Hunting Bill

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Mr. Garnier: On the subject of putting people in the dock, this morning I received a telephone call from Mr. Nodder, the representative of the National Gamekeepers Organisation, whose briefing we referred to earlier in our proceedings. He told me that he is very worried that gamekeepers going about their legitimate business—for example, deliberately setting out with terriers to find and kill wild mammals, especially vermin—will become enmeshed in criminal proceedings. The right hon. Member for Berwick-upon-Tweed (Mr. Beith) took up that issue in previous debates. Will my hon. Friend focus on the likely plight of employed gamekeepers?

Mr. Leigh: I hope to do so. I want to ensure, without being too legalistic, that in such a trial of a gamekeeper or other countryman, the burden of proof would be firmly on the prosecution at all times and that the trial would be as simple as possible.

10.30 am

We know that there are various exceptions in part II. In simple terms, it is a defence for a person charged with such an offence to prove that he was stalking or flushing out, engaged in rodent control, retrieving game or recapturing or rescuing animals. Unlike members of the Committee, people in general probably do not realise that such activities are not only lawful, but beneficial. They are good pursuits that help animals and create a balance in the countryside. Nor is it generally recognised that the honest countryman who is taken to court will have to prove his innocence. He will have to prove that he was engaged in such activities, albeit in the light of the balance of probabilities, which in my opinion is unfair.

If amendment No. 110 were accepted, it would be sufficient for the defendant to ``claim'' that he was engaged in such activities, which are lawful, good and benefit the countryside. If amendment No. 111 were accepted, the prosecution would have to prove

    ``that the person charged with the offence was not retrieving a rabbit or hare which had been shot.''

Similarly, if amendment No. 113 were accepted, the prosecution would have to prove

    ``that the person charged with the offence was not searching for an animal which had been released from captivity or confinement, and the conditions in this paragraph were not met.''

The Parliamentary Secretary will doubtless say that the amendments are not drafted properly, but I claim no great expertise in this part of the law—I am simply trying to do my honest best. She will probably point to precedents in reversing the burden of proof halfway through a trial and placing it on the defendant.

For example, if, on stopping a van being driven around Canary wharf, the police find explosives in the back, under the terms of the Prevention of Terrorism Act the driver must prove that he did not intend to commit a terrorist act. However, terrorism is a serious and reprehensible activity that is dangerous to society, for God's sake. We in this country value and love civil liberties so we put the burden of proof on the prosecution, but we also take the view that a person caught driving around Canary wharf in a van full of explosives must give a good reason why they do not intend to blow the place up. In such a case, it is not necessary for the police to prove intent.

If one's dog chases and kills a rabbit, it is hardly the crime of the century. Why, therefore, should a gamekeeper or countryman on a modest salary have to hire a lawyer to prove his innocence? It should be for the prosecution to prove guilt. I freely admit that that might constitute a small burden on the prosecution, but it is one that it can bear.

Mr. John Maples (Stratford-on-Avon): Did not it become to necessary to change the law in respect of terrorism because it was proving almost impossible to secure convictions? It is difficult to think of a legal explanation for driving around a van full of explosives, but in this case we are dealing with exceptions that are not only legal but desirable and which are encouraged in the interests of animal welfare and management of the countryside. The distinction seems perfectly clear. When it is impossible to think of any reasonable or legal explanation for doing something—such as carrying explosives in a car—it is reasonable to put the burden of proof on the defendant. However, we are discussing an activity that is not only legal and reasonable, but should be encouraged.

Mr. Leigh: My hon. Friend explains very well the point that I have been trying to make. I accept that people want to stop hunting with dogs under the terms of the Bill, but the so-called exceptions are not exceptions because they go to the heart of the Bill and countryside activities. Rodent control is a burden placed on landowners; they have no choice. A landowner could be hauled before the beak for not engaging in rodent control. Under the Bill, he could be hauled before the beak for undertaking rodent control in the wrong way.

The proposal goes to absurd and ridiculous lengths. I am sure that the majority of hon. Members, who have a logical and justified view and a sense of balance in these matters, will be able to rely on the early parts of the Bill to achieve their purpose. This part of the Bill was drafted not by the Government, but by Deadline 2000. I know why it was drafted in this way and it is unduly onerous.

Mr. A. J. Beith (Berwick-upon-Tweed): I want to draw attention to an even more alarming possibility for someone who thinks that he will be brought before a court for engaging in a legitimate activity; for example, the goatherd to whom I have referred who needs a dog to locate and count the wild goats in the Cheviots. If someone takes out a malicious prosecution against him because he is thought to be interested in a bit of fox pursuing, his solicitor may tell him that the safest course is to say that he was after rabbits, was carrying a gun and intended to shoot them fresh from cover, because the Bill does not provide a safe defence against the innocent activity in which he was engaged—counting goats.

Mr. Leigh: It would be ridiculous if it were safer for gamekeepers and honest countrymen to walk around the countryside carrying shotguns. We do not want to encourage that.

The burden of proof is important and, in our criminal law, it has always been placed firmly on the prosecution, except in particular circumstances. Viscount Sankey, the former Lord Chancellor, called it the golden thread in Walmington v. DPP. He said that

    ``no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England''

No attempt to whittle it down can be entertained. We should not allow prosecutorial convenience or laziness to sway that basic principle of English law. I urge hon. Members, particularly Labour Members who are genuinely concerned about civil liberties, to consider Viscount Sankey's fine phrase, which is a beautiful part of the civil liberties of our nation.

We are discussing a matter that could be serious for some people. They may face fines of £5,000, a life ban on keeping dogs—making it impossible for them to do their job—having to surrender any horses, acquiring a criminal record and so on. The matter is serious.

If hon. Members are not satisfied with the argument of the common law, the European Court of Human Rights and its series of firm judgments have made it clear that it is normally not wise to impose a reversal of the burden of proof. Dare I say that the matter is dealt with in ``Archbold'' in paragraphs 16-77 and 16-78?

Article 6(2), which we debated in the House in terms of human rights—this is where the Parliamentary Secretary is right—

    ``does not prohibit rules which transfer the burden of proof to the accused to establish a defence, provided the overall burden of proving guilt remains with the prosecution. . . . Neither does Article 6(2) necessarily prohibit the operation of presumption of law or fact. . . . However, any rule which shifts the burden of proof, or which applies a presumption operating against the accused, must be confined within reasonable limits.''

I ask members of the Committee to think through the matter and, given the trivial nature of the offence, consider whether it is reasonable to reverse the burden of proof in all the circumstances. I am not sure that it is.

The Parliamentary Secretary has been very reasonable in the past and acknowledged on Tuesday that we had made some valid arguments. I hope that she will at least be prepared to re-examine this point; I cannot ask for more. If she does, many people in the countryside will breathe a sigh of relief and come to the conclusion that the Government are prepared to produce a Bill that does not impose too onerous a burden on people who are simply trying to carry out an honest job in an honest way in the English countryside.

Mr. Maples: I want to reinforce a few of the points made so well by my hon. Friend the Member for Gainsborough, but to approach them from a slightly different perspective.

The Parliamentary Secretary and her Home Office colleague have repeatedly said, ``This is Deadline 2000's draft. Ask them about all the details.'' However, we are talking about an issue of public policy; about whether the burden of proof should be reversed in a particular case. Parliamentary Secretaries cannot get out of their responsibility for that aspect of the amendments by saying, ``This is somebody else's draft. You will have to ask them why falconry is in or out or why rodent control on somebody else's land is in or out.'' There is a fundamental difference when we are talking about creating a rare exception to the principle of law that the burden of proof is on the prosecution.

I hope that the Parliamentary Secretary will take that point seriously and recognise that the Government are responsible for explaining why it is necessary in this Bill—which, as my hon. Friend the Member for Gainsborough says, creates, in many circumstances, relatively trivial offences—to breach that principle and reverse the burden of proof. No one is claiming that doing so is unique, but in other such cases, it has been for something that is very serious and where it would be almost impossible to prove otherwise.

The Bill is designed to ban organised hunting. That was what the House voted for, and we keep coming back to it. The ban includes beagling, hare coursing, foxhunting, harriers and so on. We all know an organised hunt when we see it, and it is not a goatherd in the Cheviots walking around with his dog or somebody taking their dog for a walk in rural Warwickshire, where I live. We are clear about that distinction. We getting into difficulty because the Bill attempts to go further than banning organised hunting to the banning of other activities beyond the border between what Deadline 2000 wants to promote and what is, on the other hand, not only legal but desirable. In the case of rodent control, there is even a legal obligation on a property owner.

All the exceptions are concerned with the protection of livestock and crops, which farmers are entitled to do. They include getting food by hunting rabbits or hares, falconry—I do not know why that is included—rodent control, retrieving wounded game, recapturing escaped animals and rescuing wounded animals. All of those are not merely technical exceptions to the ban on hunting, but desirable ends in themselves. They are proper and desirable uses of dogs by people who are legitimately engaged in managing their property or wildlife in the countryside.

The distinction that the Bill draws is not between something that is bad and something that ought to be criminal, but between something that is positively good and to be encouraged and something on the other side of the burden of proof that would be a criminal offence.

10.45 am

The effect of reversing the burden of proof is that a person such as the goatherd in the Cheviots mentioned by the right hon. Member for Berwick-upon-Tweed could be convicted on the balance of probability. He could be prosecuted for having been caught with a gun after chasing and killing a rabbit—which might be fairly easy to establish—say that he was doing something else that is covered by the exceptions in the Bill and then have to prove it. Admittedly, the standard of proof that he would have to achieve is only the civil standard of the burden of probability. However, if the jury or the magistrate decided that there was a 50:50 probability—in that he was as likely to be guilty as not—they would convict him because he had failed to establish the defence. Not only does the Bill try to establish a borderline—it is a very fine line—between desirable activities to be encouraged and criminal activities, but someone could find himself on the wrong side of it on the civil standard of proof. That is not only perverse but positively wrong.

I do not think that hunting should be banned, but even those who do—including most Labour Members—mean organised hunting, and we all know what that is. They cannot seriously be saying that the borderline between what the goatherd in the Cheviots is or is not doing is of enormous public importance and involves an activity so awful that it should be banned by criminal law. We never intended to get into such territory.

If the large numbers of right hon. and hon. Members who took part in the debate on Second Reading and voted on it but are not on the Committee knew that such criminal offences were being created and that, moreover, the burden of proving innocence of those offences was being reversed and placed on the defendant, they would be amazed, as would all those out in the country who write to us asking for hunting to be banned. We are talking about the Government being prepared, in relatively trivial circumstances, to reverse a fundamental principle of English common law.

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Prepared 8 February 2001