Standing Committee B
Thursday 1 February 2001(Morning)
[Mr. Edward O'Hara in the Chair]
10.15 am
The Chairman: Committee members have managed to get here in weather that foxes would enjoy.
Schedule 3
Hunting with dogs: prohibition
Mr. Edward Garnier (Harborough): I beg to move amendment No. 44, in page 19, line 32, leave out paragraph 3.
Paragraph 3 says:
``A person commits an offence if he knowingly permits a dog which belongs to him (within the meaning of paragraph 23) to be used in the course of the commission of an offence under paragraph 1.''
Paragraph 1 says:
``A person commits an offence if he hunts a wild mammal with a dog.''
On the first main day of proceedings in Committee, we discussed the necessity, or otherwise, of an express provision relating to the criminal intent of the offender under paragraph 1. The Minister told us that it was unnecessary to have a reference to criminal intent in that paragraph. However, paragraph 3 contains an express reference to knowledge. The offence is badly defined and such an approach is flawed.
Mr. John Bercow (Buckingham): My hon. and learned Friend has started to explain that he thinks that the drafting is bad and has emphasised that we are discussing the issue of ``knowingly to permit.'' What would constitute ``unknowingly to permit''?
Mr. Garnier: The awful thing is that I do not think that I can answer that, but hon. Members who follow the arguments of Deadline 2000—there may be one or two on the Government Benches—may be able to assist my hon. Friend. The Minister has candidly admitted that he has come to today's sitting armed with a copy of ``Archbold'', the well known textbook. Unfortunately, it is a rather elderly edition. He is a Minister of huge experience and grey before his years, but I am sure that his politics, under new Labour, do not reflect the colour of the cover of that great tome. I will leave it to him to answer my hon. Friend's question in due course, if he feels it appropriate.
I shall pursue one or two lines of thought to try to make progress in improving the Bill. The approach of paragraph 3 is flawed for a number of reasons. Although offences beyond that in paragraph 1 might be regarded as secondary offences, I suggest that they are primary offences, and as such go beyond the normal common law rules that relate to secondary parties. Common law has clearly established that someone who aids, abets, counsels or procures the commission of an offence by someone else is guilty of the like offence. There is no need for such provision.
While bearing in mind the elderly edition of ``Archbold'' on the Government Front Bench, I remind hon. Members of some of the points that my hon. Friend the Member for Gainsborough (Mr. Leigh) drew to our attention on Tuesday afternoon.
The Chairman: Order. I remind the hon. and learned Gentleman and the Committee that we debated the concept of ``knowing'' extensively at our previous sitting.
Mr. Garnier: You are perfectly right, Mr. O'Hara, but unfortunately I could not be present. [HON. MEMBERS: ``Ah.''] I know that Government Members much regretted my absence, as did I. I was going to remind the Committee of some of the points that my hon. Friend the Member for Gainsborough made in his excellent contribution on Tuesday afternoon, but not repeat them. I am not going to talk about the concept of knowledge, which has been discussed at length.
Mr. Alun Michael (Cardiff, South and Penarth): On a point of order, Mr. O'Hara. Is there a distinction between knowingly and unknowingly repeating debates?
The Chairman: I made my ruling and the hon. and learned Member for Harborough (Mr. Garnier) has responded appropriately. It is in order for him to remind us of our earlier debate, but not to reiterate it.
Mr. Garnier: I will not remind the right hon. Member for Cardiff, South and Penarth (Mr. Michael) that he had an illustrious past as a member of the Government and the Cabinet. It is pleasing that he is here to address us today, and no doubt he will be trying to catch your eye, Mr. O'Hara, to remind us of his glorious past. Perhaps you will remind him of his inglorious future.
As the Minister will know—he has been reading his 1998 edition of ``Archbold'' all morning—someone who aids, abets, counsels or procures the commission of an offence by someone else is guilty of ``the like offence''. That is uncontroversial, and is stated in chapter 18, paragraph 4 of ``Archbold'', although I do not know whether the paragraph numbers are the same in the 2000 and 1998 editions. The distinction between joint principals and principals and secondary parties can be hard to draw, as ``Archbold'' says, but the words
``aid, abet, counsel or procure''
should be given their ordinary meaning if possible.
Participation by helping in a crime can take many forms, including keeping watch, that is tacit encouragement; and providing the means, that is providing dogs or the use of land or vehicles. Paragraph 21 of the Bill states:
``A reference to a person hunting a wild mammal with a dog includes, in particular, any case where—
(a) a person engages or participates in the pursuit of a wild mammal, and
(b) one or more dogs are employed in that pursuit (whether or not by him and whether or not under his control or direction).''
That leaves one utterly confused.
The mental element is an intention to help someone else, while realising that during the joint enterprise, the other person might commit a crime. That must be established. We should be concerned with how paragraph 3 coincides with the definition of ownership in paragraph 23, to which paragraph 3 specifically refers, and how it relates to the common law, as explained in either the 1998 or the 2000 edition of ``Archbold'', on participation by others in a crime committed by the principals.
I hope that I have the agreement of all on the Opposition Benches other than the hon. Member for Newbury (Mr. Rendel)—who, I believe, takes the view that the Bill should be passed as drafted in schedule 3 with no amendment; I hope that I have not misunderstood his position—in saying that all criminal offences that are to be established by the Bill should be clearly defined. The problem with paragraph 1, as bolstered by paragraph 3, and with paragraph 3, as defined by paragraph 23, is that the criminal offences are not so defined. I shall not repeat our discussion about exceptions, but I remind the Committee of it. Perhaps, in due course, we shall have an opportunity to discuss or amend paragraphs 7 to 11, where the exceptions are set out. My submission, which I made to Mrs. Roe some time ago, is that, as they stand, the offences are unclear. They can be defined only by looking at the exceptions. In any event, it is not clear what is meant by the word ``knowingly'' in paragraph 3.
For example, would a dog owner, who allows his dog to be used for a lawful activity, but where an offence is committed, be caught by the provision? It is unclear what is meant by the word ``commit''. Would the dog owner have to give active or express permission, or would mere failure to prevent the actions of the dog and/or those in charge of it—where it could be deemed to be in their power to do so—be regarded as the commission of an offence? How is anyone to know how to discharge the duty imposed by the word ``commit'' so as to avoid committing a crime? Paragraph 3 states:
``A person commits an offence if he knowingly permits a dog which belongs to him (within the meaning of paragraph 23) to be used in the course of the commission of an offence under paragraph 1.''
I have criticised—perhaps at length, but I hope not irrelevantly—the wording of paragraph 1, as have many of my hon. Friends. Those criticisms translate to paragraph 3. It is a question of imprecise definition.
In talking of imprecise definition, we should look at paragraph 23, which is expressly referred to in paragraph 3. The definition of a dog owner is in three parts. A person is a dog owner, for the purposes of paragraph 3, in so far as the dog belongs to him, if, not surprisingly, he owns it. One can own things in many ways, as the Minister will tell us. I do not want him to give a repeat performance of his Tuesday lecture on property law, or anything near it. However, he will know, as may others, that apart from being an interesting philosophical concept, it has caused lawyers in the chancery division and, indeed, lecturers in the law of property, considerable difficulty over the years. Baldly to state ``owns it'' is not sufficient to offer protection to someone who has a dog in his ambit, should he not wish to commit an offence.
The second definition of ownership, in so far as it refers to the expression
``a dog which belongs to''
a potential offender, is that he is in charge of it. This Committee is in charge of the Bill, for the purposes of our discussions, but it does not own it. It is possible for a group of people to be in charge of an object, because they have been placed in charge of it by statute or by the direction of others.
Mr. Michael: The hon. and learned Gentleman asked who is in charge of the Bill. The common phraseology is that the Minister is in charge of the Bill, even though the Bill is the property of the Committee while it is under consideration.
10.30 am
Mr. Garnier: Unusually, the right hon. Gentleman makes a good point. The Minister is in charge of the Bill. However, we, as a collective body, are also in charge. He illustrates the difficulty of definition that will arise if the Bill becomes law in its unamended state. A person can be in charge of something in any number of ways without owning or controlling it. The Committee must point out defective drafting.
I appreciate, as I said on Tuesday, that by virtue of the arithmetic on the Committee, the likely result of a vote on the amendment will be unfavourable to my cause. I see the happy faces of the Bill's supporters staring at me—whether they are listening does not matter—[HON. MEMBERS: ``We are listening.''] I am flattered that they are listening and staring. The likely result does not inhibit or prevent me from advancing arguments that are critical of the Bill—[Interruption.] Does the hon. Member for Lewisham, East (Ms Prentice) or another hon. Member want to intervene?
Mr. A. J. Beith
(Berwick-upon-Tweed): Perhaps it is because the hon. and learned Gentleman is a lawyer that he is concerned about the imprecision of the Bill. I am worried about its precision. The more I read, the more I am convinced that when a person takes his own or someone else's dog for a walk, he is liable to be prosecuted if the dog chases a rabbit. The very breadth of the clause, not its imprecision, worries me.
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