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4.30 pm

Beverley Hughes: I realise that I may not have time to reply to the debate so, to reflect the comments of my hon. and learned Friend the Member for Redcar (Vera Baird), will the hon. Member for Perth (Annabelle Ewing) and other Members who spoke in a similar vein explain how they think the prosecuting authorities could prove beyond reasonable doubt when, where and how

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an individual disposed of or destroyed their documents, between boarding a plane in another part of the world and travelling across airspace, when that act may not have taken place within UK jurisdiction but in the plane, outside British airspace?

Annabelle Ewing: The Minister should never underestimate the ingenuity of prosecuting authorities. The scope of the clause should be wide enough to cover people who never had those documents in the first place. That is the problem, but the Minister has not addressed it.

Mr. Heath: Is not the key point that the prosecution does not have such a requirement under the wording of the offence in the Bill? Our argument is simply that the prosecution should have to prove beyond reasonable doubt that such a defence does not apply, which is completely different from proving that documents were destroyed in a particular place.

Annabelle Ewing: I thank the hon. Gentleman for that helpful intervention and for clarification of his amendment. The amendment provides specifically that the Crown has to knock back the defence of reasonable excuse submitted by the accused in Scotland, or the defendant south of the border. That is the purpose of the amendment. It is an important provision and I shall be happy to support it if a Division is called.

Vera Baird: I shall confine my remarks to amendment No. 99, with which I disagree. However, I am grateful to the hon. Member for Somerton and Frome (Mr. Heath) for his concession about the difficulty that would be faced by prosecution authorities when trying to prove by whom, how, when and where a document was destroyed. That is the degree of detail that is usually required when framing a criminal indictment and the hon. Gentleman readily conceded that it would be extremely difficult to prove it beyond reasonable doubt. That is the test, which is why the offence is framed as it is—a point that he seemed to accept.

However, on the question of the burden of proof in a reasonable excuse, are we not in exactly the same position? The only person who knows how the document came to be destroyed, or why it does not exist, is the person who does not have their document with them when they arrive. How is the prosecution to disprove it if the person says, "My passport fell overboard when I was moving from a big ship to a small boat somewhere just off the coast of Malaysia"? A person has only to say that and the amendment would then impose on the Crown the necessity to disprove beyond reasonable doubt that such an event had occurred, which would be quite impossible. As the hon. Gentleman has already conceded, that same impossibility shows the wisdom of the current framing of the offence.

All that is required is that the person with the unique knowledge of what happened must show that it is more probable than not that he is telling the truth. That seems a reasonable way to evaluate something that, in 90 per cent. of cases, only that person can possibly know about. The tribunal will say, "That's probably true", in which case the person has passed the test. That test is not mighty or difficult, but perfectly reasonable. It certainly

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is not, as the hon. Member for Perth (Annabelle Ewing) said, a constitutional principle that in each and every criminal case the prosecution must prove every element beyond reasonable doubt, and that the only requirement for the defendant is to raise a defence, which must always be disproved.

There are innumerable cases in licensing, for example, or involving other kinds of permit, when it is uniquely in the person's knowledge whether they have a reasonable excuse for not holding the required document. Sometimes, people just have to declare their excuse, while under other legislation they have to discharge the burden of showing that it is probably true. There is no constitutional principle here.

I point in particular to the fact that the defence of diminished responsibility for murder relies on the defendant showing on the balance of probabilities that what he says about his state of mind at the time is true. I respectfully say that no constitutional principle is being undermined, and the amendment is wholly impractical.

Mr. John Redwood (Wokingham) (Con): Listening to the debate, I have been swayed by the softer voices of my hon. Friend the Member for Woking (Mr. Malins) and my hon. and learned Friend the Member for Harborough (Mr. Garnier), urging the Government to caution in framing this offence. I am persuaded to their view because the offence attracts a sentence of up to two years' imprisonment. Someone could genuinely have had their wallet or handbag stolen on the ferry over to this country, and if their plea in mitigation was unsuccessful they could go to prison here. I wonder whether we should really be adding to the prison population for such a purpose.

It is a pity that we will not have time for a proper debate on penalties, because one would have thought that people trying to come here illegally might regard being sent back as a more serious punishment, and that might be a more sensible response in our own national interest, undesirable though two years at Her Majesty's pleasure might be for most people.

I urge the Minister to think more carefully about the framing of this offence, in light of the good and learned arguments advanced by Conservative Members and the doubts expressed from those on the Liberal Democrat Benches.

Mr. Bob Blizzard (Waveney) (Lab): The right hon. Gentleman mentioned sending people back who arrive here without the necessary documents. To where would he send them?

Mr. Redwood: To the place they had just come from, because they would be arriving at a port of entry off a flight or a ferry, and surely the authorities could work out where that flight or ferry had just come from. In most cases, the answer will be straightforward.

Mr. Blizzard: Would not the country at the other end, receiving this person with no passport or documents, just send them straight back here? This poor soul might spend the rest of his life flying back and forth on an aeroplane.

Mr. Redwood: Of course not. Very often, these people will come from a country that shares glorious

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membership of the European Union with us. This is precisely the kind of thing on which we should use our influence in the European Union to come to a sensible arrangement so that we do not end up playing shuttlecock with refugees or people seeking entry who do not have the right qualifications or reasons. That is surely within the diplomatic skills of some members of the Government, so that we can have common sense in this matter.

Glenda Jackson (Hampstead and Highgate) (Lab): I was unable to ask the Minister this question directly. Perhaps the right hon. Gentleman will ask her where these people will go at the end of their prison sentence.

Mr. Redwood: I am grateful to the hon. Lady, because she has reinforced my case. Presumably, the Minister wants these people to go somewhere else after the prison sentence, so the problem remains. In the end, she must answer our question about where they are to be sent, and that is more difficult six months or two years later, after a prison term, than it would be on the day, on first arrival in the country, when we would normally know where they had come from. Arrangements could surely be made at the airport to ensure that that is the case. Perhaps we should pass legislation to ensure that we can identify exactly where people have come from when they arrive here, rather than legislating to send a lot of people to prison, some of whom might be innocent, because they have genuinely mislaid their travel documents or had them stolen in transit.

Vera Baird: There are often many reasons for drafting law, and I imagine that the most powerful one in this case is to deter people from destroying their documents in the first place. Although the problem subsists beyond the prison sentence, surely that purpose at least commends itself to the right hon. Gentleman.

Mr. Redwood: I, like my hon. Friends, am worried about how wide the offence will become and whether it will be enforceable. The Minister thinks that she is making a firm proposal, but I assume that many people who are challenged will give all sorts of reasons why they do not have documents. Many may claim, as I suggested, that their handbag or wallet was snatched on their way over and that that contained the documents. Some might come up with the reason suggested by the hon. and learned Member for Redcar (Vera Baird): their documents fell overboard when they got off one ship and on to another. They might say that they left the documents lying around in the bar of the ferry and that they had disappeared when they came to pick them up again. In some cases, those people will be telling the truth and it will up to the court to listen carefully to that defence, but in other cases they will not be telling the truth. I wonder how easy it will be for the enforcement authorities to decide which people had deliberately destroyed their documents and come up with a bogus claim about what happened to them, and which had genuinely suffered a misfortune or mishap on the way over and thus did not deserve to go to prison.

I know that many hon. Members would like to hear the Minister's reply, so I shall not detain the House any longer. We want to know about the burden of proof and

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the width of the offence—whether it is too widely judged. I would like to know why prison is thought always to be the answer and, especially, how the Minister thinks that we will sift out those who make a reasonable defence for where their travel documents have gone from those who try to mislead the authorities—I do not think that that will be an easy task.

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