Mr. Maples: The Minister says that the CPS would not prosecute unless it had a better than 50 per cent. chance of success, and that it does not bring frivolous prosecutions. I understand that those qualifications are not in statute; they are policy decisions which can be altered at any time by the fiat of the Home Secretary or whoever runs the CPS. We are dealing with two problems. First, some of the offences are borderline cases, and it will be extremely difficult to see on which side people might be. Secondly, the burden of proof has essentially been reversed.
Would the Minister accept an amendment to remove the problem of frivolous prosecutions, requiring that a prosecution had to have the fiat, or the authority, of the Attorney Generalalthough that may be too high up the food chain? We could then be confident that frivolous prosecutions would not be brought by people at a local level. If that were done by a chief constable or a reasonably senior member of the Government, I would take some comfort. At the moment, however, the Bill does not contain such a restriction; it is simply a policy decision of the CPS.
Mr. O'Brien: I find that a remarkable intervention. The Conservative party has passed many laws that have relied on the CPS doing the job for which we pay it, which is to make sensible and reasonable judgments. The CPS has done that for many years in a way that has earned the trust and support of Governments for whom the hon. Gentleman has served, just as it commands the support of the present Government. We pay and support the CPS to make precisely those sorts of judgments. The idea that this issue, above all others, should be removed from the CPS because we cannot trust it to deal with it is unacceptable. It is a denigration of the quality of the work of the CPS. I suspect that, on due reflection, the Opposition, too, would find it unacceptable.
Mr. Alan Simpson: Does my hon. Friend accept that the real problem for the majority of Members of Parliament in their interactions with the CPS is the other way round? Many of our constituents come to us because an offence has been committed against them and they are deeply hurt and affronted at the fact that the prosecution is not going ahead. Not once have I been required to approach the CPS for an explanation of why it has proceeded with a prosecution. All my experiences have been of asking it why it has not proceeded with them. To suggest that the CPS would be responsible for reckless or frivolous prosecutions on this issue and no other would be a monstrous distortion of the way in which it works.
Mr. O'Brien: My hon. Friend makes the point well. There is a clear and good safeguard in the guidance to the CPS. The prospect of conviction is not simply more than 50 per cent., as was suggested by the hon. Member for Stratford-on-Avon, because there is a realistic likelihood of a prosecution succeeding. The threshold is high. My hon. Friend is right to say that our constituents are often concerned at the failure of a prosecution and at the decision not to prosecute.
Mr. Garnier: With the greatest respect to my hon. Friend the Member for Stratford-on-Avon, I am not terribly fussed about the CPS, which I think will conduct itself in a professional and sensible way. I am concerned about maverick prosecutions brought by private individuals. If the International Fund for Animal Welfare is prepared to give £1 million to a political partyit is perfectly entitled to do sowhy may it not also spend large sums advancing its agenda through the courts?
The hon. Member for Basildon has been a representative of the League Against Cruel Sports. It or bodies like it will fund private prosecutions if they think that there is a scintilla of a chance of advancing their agenda by doing so. I do not suggest that the Minister thinks that that is a good idea, but he does not control IFAW or LACS. I am concerned that there should be some form of braking system or protection to prevent maverick groups or individuals from using the courts for their political purposes. Although that is not in the Bill and it need not be, I need some assurance from the Minister that the law officers will keep a close eye on such cases and issue nolle prosequi if they think that the cases are silly.
Mr. O'Brien: If campaign groups of any sort start making frivolous prosecutions and wasting their money, they will soon not have much money to spend on anything. As the hon. and learned Gentleman knows, there is a protection on frivolous prosecutions, as the CPS can take over a prosecution that has been conducted in a way that is not in the public interest. It can then decide to discontinue it. We can rely on the levels of safeguard in the system in relation to not only this law, but all criminal law. I cannot provide him a guarantee on his concern, but what may be theoretically possible is none the less unlikely. We are passing good law; a safeguard is built in due to the fact that his concerns are unlikely to come to pass.
The right hon. Member for Berwick-upon-Tweed was concerned that people would be prevented from chasing rats with their dogs, even though that complies with the provisions, because they fear a silly prosecution. That deals not with the issue of whether a prosecution will take place, but whether someone fears that it will. In my experience, people do not normally fear silly prosecutions. An individual may be likely to display some caution about the way in which he or she decides to hunt, but it may not be a bad thing for people to be cautious about making the decision to hunt rodents with their dogs. It may ensure that they are more careful about the boundaries than they would otherwise be and that they are less likely to prosecute or trespass. A certain public interest may be served in making people think carefully about what they do, so it is justifiable for Parliament to say that it may not be a bad thing if people were a little cautious,
People who hunt rats, or ratters, if one may call them thatthe hon. Member for Mid-Sussex will correct me if I am using the wrong term and referring to dogs, not individualsneed to know about the law that covers them, as does anybody else in respect of anything that they do. They are also obliged, in this activity as in any other, to employ a fair degree of caution to ensure that they do not transgress the will of Parliament and the law of the land.
I turn to the reversal of the burden of proof. The hon. and learned Member for Harborough said that that is a great infringement of our liberties and a terrible development. In fact, the statute book provides many examples of the reversal of the burden of proof, as he calls it, or setting out an offence with a series of defences, as I would call it. A particularly relevant example is the Protection of Badgers Act, which establishes a clear offence coupled with a series of defences that may be pleaded. No doubt the hon. and learned Member for Harborough would have wanted to support that piece of legislation, and I am sure that the hon. Member for Stratford-on-Avon would have been anxious to do so.
Not only were such laws passed by the previous Government, whom he supported, but, in some cases, the subject matter of those laws was similar to that of the Bill. All such laws employ a method of dealing with a criminal offence and the defences to it; that is common in our criminal system. It is no more surprising, strange, unusual or liberty-threatening to deal with the matter in this way than in any other.
Mr. Garnier: I am grateful to the Minister for bringing the Protection of Badgers Act to my attention. I invited him to provide examples, and he has done so. I do not know when the Act was passed, nor whether I was in the House at the time. I imagine that it was under a Government of my right hon. Friend the Member for Huntingdon (Mr. Major), not of Baroness Thatcher. In any case, it predated the incorporation into domestic law of the European convention on human rights, which gives my argument added force.
Mr. O'Brien: The Act was indeed post-1992; the hon. and learned Gentleman voted for it.
The hon. and learned Gentleman made an excellent speech in the Palace at a meeting for pressure groups involved in the European convention on human rights. He said that far from being an Everest in terms of legal change, the ECHR was one of our ``rounded English hillocks''. I thought that that was a wonderful description and noted it down immediately. He is worried that the ECHR will overturn laws such as this. However, the Bill does not deviate from normal legal drafting procedures in terms either of the doctrine of the margin of appreciation or of Strasbourg court precedent. It considers the way in which the law operates on individuals in terms of protecting their basic rights, as set out in the ECHR, and I have heard no evidence of any Strasbourg court decision that would prevent legislation such as the Protection of Badgers Act 1992, or the Bill, from becoming law.
I accept that the schedule may contain issues that could be raised under the ECHR. If I were a practising lawyer, like the hon. and learned Member for Harborough, I could probably spend many happy hours working up arguments to bring a case, frivolous or otherwise, under the ECHR on this matter. However, as he pointed out, that does not mean that the ECHR will provide some sort of Everest over which any Bill must climb. It is one of our ``rounded English hillocks''. It provides basic standards and does not prevent the enforcement of reasonable, proportionate and good law. The aim of the House and of the Committee is to ensure that the schedule is proportionate and good law. I know of no reason to doubt that. Indeed, the Government have certified that the schedule will comply with the ECHR.
Hon. Members: Hear, hear .
Mr. Garnier: I am glad that there are so many interested students of the ECHR. It is, of course, possible to trip on a hillock. Another point is that the margin of appreciation probably no longer applies now that the ECHR has domesticated the convention to be justiciable in our English courts.
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