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Mr. Swayne: I merely want to dwell on the content of my intervention. I acknowledge that the Minister has done a service to the Bill by introducing the new clause, but I am concerned about the defence. I accept that my concern might be due to my limitations in understanding such legal matters, but it is worth reinforcing the point.
The offence is clear—it is intentionally or recklessly to damage or destroy flora or fauna if the defendant knows that what he has damaged or destroyed is within a marine site of special interest. It follows logically from that that the defence would be that the defendant did not know he was within a designated area or that he was not intentionally reckless in his activities. However, to include a defence that that might be an incidental consequence of an otherwise lawful activity undermines the nature of the offence.
Given that my experience of the sort of activities that we are talking about is limited and my expertise does not extend to maritime matters, it would be helpful if the Minister could provide examples to which the defence might apply. Perhaps he could give some examples of the activities that might destroy the maritime flora and fauna, but would otherwise be lawful and provide an adequate defence under the Bill. The new clause seems to let people off the hook.
People are annoyed and frustrated about damage to SSSIs on land when they see designation of those sites being completely ignored by developers or landowners and there is insufficient penalty to provide a disincentive. In framing the new clause, the Minister has dealt with that: he has provided an adequate disincentive through a fine. I should hate to see that undermined by this defence. I think that my argument has force, and I note from the body language of Labour Members with greater legal experience than I have that that view is not confined to me. I would certainly welcome greater clarification from the Minister.
Mr. Dismore: I should like to follow the points made by the hon. Member for New Forest, West (Mr. Swayne), because I suspect that my right hon. Friend the Minister has his mens rea jumbled up in this new clause.
Subsection (1) of the new clause sets out a clear offence of intentionally or recklessly causing damage, but I am concerned about the defence, which seems more appropriate to damage caused negligently. The new clause provides an unnecessary defence. Let us suppose, for example, that a ship was in distress at sea in a storm and the ship's captain dropped anchor. I presume that that would be a lawful operation. If it caused damage, it could be said that the damage could not reasonably have been avoided. When the ship's captain dropped anchor, he was not intentionally trying to destroy the flora or fauna under the sea bed, but was trying to save the lives of the people on the ship; nor was he acting recklessly.
It is difficult to imagine circumstances in which someone intentionally or recklessly damages the sea bed or anything appertaining to it, yet at the same time is engaging in a lawful operation that could not reasonably have been avoided.
Further to the point made by the hon. Member for Uxbridge (Mr. Randall), a warning would be wholly irrelevant. One could issue a warning that what someone was about to do would intentionally or recklessly cause damage and that person could knowingly go ahead and do it, but he would still have a defence under new clause 3(3). Thus any warning becomes otiose. My right hon. Friend the Minister should consider whether subsection (3) is needed. I believe that it would be needed only if the offence were intentionally, recklessly or negligently to damage the sea bed. In those circumstances, I see a need for the defence, but as matters stand it drives a potential coach and horses through the offence.
I refer now to the corporate liability. I am pleased to see that we are lifting the corporate veil and going to the directors, managers and secretaries of a company if they are behind the game. As the Minister knows, I have been keen on this concept in respect of corporate killing, on which I have yet to win the argument. However, it is important. I am concerned about the reference to neglect on the part of the director, manager, secretary or so forth, because we have the mens rea of neglect while the offence itself has the mens rea of intention or reckless behaviour. That seems to be contradictory. If a manager intentionally or recklessly consents to or connives in the offence being committed, so be it, but why should a negligent director face a greater risk of penalty than the person causing the offence?
We must have another look at this provision and either make the offence one that includes negligence with knowledge, which it would be easy to do, in which case the defence would stand, or remove the defence and redraft the director's liability to bring it more in line with the offence.
There is a series of different interlocking issues which do not quite add up and which I regret to say would probably provide a field day for my professional colleagues, were I still practising as a solicitor. I still have a practising certificate, but I am pleased to say that I am not taking cases now. I have more important things to do.
Mr. Heath: The hon. Member for Hendon (Mr. Dismore) has covered some of the ground that I intended to cover. There are internal contradictions in the offences laid out in new clause 3. I welcome the fact that the
Government have introduced the new clause, but it needs a little revision, because it is hard to reconcile the offence in subsection (1) with the defence in subsection (3).I suppose that it is conceivable that somebody might find himself with a snagged net and believe that to retrieve the net he must cause intentional damage, which might however be held to be incidental to a legal operation.
Mr. Heath: I am about to be interrupted by a member of the legal profession, who will tell me why I am wrong.
Mr. Dismore: In those circumstances, the motivating factor behind the act would be not to cause damage but to release the net. One could not say, therefore, that the intent would be to cause damage. It would also be difficult to bring the action within the definition of recklessness, so I am not entirely with the hon. Gentleman on that point.
Mr. Heath: I am grateful to the hon. Gentleman, who has more experience of such matters than I have. I was merely suggesting that I could conceive of a circumstance in which that might apply. I agree with the hon. Gentleman's basic hypothesis that, given that the offence is termed intentional or reckless damage, the prosecuting authority must establish that the damage was intentional or reckless in order to achieve a prosecution. Clearly, any action that is accidental or incidental does not fall within that category.
My concern is almost the reverse: the provision under subsection (1)(b) and the need for the prosecuting authority to establish that the defendant knew that the damage or destruction was within a marine site of special interest. That is difficult to prove to the satisfaction of a court. Unless a specific notification has been given, it is hard to prove that the person at that time knew that he was in an MSSI.
We have had similar debates in other capacities, and I have always preferred the absolute offence against mitigating factors, rather than the requirement that the burden of proof be put on the prosecuting authorities to establish not only that the damage was intentional or reckless but that the person knew about it. Had the provision been phrased in such a way that the person might reasonably have been expected to know that he or she was in an MSSI, that would be a different matter, because there would not be an absolute need to prove that the person was in possession of that fact when the offence was committed.
The issue of whether the wording is right is a minor quibble, although it will need to be tested at some stage, and may be tested in another place. I broadly agree with the Minister's proposals.
I also agree with the point made by the hon. Member for Hendon about negligence by a body corporate. If such a body has simply not given clear enough instructions to its staff, why should it necessarily be guilty of an offence? If an instruction has not been issued, that does not constitute a deliberate act of intentional or reckless damage or destruction.
Some guidance on byelaws would be of assistance. I strongly support a legal framework for the protection of MSSIs, but it must be fair to all those who might be affected. Prior consultation on the substance of the
byelaws with particular regard for the interests of those who use the seas for various purposes is important. We should consider not only the needs of the fishing industry at large—which are important—but the way that byelaws might affect low-impact fishing methods: for example, the mackerel handliners, bass longliners, cove shell fishermen or even the few remaining mudhorse fishermen on the mudflats of Bridgwater bay.Those activities would not have a significant effect on conservation areas but could be caught by byelaws that were unintentionally framed too widely. I hope that proper regard will be paid to those interests in the drawing up and confirming of byelaws.
Mrs. Helen Clark (Peterborough): My remarks will cover some familiar issues, but as it is important that these views are fully recorded, I beg the indulgence of the House if some of my points have already been made.
I am pleased to be able to contribute to the debate on this important Bill. I spoke in favour of it on Second Reading and had the honour of serving as a member of the Standing Committee that considered it. It is clear from the many new clauses and amendments that have been tabled that my right hon. Friend the Minister for the Environment and the hon. Member for Uxbridge (Mr. Randall)—the Bill's promoter—have worked extremely closely together since those proceedings, and I congratulate them on their constructive approach.
I also want to highlight the wide support for the Bill throughout the country. Anyone who thinks that this is a side issue is not living in the real world. Many Members on both sides of the House have received letters from constituents, whether our constituencies are land or sea-bound—Peterborough is certainly not sea-bound—asking us to support the Bill. That demonstrates once again the deep concern for the marine environment.
I was pleased to receive a letter from the Wildlife and Countryside Link—its representatives might be in the House today—which is an umbrella organisation for environmental groups that express support for the successful consideration of the Bill.
Government new clause 3 is a very welcome addition, as we have stressed. It will mean that anyone found intentionally or recklessly damaging or destroying any of the interests of an MSSI, when they knew that what they had damaged or destroyed lay within such a site, could be guilty of an offence. However, I hope that my right hon. Friend will be able to clarify a few issues in relation to the new offence.
In making my first point, I am traversing familiar ground. The Government propose to add a defence, but, like the hon. Member for New Forest, West (Mr. Swayne), I am concerned about that. The provision states that, where the damage or disturbance was the incidental result of an otherwise lawful activity, the person causing the damage would not be guilty of an offence. The SSSI protection measures provided under the Wildlife and Countryside Act 1981—to which my right hon. Friend referred—do not provide that defence because fishing is a lawful activity. There is a public right to fish and we should protect it. It is unclear why such a defence is needed for marine SSIs or how it will work in practice in the marine environment.
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