Standing Committee B
Tuesday 30 January 2001
(Afternoon)
[Mr. Edward O'Hara in the Chair]
Schedule 3
Hunting With Dogs: Prohibition
4.30 pm
Mr. David Lidington (Aylesbury): I beg to move amendment No. 37, in
page 19, line 29, leave out paragraph 2.
The Chairman: With this it will be convenient to take the following amendments: No. 33, in page 24, line 27, leave out `an' and insert `a controlling'.
No. 34, in page 24, line 28, at beginning insert `directly'.
Mr. Lidington: The amendments deal with paragraph 2, which sets out the offence that would be committed by someone who knowingly permitted land belonging to him
``to be entered or used in the course of the commission of''
a primary offence, that of hunting a wild animal with a dog, as laid out in paragraph 1. As members of the Committee know, to understand paragraph 2, one has to look at it alongside paragraph 22, which attempts a definition of ``belonging'' in the context of the new offence outlined in paragraph 2.
The amendments address paragraph 2 in slightly different ways. Amendment No. 37 would remove it altogether. Amendment No. 33 would alter paragraph 22(a), so that the reference to land belonging to a person would apply, not as currently stated,
(a) owns an interest in it,''
but if he owns a ``controlling'' interest in that land.
Amendment No. 34 would also apply to paragraph 22. It would amend sub-paragraph (b), which states:
Amendment No. 34 would alter the phrasing to refer to someone who ``directly'' manages or controls it.
I want to use the amendments to explore some of the reasoning behind the schedule and to probe how the Government see the new offence operating in practice.
My first question is why paragraph 2 is necessary. I am not a lawyer. [HON. MEMBERS: ``Hear, hear.''] That is the first cheer that I have had from Labour Members during our proceedings. The Minister seems to be slightly outnumbered in the lawyers' trade union today. In a previous Standing Committee on which I served, his hon. Friend the Minister of State, Home Office, the Member for Norwich, South (Mr. Clarke) took great pride in making it clear that he was not—and never had been in his entire career—a lawyer.
It may be that I have not understood a particular point; if so, the Minister will be able to advise me. However, my understanding is that, under common law, somebody who aids, abets, counsels or procures the commission of an offence is guilty of that offence as much as if he had been directly involved in its commission. If that understanding is correct, assisting somebody to commit the offence outlined in paragraph 1 might involve several things. It might involve keeping watch while somebody hunted wild mammals with dogs, or actively encouraging somebody to take part in hunting. It might include providing the means for hunting to take place, whether the means provided were dogs, vehicles or equipment; or—this is the key point in relation to this group of amendments—it could involve making land available for that purpose.
Why is paragraph 2 necessary? If common law principles already provide for somebody who assists an illegal hunt by allowing it to use his land, why is the additional offence necessary? Does paragraph 2 spread the net more widely than under common law? If not, what is the point of the paragraph? If its scope is wider than the common law offence, what is it about hunting that justifies such an approach? Why are the Government not content to rest on common law with regard to aiding, abetting and so on?
Amendments Nos. 33 and 34 try to define more tightly the description of land ownership in paragraph 22. The current definition is too vague. Under paragraph 22(a), an offence would be committed by somebody who owned an interest in land and allowed it to be used for hunting. To take an obvious example, if somebody were a minority shareholder in land, would that person be at risk of liability for a criminal offence if hunting took place on that land with the permission of one of the other owners? Is there an implicit obligation on the minority shareholder under paragraph 2 to take steps of some kind to prevent hunting?
What would happen in the case of a family farm, which might be divided, through inheritance, between several siblings, one of whom owned the majority of the interest and operated the farm on a day-to-day basis, but whose brothers or sisters also had a shareholding? The all-embracing nature of paragraph 22(a) would put those minority shareholders at risk if, for instance, they failed to telephone the police if they knew that their elder brother was inclined to allow hunting to take place across the land; or they failed to take active steps to prevent him from giving permission to the hunt; or they failed to stop the hunt entering the land. I put it to the Minister that the language in the schedule is insufficiently precise and that amendment No. 33 would allow liability to be established with much greater precision.
Much the same argument applies to amendment No. 34, under which the provision would apply to someone who ``directly'' managed or controlled land. That would avoid putting at risk of prosecution a person who might be held to have a legal responsibility for a piece of land that was used for hunting, but who was not involved directly in the land's management or its day-to-day use. If we are to create such offences, it is important that people know whether they are at risk of prosecution. They can then take whatever action the law requires to avoid that happening.
The Parliamentary Under-Secretary of State for the Home Department (Mr. Mike O'Brien): The hon. Gentleman uses the phrase ``at risk of prosecution''. There is always the possibility that something may happen, but may be unlikely in reality. He is tending to mislead the Committee by using such a phrase. The schedule deals with a criminal offence that must be proved beyond reasonable doubt by the prosecution. How can he suggest that someone might face the likelihood of prosecution if there were no evidence that that person had given consent for such an offence to take place?
Mr. Lidington: The amendments would allow for greater protection of someone in the position that I have described than relying on the judgment of police and prosecuting authorities; the Minister implied that that is all that is necessary. We have referred previously to the possibility that malicious reports may be given to the police about how people have conducted themselves. A campaigning group may allege that a person had breached the law. I do not understand why there should be an objection to amendments Nos. 33 and 34, in particular, unless the Government envisage circumstances in which a minority shareholder or someone who did not have a direct interest in the land should be liable for prosecution. Will the Minister deal with such matters at length when he responds to the debate?
Unless paragraph 2 is removed or amended, there will be a risk that a landowner could be liable if he let his land be used for conduct that fell within one of the exceptions under part II of the schedule while he was aware of a risk that the dogs might hunt something else while they were carrying out one of the accepted activities, and indeed did so. If, for the sake of argument, a landowner allowed hunting for the purposes of rodent control, as permitted under part II of the schedule, but knew that there was a possibility that the dogs might hunt other wild mammals during the course of the lawful activity, could he—as the landowner—be in the position of having committed a criminal offence? When granting his permission for the activity that is subject to the part II exceptions, what steps does he need to take to demonstrate beyond doubt that he did not set out to commit the offence?
I tabled the amendments not to have a confrontation with those who disagree with me about the Bill but to tease out the need for the additional offence in paragraph 2 and to suggest ways in which we might define land ownership more tightly than in the schedule.
4.45 pm
Mr. Colin Pickthall (West Lancashire): I have a short and simple question for my hon. Friend the Minister. Paragraph 2 uses the words ``entered or used''. Are those words meant simply in their common sense, or do they have other, legal connotations in other areas of law? Is he confident that they cover the entire range of possibilities of what might be allowed to happen on the land to which the paragraph refers?
Mr. Edward Leigh (Gainsborough): My hon. Friend the Member for Aylesbury (Mr. Lidington) is, as he says, not a lawyer; that is a compliment, I suppose. However, if he were a lawyer, he would know that us criminal hacks who are incapable of looking beyond the simplest law book tend to rely completely on ``Archbold'', the criminal pleader's bible, in which can be found all that one needs to know about criminal law as it appertains to most cases in which a lawyer is likely to be involved. It is therefore not a bad idea to read what ``Archbold'' says about the offence that we are considering.
Chapter 18 of ``Archbold'', which is headed
``Criminal Pleading, Evidence and Practice''
states that someone
``who aids, abets, counsels or procures the commission''
of an offence by someone else is
``guilty of the like offence''.
That was the point made by my hon. Friend the Member for Aylesbury. That is the position under the law at present, as ``Archbold'' makes clear.
What does aiding, abetting, counselling or procuring mean? It means that participation by helping in a crime can take many forms, including keeping watch, encouragement and providing the means; dogs, the use of land and vehicles, for example. That is why, in discussing the definition, it is important to appreciate that voluntary presence at the scene of a crime is a fact from which guilt can be inferred; but not necessarily.
Paragraph 18-18 of ``Archbold'' is clear. Common sense tells us that a person cannot escape responsibility for a traditional criminal offence simply because he was not actually committing the crime of breaking into the premises but was keeping watch, providing vehicles and all the other things mentioned in ``Archbold''. As you will see, Mr. O'Hara, the present criminal law is clear and adequate to catch people who aid and abet an offence.
Given that the present criminal law is so clear, why are paragraphs 2 to 4 necessary? They may not spread the net wider than the usual principles that I mentioned, in which case there is no point in including them. If so, why are they in the Bill? Is the intention to spread the net wider?
I do not understand why the provisions are necessary. What is the purpose of creating the crimes mentioned in paragraphs 2 to 4? What is it about hunting that justifies the special treatment that legislators have not deemed necessary in other cases, especially as the supporters of schedule 3 have decided that the offence is not so serious as to justify imprisonment? It is therefore incumbent on the Minister, when he responds, to tell us exactly what is in his mind.
The position is made worse by the lack of clarity in paragraphs 2 to 4, in relation to both a prohibited act and the state of mind. The purpose of the unsatisfactory paragraphs cannot be to clarify the application of the criminal law to secondary parties with regard to the crime of hunting, which would exist in addition to the application of the usual principles. The usual principles are absolutely clear. What is it about hunting that makes those paragraphs necessary?
However, we also have other worries. If a new criminal offence is to be created, it should be clearly defined. What does the word ``knowingly'' mean? If a landowner allows his land to be used for lawful activities, as my hon. Friend the Member for Aylesbury said, but an offence is committed, would he be caught under the provision? The provision is highly applicable in the countryside, but not so applicable in the commission of a normal crime. If someone sets out to commit a burglary or beat someone up, it is easy to interpret the word ``knowingly''. In the complex situation of the countryside, however, it is more difficult.
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