that the Government realised was a mistake; why the clause was chosen as the means of solving that problem; and what other routes to solving it were considered before that one was chosen. I hope that the Minister can explain to me, a layman, some of the intricacies of the legal thinking.

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

I also welcome you to the Committee, Mr. Winterton.

The clause was introduced in the other place; it was not part of the Bill that we discussed a year ago in Committee. It is about the burden of proof when the defendant has a defence. As we have said many times, we have structured the Bill by setting out an offence—the promotion of a tobacco product through a tobacco advertisement—and then setting out the defences

against it. The prosecution must prove that offence beyond reasonable doubt. The issue is who has the burden of proof for defences.

Someone who distributes or publishes a tobacco advertisement might believe that they have a defence. For example, they might not have known or have had no reason to suspect that the tobacco advertisement would be published in the United Kingdom. The clause sets out clearly where the burden of proof lies in the case of such defences; it lies with the prosecution, who will have to prove, first, that the defendant committed an offence by publishing or distributing a tobacco advertisement and, secondly, that the defendant's defence does not stand up.

The reason for subsection (2) is that the defendant has to produce some evidence

''to raise an issue with respect to that defence''.

In other words, the defendant must produce some credible evidence to support their defence. If the evidence

''is sufficient to raise an issue'', the prosecution has the burden of satisfying the court or jury on the matter beyond reasonable doubt in the ordinary way.

Photo of David Wilshire David Wilshire Conservative, Spelthorne 10:45, 14 May 2002

If I understand the Minister correctly, she suggests that in some circumstances it is up to the defendant to prove the case for his defence. I have always assumed that it is up to the prosecution to prove the case. I find it amazing that that is suddenly necessary and we have not heard why.

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

The Committee's purpose is not to comment on the structure of the British legal system, and, as I am not a lawyer, I have no intention of doing so.

The purpose of the amendment is to make it clear where the burden of proof lies in the defence. It is right that the burden of proof should lie with the prosecution once someone has offered evidence that they have a defence under the Bill. The clause is intended simply to get the balance right and to ensure that the things that the defendant in such a case must prove are reasonable in respect of banning tobacco advertising.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

That will not do. I appreciate that the Minister is not a lawyer and, therefore, cannot necessarily give detailed answers, but the Government owe it to the Committee to ensure that someone can answer the legal questions. I challenge the concept of the need to specify that the matter is for the prosecution to prove, rather than the defence.

The Minister says that we cannot consider the British legal system because that would be to go down another route, but that is exactly what we have to do. Surely we are here to deal with the vagaries of the British legal system? If we do not, how can we be satisfied that the Bill is sensible within the framework of that system? When the Bill is enacted, the only way in which it will be tested will be in the courts. The vagaries of the British legal system and how its courts work will be the way in which the Bill is tested.

I find it strange that it seems necessary to specify that the defence must not prove something, and I have heard no explanation why. I was under the impression, and the Minister has said nothing to dissuade me, that defences never had to prove anything in court, and that in a criminal court it was entirely up to the prosecution to prove a case and, unless the case was proved beyond all reasonable doubt, it fell.

The clause has been included for a reason, which cannot be to clarify an existing state of play. If the Minister cannot give us the legal explanation why it is necessary, will she arrange for someone else to do so and to write to the Committee with the answer?

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

I have made the role of the clause clear. The previous wording, which did not include the clause, might have required a defendant to prove his defence on the balance of probability. That is the nature of the—

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

If the hon. Gentleman wants to hear my answer—

Photo of David Wilshire David Wilshire Conservative, Spelthorne

Why would it be necessary in a criminal court for the defence to prove something? Surely that is what happens when the balance of probabilities is involved, in a civil court? Before the Minister gives the rest of her explanation, she cannot pass over the comment that it would otherwise have been necessary. Why?

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

If the hon. Gentleman is so convinced that the clause is unnecessary, he is at liberty to vote against it, as this is a stand part debate. The Bill sets up an offence that the prosecution must prove beyond reasonable doubt. Defences are set out in the Bill. The question is, on whom does the burden of proof lie in respect of those defences?

Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

Surely there can be no harm in restating a principle of British justice in a Bill that may tread new ground in British law? The Bill goes too far to make it as easy as possible for tobacco companies to avoid prosecution, by making it hard to secure a prosecution. Obviously, they will be punished as appropriate, but the hon. Member for Spelthorne (Mr. Wilshire) has a point—the clause restates a principle of British justice. However, it is right that the clause is in the Bill.

Photo of Mr Peter Pike Mr Peter Pike Labour, Burnley

Order. This is too long for an intervention.

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

My hon. Friend the Member for Luton, North (Mr. Hopkins) is correct. The clause is partly a response to recent case law and partly to concerns raised in both Houses about clarifying where the burden of proof lies. Without the clause, the previous wording may have required defendants to prove their defence on the balance of probabilities. The prosecution must prove the offence beyond reasonable doubt, but defendants would have had to prove their defence on the balance of probabilities.

Recent case law has made it clear that the principle by which a person is innocent until proven guilty may be breached. The clause has been included in the Bill to put the matter beyond doubt and make it clear that the only burden on the defendant is to provide evidence. The burden of proof falls to the prosecution, once the defendant has provided evidence in the case.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

The longer the Minister talks, the more complicated the debate becomes. Every time that she is pushed to produce an explanation, she produces part of it and then falls back on some reference. Last time it was, ''We shouldn't discuss the principles of British justice,'' but we need to. This time it was, ''It is necessary because of recent case law.'' If she had said that the first time, there would have been no need for the second explanation. However, saying that the clause depends on recent case law is not sufficient. If people read our debate when a case is coming to court, they will need to know which cases we have in mind. What recent case law? Let us put on record the cases that led to the clause.

The hon. Member for Luton, North cannot be allowed to get away with his intervention without comment. He said that somehow or other we seem to be making things as easy as possible for the tobacco companies to do this, that or the other. With the greatest respect, we are making is as easy as possible for the innocent to be found innocent of charges brought in court, which has nothing to do with tobacco companies. If someone is innocent, they must be found innocent.

If the prosecution cannot prove its case, a person is innocent. That is what this debate is about. If we are making it as easy as possible for justice to be done, I would say, ''Amen'' to that and I do not apologise. Tobacco companies should be able to go about a lawful trade unhindered in a legal way as innocent organisations. On the other hand, if a tobacco company breaks the law, it should be prosecuted. It is for the prosecution to prove the case.

The hon. Gentleman also said that it was a good idea to spell out the principles. He should think carefully about that. Why is it a good idea in this clause but not in others? He should have realised by now that I am happy to have a lengthy debate on the principles underpinning each clause with regard to British justice. One cannot pick and choose and say, ''Let's have some principles here and ignore principles somewhere else.'' His intervention must be challenged on those grounds.

Will the Minister tell us what recent case law?

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

The most recent cases were those of Lambert, in which the House of Lords ruled on the provision in the Misuse of Drugs Act 1971 requiring a defendant to prove something in order to establish a defence. That must be read as requiring the defendant to give only sufficient evidence that he did not know something—an evidential rather than a legal burden of proof.

That case was followed by the Carass case in the Court of Appeal. I have clearly set out the purpose of the clause. If the Opposition are unhappy, I suggest that they vote against it.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

Thank you. If we had had that explanation and the case law 20 minutes ago, we would not have needed the debate.

Question put and agreed to.

Clause 17 ordered to stand part of the Bill.