Mr. Pickthall: She was a very good one.
Hon. Members: Hear, hear.
Mr. Garnier: I am sure that she was extremely good at it. She may want to speak latershe may want to intervene nowto explain whether Mr. Sirl's remarks as west country officer for the League Against Cruel Sports are his views only or the views also of the league? Is he acting off his own bat, or is he demonstrating his employer's policy to the newspaper's readers?
My second point, which concerns prosecutions, again relates to an intervention involving the right hon. Member for Berwick-upon-Tweed and the hon. Member for West Ham. The hon. Gentleman saidI might be paraphrasingthat the Crown Prosecution Service and the police will not mount silly, frivolous or strange prosecutions. However, as I pointed out to the right hon. Gentleman, cases will be investigated and prosecuted by individuals and organisations other than the police and the CPS. As I understand it, nothing in the Bill will prevent private prosecutionalthough the Minister might tell me otherwise.
Moreover, in pursuing their campaigns and political agendas, individualslegitimately and entirely within the lawmight want to test and extend the legislation's boundaries as far as they can. The Bill will allow the courts to restrict the scope of the offence, but that should be the function of Parliament. In any event, case law could develop in the higher courts only on appeal from magistrates. That often happens after a conviction, when the dissatisfied but convicted defendant wishes to take the matter to appeal. For someone who has paid a hefty fine and had his dog taken away and possibly destroyed, it will be little consolation to learn months or even years laterperhaps from the divisional court, the House of Lords or even the European Court of Human Rightsthat no offence was committed after all.
It might be instructive to remind the Committee of the words of the now unfortunately deceased Lord Reid in the case of Warner v. Metropolitan Police Commissioner. They are reported in the second volume of the all-England report for 1968, which the Under-Secretary doubtless keeps by this bedside. Lord Reid states:
A further point relates to paragraph 1 and the amendments tabled by my hon. Friend the Member for Aylesbury, which I support. Under paragraphs 7 to 12, the Bill provides for exceptions; my hon. Friend's amendments merely add to them. I hope that all members of the Committee will understand that, as a lawyer, I find it difficult to cope with a Bill that accurately and precisely defines the offence in a negative sense only. One has committed an offence unless one proves otherwise, according to the terms of the schedule. That is the wrong way to draft a criminal law that could lead to a heavy fine of up to £5,000, confiscation of one's vehicle and confiscationand possibly destructionof one's dog. I want to draw the Committee's attention to the problems caused by the reversal of the burden of proof.
Mr. Mike O'Brien: I am following the hon. and learned Gentleman's argument with care, but his suggestion that such an approach to the criminal law needs some expansion. Every criminal law that immediately comes to mind, from that on murder downwards, starts with a basic prohibition and a number of defences. Why does he think that the approach that we use throughout the rest of our criminal law should suddenly not be appropriate in this Bill?
Mr. Garnier: The Minister, no doubt unwittingly, is over-simplifying his point. For example, the Theft Act 1968 makes it an offence dishonestly to deprive permanently another of his property, but it is for the prosecution to prove each of the elements of that. It is an offence to assault another or to cause them grievous bodily harm, but it is for the prosecution to prove each of the elements of that offence.
There are occasions when the defendant is entitled to raise an issue that the prosecution then has to disprove. I am thinking, for example, of self-defence. If I assault the Minister, the CPS or those representing it will have to prove all of the elements of the assault. I, as the defendant, may wish to raise a defencethat is to say, self-defencebut I do not have to prove anything. I have merely to raise the issue and the evidential burden is that of the prosecution to disprove that what I did was not an over-reaction, but something beyond the realms of self-defence.
Under this Bill, the defence is woefully vaguely described. The offence can be understood only when one looks at the exemptions. Although I am prepared to support wholeheartedly the corrective measures that my hon. Friend the Member for Aylesbury has introduced in this group of amendments, it none the less leaves us with a difficult problem, and one of which the courts are not fond: the reversal of the burden of proof.
Mr. O'Brien: I hesitate to cross swords with the hon. and learned Gentleman on his memory of the law, which I suspect, at least on the Theft Act 1968, may not be as good as it ought to be. As I remember it, section 1 states that it is theft dishonestly to appropriate property belonging to another with the intention of permanently depriving the other. It then sets out definitions, making it clear that there are certain circumstances in which a defence may be made where the definition is not proved. In other words, it sets out the basic offence, followed by a number of possible defences. That is the correct and common form that parliamentary draftsmen have followed up to now. The hon. and learned Gentleman has not made his case that the wrong approach to the criminal law has been taken in this Bill with the clarity that I would expect.
Mr. Garnier: We could have a long discussion about the Theft Act. The Minister will no doubt correct me if I am wrong, but as I recall itand I confess that I have not looked at it since the autumn, when I last tried a case of dishonestythe offence and its ingredients are fully and adequately set out and it is the job of the prosecution to prove each of the required elements. The defendant can say nothing, but if the prosecution has not made out its case either at half time or later, the judge can discharge the caseor the jury can do so at full time. That is not an exact analogy with schedule 3, which contains the simple statement
In a spirit of friendliness, as members of the Committee are members of the profession, I shall make a point against myself. Some statutes place a burden on the defendant to prove something. I am thinking particularly of the law relating to terrorism, under which, if a suspect is caught with an explosive device or bomb machinery on his person, in his car or in his possession, he must provide an instant explanation of what it is for to avoid the doors of the jail closing on him. However, that is a wholly exceptional set of circumstances and way up the scale of criminal activity.
We are dealing under this Bill with a summary offence court. With all the expertise at his disposal, the Under-Secretary may be able to find other Bills drafted in exactly the same way which will attest to the point that I am making. Such information may be arriving over his left shoulder even as I speak. We shall hear what he says in his winding-up speech. The offensive nature of the problem is, unfortunately, not met by the amendments tabled by my hon. Friend the Member for Aylesbury, but clearly to be found in the Bill. I want to persuade the Committee that the Bill is flawed in that regard.
As I said a moment ago, the Bill provides for a range of exceptions to the general offence, which is set out in paragraph 1, but those exceptions are restrictive. As we have already discussed, they reverse the burden of proof, putting the onus 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, and that it is for the prosecution to provide proof of guilt so that the court is sure of it. The effect of the reversal of the burden of proof is that a person could be convicted of an offence even if there were reasonable doubt that his actions fell within one of the exceptions.
Mr. David Rendel (Newbury): I am interested in the hon. and learned Gentleman's point and I am beginning to see what he is getting at. Paragraph 8 on page 21 says:
Mr. Garnier: I am more than just a little worried; I find the words offensive and unjust.
Mr. Rendel: Is that the point?
Mr. Garnier: It is the point. The words ``to prove'' occur right through paragraphs 7 to 11 and will completely change the balance of power during a criminal prosecution.
The burden of proof is not generally so reversed under the criminal law unless there is a good reason to do so. There is no reason for it to be amended in this way. It is particularly unfair given that the definition of the primary offence is so uncertain and vague. The European Court of Justice states:
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