I hope that the amendment is superfluous. Under the Bill, a person commits an offence if he administers poison
''knowing it to be poisonous''.
The amendment would guarantee that people were not prosecuted for accidental poisonings. The point is not made clear in the clause, and subsection (1)(b) seemingly assigns guilt to the responsible person under all circumstances. That might well serve to deter someone whose animal had been accidentally poisoned from taking it to the vet to get it treated, because they feared being reported and prosecuted.
Although clause 27 makes provision for lawful excuse, including a provision regarding accidents would make it legally explicit that accidental poisoning was a lawful excuse for a defendant to use. In addition, it would give the prosecutors some guidance on what they had to prove—that the poisoning was not accidental—to secure a conviction under the clause. I therefore hope that the amendment would clarify the law on animal poisoning.
I will not trouble the Committee too long on amendment No. 196, which is a technical amendment. May I apologise for forgetting to welcome you to the Committee earlier, Mrs. Humble? Your chairing was so professional that I forgot that you were new to the role.
The aim of the amendment is to bring an objective element to the offence. If we do that, the defendant cannot argue that they did not know that the drug or substance was poisonous or injurious. That is important for enforcement; I hope that the Minister will take that into consideration. This is a probing amendment, so perhaps he can advise us on how the Government would tackle the issue.
I commend the hon. Member for Leominster and my hon. Friend the Member for South Swindon for raising the issues, both of which concern the mental element in the cruel poisons offence. I apologise in advance for the fact that my response to the amendments has to be rather legalistic; I hope that hon. Members will bear with me.
Essentially, amendment No. 85 is to do with which part of the action of administering a cruel poison the mental element of the offence relates to. Let me begin by breaking down the offence into its separate elements. First, there must be the administration of a substance. Secondly, the substance must be poisonous or injurious, either because it contains harmful ingredients or because of the amount of the substance administered. Thirdly, the poisonous substance must be administered without lawful authority or excuse. Fourthly—this is the mental element—the person who administers it must know that it is poisonous or injurious.
The amendment is essentially intended to clarify that the mental element of the offence relates not only to the second ingredient, which is that the person knew that the substance was poisonous, but to the first ingredient, which is that the person actually intended to administer it. For example, if I have a carton of slug pellets, I know that what it contains is poisonous. If I put it in my cat's food bowl, I not only know that what it contains is poisonous but clearly intend to administer it to my cat. If, on the other hand, I put it on my front lawn to kill my slugs, and my neighbour's cat eats it, I may have known that what the pellets contained was poisonous, but I probably did not intend to administer it to my neighbour's cat. In that situation, it is more likely that I failed to consider the possibility that my neighbour's cat might come on to my lawn and eat the slug pellets.
I take the point made by the hon. Member for Leominster that we do not want to criminalise the person who accidentally poisons his neighbour's cat or any other animal, and I am grateful to him for raising the matter. However, I do not agree that an amendment is necessary to achieve that objective. First, the hon. Gentleman's concern is based on a wider interpretation of the term ''administer'' than is intended or commonly understood. In everyday parlance, if one speaks of administering a substance, it is implied that there is a direct link between the giver and the receiver, and that the giving was in some sense deliberately aimed at the receiver. Hypothetically, if one wished to criminalise a person who accidentally poisons his or her cat, some alternative form of words that clearly included non-deliberate or careless action would be necessary. Secondly, I consider the hon. Gentleman's concerns to be addressed by the fact that, in order to commit the offence, the administration of the substance must be without lawful authority or excuse.
To return to our example, it is perfectly lawful to put slug pellets on a front lawn, and if the neighbour's cat eats them accidentally, there is a lawful excuse for that poisoning. That is an established test in other areas of law. Indeed, it reflects the original 1911 Act offence, which employed a test of reasonable cause or excuse. I believe that that is a perfectly reasonable standard to set and that it is adequate to ensure that cases of accidental poisoning are not caught by the offence.
Amendment No. 196 is to do with what the mental element is, rather than with the action to which it refers. The objective mental element that the amendment seeks to import is already found in the cruelty offence in clause 4, but I commend my hon. Friend the Member for South Swindon for raising the issue of the difference between the two clauses. Before I embark on an explanation of the amendment, let me give a quick clarification of the terminology for the non-lawyers among us, including myself. A subjective mental element in an offence means that it is committed only when the person actually knew that their action would have the prohibited consequence. That is to be contrasted with an objective mental element, in which the offence can be committed if the person does not know that the action will have the prohibited consequence, although any reasonable person would know that.
An objective mental test is used for the cruelty offence in clause 4. That means that the offence can be committed even if the person does not know that what he is doing will cause unnecessary suffering, although any reasonable person would have known that that would have been the consequence of his actions. On the other hand, clause 6, which is about the administration of poisons, uses a subjective mental test. That means that the offence can be committed only if the person who administers the poison knows that the substance is poisonous.
Amendment No. 196 seeks to change that mental test. It would import into clause 6 the objective test that is currently found in clause 4. That would impose liability on a person who administered poison or an injurious substance to animals even though he or she did not know that the substance was poisonous, despite the fact that any reasonable person would have known.
The offence of administering poison is preserved from the 1911 Act. There, it is given as an example of an act of cruelty, and is committed if the poison is administered wilfully. The same subjective mental test—that the person knew that the substance that he administered was poisonous—is used in this clause, and there is a very good reason for that. The administration of poisons has been preserved as a separate offence in the Bill on the basis that acts of administering poisons will not always cause unnecessary suffering. There might be situations in which a poisonous or injurious substance is administered to an animal but the animal does not suffer. For example, a person might administer heroin to a dog. We can argue about whether the dog would suffer, but I hope that hon. Members would agree that it should be an offence none the less. Therefore, we have kept a separate offence in the Bill to ensure that such cases are still covered, and we have lifted the language from the 1911 Act.
The question then is what the mental test should be in situations in which poison has been administered but the animal has not suffered. It seems clear that where no suffering has occurred, what we would wish to punish is the person's intention to poison or administer a noxious substance to the animal. It seems equally clear that where no suffering has occurred and the person did not know that what he gave to the animal was poisonous, there is nothing worthy of punishment. Even if a reasonable person would have known that the substance was poisonous, if that person did not, and the animal did not suffer, I do not see any justification for imposing criminal liability. On that basis, I urge hon. Members to withdraw their amendments.
It might amuse the Committee to know that, canvassing as the candidate in Burnley in 1997, I met a pig in somebody's front garden. It had been the victim of the sort of drug offence that the Minister talked about. That poor little pig had been given a drug by a drug addict, and the people looking after it were desperate to sort it out. I therefore know that there is a very nasty side to humanity, which we need to acknowledge in the Bill, and I understand what the Minister is saying. However, I was slightly confused by the death of his neighbour's cat from slug pellets on his front lawn.
If the Minister had intended to kill his neighbour's cat, he could have done it by sprinkling slug pellets on the lawn. He would then have been guilty of an offence. However, had he been able to produce a slug as evidence, he would not have been guilty. I am content to withdraw my amendment because it would have to be proven that the poisons were not administered by accident, rather than that they were administered on purpose. I think that we are in the same position either way, so I am content to withdraw the amendment, but I wonder if the Minister would tell me more about the murder of his cat. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 ordered to stand part of the Bill.
Further consideration adjourned.—[Tony Cunningham.]
Adjourned accordingly at twenty-four minutes past Six o'clock till Thursday 19 January at Nine o'clock.