Hunting Bill

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The Chairman: Order. I draw the hon. and learned Member's attention to the fact that later amendments may cover the ground that he is now covering. I advise him that he is bordering on pre-empting later debates.

Mr. Garnier: I am aware of that, Mrs. Roe. However, the points that I was making were entirely relevant to the arguments that were advanced by my hon. Friend the Member for Aylesbury, because amendment No. 1 affects not only paragraph 1, but subsequent paragraphs of the schedule.

The amendment would import an exception into paragraph 1, which states:

    A person commits an offence if he hunts a wild mammal.

The exception is ``other than a rodent''. Exceptions in other amendments in the group include ``other than a rabbit'' and ``other than a mink''.

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Although paragraph 1 would have to be proved by the prosecutor, the exceptions of ``other than a rodent'' and those in the other amendments would have to be proved by the prosecution, too. That is in complete contradistinction to the position under paragraphs 7 to 11. We cannot shut our eyes to later paragraphs when they are so closely linked—as they must be—to paragraph 1. I do not wish to try your patience, Mrs. Roe, but I hope that you will let me develop my argument a little further. If you wish to be less lenient than you have been so far, I shall of course respect your decision.

Amendment No. 1 would ensure that people are not deterred from proper action to control rodents. The Home Office itself recognised the need to control rodents in a letter to the Countryside Alliance dated 30 November 2000, which says that rats are a health hazard and a pest and that dogs are an effective means of keeping numbers down. It points out that the Prevention of Damage by Pests Act 1949 places an obligation on local authorities and occupiers of land to take steps to secure, as far as is practicable, that land is kept free from rats and mice, and that, as those obligations are absolute, the Home Office does not believe that there should be any limitation in respect of rodent hunting. That argument was advanced by the hon. Member for West Lancashire. Paragraph 1 does not currently mention the exception of rodents, but paragraph 8(1)(a) does. I repeat the point that I made to the hon. Gentleman: given that paragraph 8(1)(a) is as it is, surely no harm and much good will be gained by adding ``other than a rodent'' to paragraph 1.

Amendment No. 2 would allow rabbits to be excluded from the offence of hunting a wild mammal with a dog. The Bill provides for several exemptions and exceptions in relation to the flushing out of rabbits and the retrieval of those that have been shot. I suggest that those provisions are ill drafted. For example, paragraph 9 states:

    It is a defence for a person charged with an offence under paragraph 1 to prove that the conduct to which the charge relates consisted of retrieving a rabbit or hare which had been shot.

Paragraph 9 is headed ``Retrieval of game'', yet, under the Game Act 1831, rabbits are not game. The paragraph thus contains an inconsistency of definition in relation to paragraph 1. That may be nit-picking, but we may as well get it right.

If a rabbit is shot and injured and crawls away into thick cover or underground, the exception would allow the use of a terrier to retrieve it or a hound to pursue it. Although that is acceptable in terms of animal welfare, because it would relieve the creature's suffering, it is inconsistent with the rest of the Bill. The amendment would remove that inconsistency by excluding rabbits from the scope of the general offence under paragraph 1.

The hon. Member for Newcastle-under-Lyme has spoken knowledgably about mink hunting. Therefore, it seems incumbent on those of us who know less about mink hunting to listen to her carefully. The Bill should not act as a disincentive for the control of mink, which, in its current form, it would be. Reference has been made to the Burns inquiry, and may I refer the Committee to paragraph 43 on page 13 of its report? It states:

    Mink can cause localised damage to poultry, gamebirds, fishing and wildlife interests.

Paragraph 5.105 of the report states:

    Mink can be very troublesome in the case of ground-nesting seabirds, especially in Scotland and on small islands. Their activities, including surplus killing, have been linked to almost complete breeding failure amongst some colonies of terns and gulls, including some rare species.

Paragraph 5.106 of the report states:

    Mink have been held to be responsible for a major decline in water vole numbers.

The hon. Lady brought those points out effectively.

Given the amendments tabled by my hon. Friend the Member for Aylesbury, I return to my concerns about the reversal of the burden of proof, which is an unjust and unnecessary way of creating criminal law. Although the Government support the Bill, I invite them to provide the Committee with good reasons for such a reversal. I have already suggested that placing the onus of proof on the defendant could lead to his conviction despite there being reasonable doubt about his guilt. He would have to prove his innocence to the civil standard, which is uncontroversial, but if the tribunal thought that he was exactly as likely to be innocent as guilty, he would be convicted, which would be wholly unfair and unjust. It could be argued, of course, that that works the other way round: if he were acquitted, there might be reasonable doubt about his innocence. However, I submit that that is entirely as it should be.

It is germane to argue that the exceptions to paragraph 1, which my hon. Friend the Member for Aylesbury seeks to amend, are, in reality, an attempt to define what the actual offence constitutes. The conduct that constitutes the offence, which part II inadequately attempts to define, is not only of a wholly different character in each paragraph, but differs from the conduct about which supporters of schedule 3 have complained. Significantly, clause 3 states:

    Schedule 3 (which makes it an offence to hunt with dogs in certain circumstances).

Clause 3 does not state, ``Schedule 3 (which makes it an offence to hunt with dogs with certain exceptions).'' To my mind, there is a real difference between ``certain circumstances'' and ``certain exceptions''. Clause 3 effectively states that schedule 3 exhaustively defines the scope of the offence—the ``certain circumstances.'' However, those certain circumstances, which partially define the core of the offence, must be the exceptions specified in part II.

Specific consideration should be given, in establishing the burden of proof, to the structure of the offence and whether the defendant was required either to negative an ingredient of the offence or to establish a special defence or exception. As drafted, the Bill requires the defendant to negative an ingredient of the offence. As I said to the Under-Secretary, that is usually for the prosecution to prove.

Defences under paragraphs 7 to 11, which bind on paragraph 1, go to the ingredients of the core elements of the primary offence, such as self-defence, honesty, mistake, accident, lack of intent, lack of specific intent due to drink, automatism and consent of the alleged victim—all of which must usually be disproved by the prosecution. It is exceptionally draconian to put the burden of proof on the defence when paragraphs 1, 20 and 21 are not exhaustive and provide for no mental element. There are sound reasons of liberty and animal welfare for not reversing the burden of proof. I have mentioned the disincentive with respect to animal welfare in relation to paragraphs 7 to 11, which are inextricably linked to paragraph 1—and would be even as amended by my hon. Friend the Member for Aylesbury.

Mr. John Bercow (Buckingham): Does my hon. and learned Friend agree that if, despite the obviously unjust and perverse character of the Bill, it is nevertheless compatible with the European convention on human rights, that does not say much for the latter?

Mr. Garnier: No, it does not. That is a point that I would have made later. I note that the Home Secretary has issued a section 91 statement for the Bill. Interestingly, at the relevant time, there were three options. Nevertheless, the jurisprudence of the European Court of Justice and of the European Court of Human Rights, as well as our Court of Criminal Appeal in the case of Regina v. Lambert or Regina v. Ali, show a scrupulous attitude towards ensuring that justice is done in cases where the prosecution duty is to prove—

Mr. Banks: Will the hon. and learned Gentleman give way?

Mr. Garnier: Let me finish this sentence.

Mr. Banks: I did not realise that it was one.

Mr. Garnier: Then there is nothing to intervene on.

Mr. Banks: On a point of order, Mrs. Roe. I spoke as I did to the hon. and learned Gentleman because I thought that he had finished. It is difficult to hear him. I know that he has many good points for us to hear, but if he addresses the court as he does the Committee, I hope that I am never one of his clients.

The Chairman: I am sure that the hon. and learned Gentleman will want to respond.

Mr. Garnier: I am told by my hon. Friend the Member for Mid-Norfolk (Mr. Simpson) that the hon. Gentleman could not afford me, and I never disagree with the Whip. I am sorry that the hon. Gentleman finds it difficult to hear. I always thought that it was the duty of anyone speaking in the Chamber or in Committee to address the Chair. It is a very big Room; perhaps the hon. Gentleman would like to move further along. [Interruption.] I am being diverted on to matters beyond the scope of the Bill, namely the quality of Labour Members' hearing. I am sorry for them, but no doubt if they are interested in the arguments they will listen more carefully. I have almost reached the end of my remarks, so perhaps there will be no need for the hon. Gentleman to listen further.

There are sound reasons of liberty and animal welfare for not reversing the burden of proof in the context that we have been discussing. All the activities that are named as exceptions are either acceptable or desirable. They include protecting livestock and crops, the production of food, falconry, rodent control, retrieving wounded game, recapturing escaped animals and rescuing wounded animals to relieve suffering. Those are to be encouraged, rather than discouraged by reversing the burden of proof, leading people to fear that they might be convicted of a crime even though innocent.

I urge the Committee to treat the amendments as exceptions with a difference. At least they are exceptions that the prosecution would need to establish to get the case off the ground, in contrast to the exceptions to be found in later paragraphs, in which the burden of proof is placed firmly and unfairly on the accused.

The hon. Member for West Ham might like to know that I have finished speaking.

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