Standing Committee A
Tuesday 14 May 2002
Mr. Nicholas Winterton
The Chairman: I welcome hon. Members to the fourth sitting of the Committee. In accordance with a decision of the House, there are only five hours of debate left on the Bill. It is important that all clauses are debated and I hope that positive, constructive progress will be made today.
Defences: burden of proof
Question proposed, That the clause stand part of the Bill.
Tim Loughton (East Worthing and Shoreham): I will kick off this morning's proceedings by welcoming you to the Chair, Mr. Winterton and to the later stages of the Bill. I echo your comments that we should make positive, constructive progress. The Opposition have wanted to do so for the past three sittings. You will notice that, although we are about to debate clause 17, we shall then revert to clause 6. I fear therefore that we have made positive, constructive progress on only five clauses out of 22, which reinforces what the Opposition said at the outset: that our proceedings in Committee have been curtailed too severely.
The Minister promised to consider various clauses that we shall revisit on Report and that emphasises the fact that there are still parts of the Bill with which many people are unhappy and that require far greater scrutiny. Otherwise, it will see its next airing in the courtssomething that we should avoid. We must make the Bill as explicit as possible.
It would be useful to receive clarification from the Minister on clause 17. It is a later clause and was added to the Bill at the same time as the amendments to clause 5 were tabled. It deals with the burden of proof on defences. I am slightly mystified why we have to reinforce what I have always understood to be the basis of English law: that someone is innocent until proven guilty. All that the clause does is to restate the natural processes of law. We have often urged the hon. Lady to be more explicit, thus avoiding any possible misinterpretations of the Bill, but we are always told that it is self-evident. I wonder why the additional clausewelcome, though it was to manywas deemed to be necessary, repeating as it does the natural processes of the English legal system. It removes the need for the defendant to prove that he was acting reasonably, thus creating an evidential rather than a legal burden on the defence.
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Subsection 2 is drafted in pretty poor English. Subsection (1) just about gets away with it, by referring to the long list of previous clauses. But the words,
''Where evidence is adduced which is sufficient to raise an issue with respect to that defence, the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not'',
do not read well. The clause does not trip off the lips as easily as other parts of the Bill. It is a late addition and an example of how not to use the English language.
I will not detain the Committee with detailed, reworded amendments, but I wonder if the Government could improve the wording of the clause. We welcome the clause, but we would particularly welcome some additional explanations from the Minister as to why it was necessary to include a provision that appears to be self-evident.
Mr. David Wilshire (Spelthorne): I also welcome you to the Chair, Mr. Winterton. The Bill that we are discussing has proved to be both fascinating and instructive. We have made less progress than I had hoped with regard to the Government listening to reasoned argument.
As for making progress, I agree with you, Mr. Winterton, that it is important that a Bill be scrutinised in full from beginning to end. That is why the Government's suggestion that there should be eight sittings struck me as unreasonable. Eight sittings became seven, seven became six, and six ended up as five, and that is why it is proving difficult to make the progress for which some people have wished.
I have always worked on the principle that the role of the Committee is to scrutinise the Bill properly and thoroughly to ensure that we pass sensible and good legislation. If it has taken longer than some people would have liked, the fault lies not with us, but with those who decided that the debate should be truncated and that the issues should be made to fit the time that was deemed to be available, rather than making the time fit the importance of the Bill. I pointed that out during the Programming Sub-Committee and nothing subsequently has made me change my mind.
I am not a lawyer and I always find it difficult to get my mind around provisions such as clause 17, which refer to the workings of the law. When I see that type of clause, I ask myself why it has been included in the Bill. As a layman, I was always brought up to believe that everyone in this country is innocent until proven guilty. It is surprising, therefore, to discover that clause 17(2) appears to state that a person is innocent until proven guilty. I had believed that that was the standard assumption of all courts in this country. When I read that the Bill says what I assume to be true, I become extremely suspicious. It is not simply restating the obvious and has been included for a reason. After 15 years in this place, I have a somewhat suspicious mind, which leads me to think that the provision is intended to water down what would otherwise be an absolute right of all British subjects standing before a court.
Will the Minister say why subsection (2) states
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the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not''?
There must be a reason for it, because as I understand the law, it would not be necessary, unless the Government were trying to alter the status quo when a case is brought before the courts.
I did not interrupt my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) when he was in full flow, but he said that clause 17 appears to make the test evidential, rather than legal. He clearly has a better grasp of such matters than I do. Will the Minister say what the significance of that comment is and whether there is a difference between the evidential and the legal? I always assumed that the court process concerned legal matters. If there is a difference, I should be grateful if the Minister would explain it. If there is a choice to be made between evidential and legal, why have the Government chosen evidential? I have two questions about subsection (2): why does it refer to the burden of proof and why is a choice made about evidence in it?
Subsection (1) makes a key point, too. It says:
''This section applies where a person charged with an offence under this Act relies on a defence under any of sections 5(1) to (6), 6(1), 9(5), 10(3) and (4) and 15(3).''
What about any defence that does not rely upon those clauses? I speak as a layman, but I presume that there might be such defences, either in common law or in statute law when there is spill-over from previous statute laws, as is the case with the Bill. Why should the provision mentioning the burden of proof relate to the defences listed, but not to others? If there is good reason to refer in subsection (2) to evidence that is ''beyond reasonable doubt'', why does that not apply to every defence that could be used in a prosecution under the Bill? A choice must have been made.
I should be grateful if the Minister would consider the issue raised by my hon. Friendthe fact that the provision has been added to the Bill. That means that the Bill as originally published and considered in the other place, was, after discussion, deemed by the Government to be flawed. The Government decided that there was something wrong with the Bill and so they added something to it. It would be helpful to be told what it was that the Government realised was a mistake; why the clause was chosen as the means of solving that problem; and what other routes to solving it were considered before that one was chosen. I hope that the Minister can explain to me, a layman, some of the intricacies of the legal thinking.
The Parliamentary Under-Secretary of State for Health (Yvette Cooper): I also welcome you to the Committee, Mr. Winterton.
The clause was introduced in the other place; it was not part of the Bill that we discussed a year ago in Committee. It is about the burden of proof when the defendant has a defence. As we have said many times, we have structured the Bill by setting out an offencethe promotion of a tobacco product through a tobacco advertisementand then setting out the defences
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against it. The prosecution must prove that offence beyond reasonable doubt. The issue is who has the burden of proof for defences.
Someone who distributes or publishes a tobacco advertisement might believe that they have a defence. For example, they might not have known or have had no reason to suspect that the tobacco advertisement would be published in the United Kingdom. The clause sets out clearly where the burden of proof lies in the case of such defences; it lies with the prosecution, who will have to prove, first, that the defendant committed an offence by publishing or distributing a tobacco advertisement and, secondly, that the defendant's defence does not stand up.
The reason for subsection (2) is that the defendant has to produce some evidence
''to raise an issue with respect to that defence''.
In other words, the defendant must produce some credible evidence to support their defence. If the evidence
''is sufficient to raise an issue'',
the prosecution has the burden of satisfying the court or jury on the matter beyond reasonable doubt in the ordinary way.
Mr. Wilshire: If I understand the Minister correctly, she suggests that in some circumstances it is up to the defendant to prove the case for his defence. I have always assumed that it is up to the prosecution to prove the case. I find it amazing that that is suddenly necessary and we have not heard why.