Mr. O'Brien: The hon. Gentleman usually makes a valid contribution to debates, but he might find it helpful to read the explanatory notes. Perhaps then he would be wiser about the intention of the paragraph. There is no intention in any way to distract or mislead. The purpose of the paragraph has been clear throughout the debate.
Mr. Leigh: The Minister refers to the explanatory notes, and I now have them. I return to my point that the Bill must be clear, but we can come back to the argument in a moment. I repeat that, potentially, paragraph 23 is confusing.
I turn to how the courts would deal with the concept of whether the owner or person in control of the dog could conceivably have foreseen that it would chase a rabbit. Much law has been written about that. It is one of the most difficult and complex areas in criminal law and one on which the debate continues to the present.
The general principle is that:
One may assume from that that, in the case about which we are talking, the dog owner or the person in control of the dog would be safe from a potential or successful prosecution because he could not foresee as virtually certain that the rabbit would be killed. However, the Court of Appeal went on to say that
That may be gobbledegook to some of those in Committee. Let me try to explain it as plainly as I can.
The leading case law on foresight is that of Moloney, but that and subsequent cases
Because of the present confusion in the law, there is no certainty as to how the courts would deal with the concept of foresight. There has been considerable argument one way and another. For instance, I shall quickly refer to ``knowledge''. I shall not go into it in any length, because I know that you, Mr. O'Hara, do not like me to talk about it. The textbook states:
Sitting suspended for a Division in the House.
Mr. Leigh: I was in the middle of a quotation, which I shall complete:
I want to continue the discussion on foresight by summarising the law concerning a person whose dog chases a wild animal, so can be found guilty of foresight:
That is the law, but let me try to relate it in simpler words to what we are discussing.
The concept revolves around the alleged guilty mind of the person whose dog, and therefore who himself, is in contravention of paragraph 3. In trying to determine whether the gamekeeper or the person walking his dog is guilty, the court must decide whether he intended to commit a crime. The mens rea is his guilty mind; the actus reus is the act in breach of paragraph 3. The concept here is one of recklessnessacting in a way that is likely to lead to an actus reus, such as walking with a dog in a field that was likely to have wild mammals in it.
The leading case is of Caldwell, dating from 1979, which, although it initially dealt with criminal damage, is relevant to the schedule. In that case Lord Diplock decided that a person is reckless if, first, the act creates an obvious risk of property damage and, secondly, when he acts he has not thought about the possibility of the risk or he recognised the risk, but acts anyway. Therefore, he does not need to think about the risk to act recklesslyhe does not need to think about the dog chasing the rabbitto be guilty of recklessness and mens rea.
That interpretation of the law in this area was supported in a reckless driving caseReid in 1989. If the driver did not think about the risk, he could still be convicted if the risk was ``obvious'' to any ``ordinarily prudent motorist''. I mention that case because the risk of the dog chasing and killing the rabbit is obvious to any prudent walker in the countryside. Therefore, would an ordinarily prudent man think that there was a risk of a dog chasing an animal? If he did, the dog walker would be guilty of recklessness if his dog chased the animal, even though he had not thought about it. Therefore, what is important is not what is in the mind of the dog walker, because the court cannot deduce that; it can deduce only what an ordinarily prudent man would assume. I am going through these cases carefully because I believe that, under present case law, it would be relatively easy for the prosecution to establish its case beyond reasonable doubt and, contrary to the assurances that we have had, for a conviction to be achieved.
It will be especially hard on children who take dogs for walks and do not think about the risk of dogs chasing animals. It may not be obvious to them, but they would still be guilty if it was obvious to an ordinarily prudent person. The leading case in that is of Elliot in 1983. Although the case would start in a summary trial, it could go up to the House of Lords. It would be decided from the case of Elliot, on what an ordinarily prudent man would assume would happen.
My conclusion on this summary of the law is that one does not have to be aware of the risk to animals of hunting by dogs on walks to be found guilty, if it was clear to an ordinarily prudent person that it was very likely that his dog would chase the rabbit.
Mr. O'Brien: I listened with care to the hon. Gentleman's argument. Can he tell me what public interest there would be in the Crown Prosecution Service prosecuting a child who was innocently taking a dog for a walk and that dog happened to run after a rabbit? No matter what bizarre interpretation of the law the hon. Gentleman advances, it is difficult to envisage that the CPS could possibly see a public interest in pursuing such a case. One may be able to find a way of arguing that there is a vague possibility of that happening, but in the real world it is so unlikely that it is unreasonable to suggest that we should determine law based on that sort of test.
Mr. Leigh: As I have said, the CPS would not necessarily bring the case: a private prosecution could be brought by an organisation such as the League Against Cruel Sports.
I am rather hurt by the Minister's description of my interpretation of the law as ``bizarre''. Although there are more distinguished lawyers than myself in the Room, I do not think that that accusation is justified. I have made great efforts to try to interpret the law correctly in line with the courts in recent cases.
If the League Against Cruel Sports brought a prosecution against a gamekeeper, the court could conclude that an ordinarily prudent person would assume that if one takes a dog walking in the countryside, it may chase and kill a rabbit. The Minister may think that LACS is unlikely to bring such a prosecution, but I have in my hand one of its recent policy statements which, having stated that it is opposed to the shooting of wild animals and birds for sport on the grounds that human entertainment is inadequate justification for the destruction of life, goes on directly to attack gamekeepers. It says that the LACS opposes pheasant and grouse shooting and the attendant slaughter of wild animals and birds by gamekeepers, and that there are 5,000 gamekeepers in Britain whose task is to preserve game birds long enough for their employers to shoot them out of the sky for recreation. It includes a great deal of material about how gamekeepers are deliberately killing wildlife.
Mr. Banks: Perhaps the hon. Gentleman could help us by telling us the date of that information. Having heard it before, I took the precaution of asking LACS to provide a statement, which says:
The hon. Gentleman may not be using outdated information, but if he is, he owes the Committee an explanation.
|©Parliamentary copyright 2001||Prepared 1 February 2001|