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16 Mar 2005 : Column 135WH—continued
Environmental Crime
4 pm
Miss Anne McIntosh (Vale of York) (Con): I am grateful for the opportunity to debate this very serious issue, which will become an increasing problem when the Clean Neighbourhoods and Environment Bill is eventually passed. I am delighted to see that the Solicitor-General is present and I welcome her to the debate. We have had one or two exchanges across the Floor of the House, but this is our first opportunity to consider the issue in depth.
My starting point is the excellent explanatory notes that the Government prepared in readiness for the debates on that Bill, which has been revised and is due to receive its Second Reading in the House of Lords. Paragraph 303 on page 43 of the explanatory notes states:
"The Bill contains a number of new reverse burdens of proof (which means that, to take advantage of a defence provided, the accused is required to demonstrate his innocence once the prosecution has proved certain facts, rather than the prosecution being required to prove the accused's guilt on all issues). A reverse burden can be legal, where the burden is on the accused to prove that the defence applies to him on a balance of probabilities, or evidential, where the accused must bring sufficient evidence for the defence to be an issue, and then the prosecution must disprove the defence."
I pause momentarily to remind you, Mr. Deputy Speaker, and the House that I am a Scottish advocate, albeit a non-practising one. My recollection of environmental crimes incurring a reverse burden of proof some 20 years ago is rather hazy, so studying the Bill, other legislation and some of the court cases has provided an opportunity to update my knowledge.
My worst fears were confirmed during the remaining stages of the Clean Neighbourhoods and Environment Bill, including Third Reading, on 21 February this year. The Minister for Rural Affairs and Local Environmental Quality, who led for the Government at that stage and through all the stages of the Bill, intervened on me to clarify the position. He said:
"If people do not like the fixed penalty notice, they do not have to pay the penalty, but they must then go to court and marshal their defence at that point."
I understand from questions that the Solicitor-General has replied to that it will not be for the Crown Prosecution Service to prosecute environmental crimes under the Bill, or any other environmental crimes; it will be for the local authorities to do so. However, there was confirmation from the Minister for Rural Affairs and Local Environmental Quality that the accused will have to go to court to prove their innocence and incur considerable expense in the process. That alarmed not just me, but my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer), who said on that occasion:
"The worry about fixed penalty notices is that, if they are issued willy-nilly, people are put in an extremely difficult position in deciding whether they should go through all the hassle of going to court and many people will therefore give way. We want to ensure that fixed penalty notices are not issued without due care, and I understand that that is what new clause 6 is supposed to do."—[Official Report, 21 February 2005; Vol. 431, c. 49.]
Some concern about the reverse burden of proof was expressed in relation to other legislation. I refer in particular to the passage of the Criminal Justice and
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Police Bill in 2000–01. I do not have the Official Report reference, so I shall refer to an excellent note prepared for me by the House of Commons Library, quoting research paper No. 1 of 10. It refers in particular to the concerns that the civil liberties pressure group, Liberty, expressed. Those concerns are as valid as the arguments that I present to the Solicitor-General this afternoon. Liberty is quoted as saying:
"We are concerned that these provisions are a further manifestation of the trend to mix criminal and civil law procedures. This dilutes the principles and protections of criminal law in particular the presumption of innocence and the burden of proof. Although these procedures will not attract a criminal conviction, they relate to behaviour that is by definition criminal and can lead to a criminal conviction if a penalty is not accepted."
"We are particularly concerned that a penalty can be issued if an officer has reason to believe a penalty offence has been committed (Cl. 2(1)). This is a lesser standard than the criminal burden of proof.
If a person provided with the notice goes to court to protest his or her innocence rather than pay the fine, the burden of proof the police will be expected to establish is beyond reasonable doubt. The practical implications of this are that there will undoubtedly be a large number of people challenging these notices, causing not only the administrative burden of issuing fixed penalty notices, but also upon the courts."
I hope that the Solicitor-General will address some specific points in her response. The Library note on the reverse burden of proof prepared for me for today's debate has confirmed one point. We are all aware of the most recent court cases—namely, the House of Lords decision in Sheldrake in 2004 and R v. Johnson in 2003—and the Court of Appeal guidance on reverse burdens in the Attorney-General's reference No. 1 in 2004. Since the Human Rights Act 1998 was passed, we have seen an increasing commitment from this Government to reverse burdens of proof. According to the House of Commons Library note, as the use of reverse burdens grew, one difficulty was that draftsmen of parliamentary legislation did not always make it clear whether defendants were to bear the legal burden of proof or an evidential burden. Since the Human Rights Act came into force, with section 3 requiring courts in so far as it is possible to interpret legislation in a way that is compatible with the convention rights, the new feature has seen the possibility of reading down legislation in cases where putting the legal burden on a defendant would be incompatible with convention rights, but putting the evidential burden on him might not be.
Those people who do not wish to express or recognise any guilt for offences—quite serious environmental crimes, which we all agree must be rooted out—will increasingly have no alternative if they wish to proclaim their innocence but to refuse to pay the fixed penalty notice and go to court. There is concern that that will put a lot of pressure on the court system and that it may not be able to cope.
One aspect of the law that should have been addressed in the Clean Neighbourhoods and Environment Bill was not. I am referring to farmers or landowners who have vast tracts of land, often do not have the time to visit all of it, and who are the innocent recipients of waste that is dumped on their land. It could be hazardous waste, toxic waste, chemical waste or building waste. If the land is privately owned, the Environment Agency is charged with removing the waste at taxpayers' expense.
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However, the landowner is deemed guilty of an environmental crime. That will come into force under the Bill. It is currently before the House of Lords, so it could still be amended, except that it will be considered only on Second Reading, and not in Committee or on Report because of the timing of the general election.
It seems that there is a huge imbalance. An environmental crime has been perpetrated wilfully by an individual, but the onus of removing the waste is placed on an innocent party. I think that the phrase used is that it will be their decision whether or not they remove that waste and, if they do, it will be at their expense.
The only remedy that the innocent party will have under the new provisions in the Bill is that the police can catch and prosecute the perpetrator and then the cost to the landowner of removing the waste could be recovered. That was always our stance and we are delighted that the Government have adopted our position by making fly-tipping an arrestable offence. I welcome the opportunity to place on the record our worries and, hopefully, I shall receive a positive response from the Solicitor-General.
I think that the Solicitor-General said that, over the past six years, there has not been much opportunity to count the number of cases. The House of Commons Library has said that it would take substantial research to go through all the legislation. We are told that, in 1996, 219 examples of legal burdens or presumptions operating against a defendant were found in 540 offences that were triable in the Crown court. It said that, since then, no proper research has been carried out into such matters. However, for the purposes of this afternoon's debate, the Solicitor-General might have undertaken such research. We regret the drift towards the reverse burden of proof. We envisage a situation in which we shall rely much more on a party proving his innocence through no other means than by his having to go to court.
Let us consider the even more regrettable situation in which an innocent landowner is left with the task of removing waste that has been dumped on his land without his permission. Such serious environmental crimes are covered under the Clean Neighbourhoods and Environment Bill. I hope that that the Government will table amendments to clarify the position and to make sure that the situation that we envisage can be stopped in its tracks.
4.14 pm
The Solicitor-General (Ms Harriet Harman) : I thank the hon. Member for Vale of York (Miss McIntosh) for choosing this matter for debate, giving me the opportunity to discuss in detail a subject that has gone backwards and forwards between us in both written and oral questions and answers. It is a good opportunity for the hon. Lady to identify the full extent of her worries and for me to set out our principles and try to reassure her about such matters.
I wish to set out broadly the Government's approach and cite some examples, so that we can be clear about the starting point from which we are moving forward. The hon. Lady has obviously given the matter a great deal of close scrutiny, and I will look at the detailed points that she has raised. Obviously, I share her concern—I am sure that all Members would—about ensuring a presumption against reverse burden. It is in
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the DNA of us all to support the expectation that someone is innocent until proven guilty, and the responsibility should be on the prosecution, whether that is the local authority or the Crown Prosecution Service, to prove guilt.
Of course there have been, and are, exceptions to that, but the question put was whether there are many of them. With respect, I am not sure that I approach the issue in the same way. I do not think that one can quantify unfairness; the question is whether each individual measure is unfair. There cannot be a general climate of unfairness. If there is a reverse burden in both an environmental Bill and a completely different Bill, that does not add together to make unfairness. One must be satisfied that each and every provision is not unfair. So I do not accept the quantity point.
Also, I am not entirely sure whether there has been an increase or decrease at any stage. I think that the hon. Lady is saying that there is a trend of increased reverse burdens. Even if she is right about that, I do not think that it is necessarily a problem. However, I am not sure that she is right, because no one has counted, but I think that they will start counting after today's debate, as it is an interesting point.
When we make law in the House, we need to be sure that it is right in principle, that it is intellectually coherent, and that it works in practice in dealing with the problem that the legislation attempts to address. We would expect that in every bit of legislation, whether primary or secondary.
I am not at all as familiar with the Vale of York as the hon. Lady, but in my constituency issues of reverse burdens have not caused a problem. I know that she has a different relationship with environmental offences because of her constituency, and I will mention that later; but, generally speaking, I do not have a problem with constituents coming to see me—which they do in large numbers—feeling that somehow it is put on them to prove that they were not in the wrong and committing an offence. I do not see any constituency evidence that the issue causes a problem in the way that the hon. Lady identifies.
Miss McIntosh: Obviously I do not know a great deal about the right hon. and learned Lady's constituency either, but I would imagine that Camberwell and Peckham is deeply urban. My constituency is deeply rural. I have limited my remarks primarily to environmental crimes, but there are seven other examples of the trend in primary legislation that I would like to share with her after today for her further information. However, on these environmental crimes, the point is that the Government have signed up to EU directives, and now there is nowhere for the waste to go. That has made placing it on privately owned land too attractive.
The Solicitor-General: We do not have vast stretches of countryside in my constituency, but we have plenty of fly-tippers, and plenty of people with loads of tyres on the back of lorries that they want to dump somewhere. So we are familiar with some of the issues, although perhaps on a different scale. I will get to that point in a moment.
I shall start with the general principle. The majority of criminal offences require the prosecution to prove all elements of the offence to the criminal standard—that is,
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beyond reasonable doubt. The principle that a person is innocent until proved guilty has always been a foundation of our common law; that principle is now reinforced by the direct application of article 6 of the European convention on human rights to the UK following the introduction of the Human Rights Act 1998. So, any unfairness that might otherwise have required people to wait to get all the way to Strasbourg can be judged right now in domestic court proceedings.
However there are a number of offences, some of long standing, where the burden of proof relating to some issues may be transferred to the defendant. These typically arise where an exception is provided and the accused must demonstrate that he falls within it, or where there is some excusing circumstance of which only the accused has knowledge. Those are typically the two bases.
Where the burden is transferred to the defendant, it may be a legal or an evidential burden, depending on the intention of the legislation. A reverse legal burden requires the defendant to discharge the burden but to the lower standard of the balance of probabilities. An evidential burden requires only that a defendant raise an issue in evidence, and once properly raised it falls back on to the prosecutor to disprove the matter beyond reasonable doubt.
The Court of Appeal and the House of Lords have considered the circumstances in which reverse legal burdens will be found to be reasonable and proportionate on a number of occasions since the implementation of the Human Rights Act 1998. They have identified a number of principles to be applied in considering whether a reverse legal burden will be compatible with article 6(2), most recently, as the hon. Lady said, in the case of Sheldrake. In that case, the House of Lords confirmed that the European convention on human rights does not outlaw presumptions of fact or law but requires that they should be kept within reasonable limits and should not be arbitrary. That has to apply not in the generality but to each and every specific offence that we are considering. The effect of the court's decision is that the overall burden of proving the offence should remain on the prosecution and that the trial of the issue should be fair. A reverse burden will be deemed compatible only so long as it is in pursuit of a legitimate aim, it is justified and it is proportionate to the overall aim of the legislation.
A simple example with which the hon. Lady will be familiar is the case of a defendant stopped in public while carrying a bladed article. Under the Criminal Justice Act 1988 he has a defence if he can show that he had it in a public place for a good reason: for example, he is a carpet fitter on his way to work. The courts have found that the reverse legal burden on the defendant to prove that good reason on the balance of probabilities is fair and proportionate. The defendant is in the best position in that sort of case to prove that he had a good reason, and the prosecution continues to bear the burden of proving all the other elements of the offence: the fact of possession, the fact that the defendant was in a public place and the fact that there was a bladed article.
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One environmental example, which has been found to be compatible with the ECHR, is the offence of fly-posting under the Town and Country Planning Act 1990. That offence is intended to tackle the problem of businesses fly-posting walls, advertising hoardings and other street furniture with posters advertising their event. The offence has a reverse burden in that a person is guilty of this offence if he is the owner of the land covered by the posters or if it is his business that is being advertised, unless he can prove that the posters were being displayed without his consent or knowledge.
That reverse burden was supported by the courts recently in the case of Savvas. The Court of Appeal found that there was a reverse burden of proof in relation to knowledge and consent. To place a reverse burden of proof on persons whose business was promoted by fly-posting was determined to be reasonable and proportionate, as it was in the public interest, the exception was easy for the accused to prove, and of course, it was only on the balance of probabilities.
I understand that the hon. Lady may have some concerns, which she has expressed, about the reverse burdens of proof in the Clean Neighbourhoods and Environment Bill, which she indeed raised on Report. The central purpose of the Bill is to improve the local environment that directly affects people's quality of life wherever they live. It provides enhanced powers for local authorities and the Environment Agency to tackle local environmental quality and antisocial behaviour. I mention that because those reverse burdens do not arise in a vacuum; they are about remedying a problem through legislation. As well as having to be fair, they must be proportionate to the problem that is to be addressed.
The Bill contains reverse burdens of proof for a number of offences, and I will explain some of the reasons behind this in a minute. However, before I do, I should stress that this Bill has been, and will continue to be, subject to the usual checks and balances to ensure that it does not contravene the ECHR. The Bill has passed through the House of Commons and is currently waiting for its Second Reading in the Lords. The Joint Committee on Human Rights has published the results of its consideration of the Bill, stating that it accepted
"the statement in the Explanatory Notes that the new reverse burdens in the Bill are compatible with the presumption of innocence in Article 6(2) ECHR".
So, it has been given a clean bill of health by that Committee.
My right hon. Friend the Secretary of State for Environment, Food and Rural Affairs signed a statement confirming that the Bill is compatible with the European convention on human rights, as did Lord Whitty of Camberwell for the purposes of the Bill's introduction in the House of Lords. The Government consulted extensively for two years on many of the Bill's measures and no complaints about reverse burdens were registered with the Government by groups such as Liberty, with which there has been an exchange of correspondence. Indeed, the Minister for Rural Affairs and Local Environmental Quality offered Liberty a meeting if it had any concerns, and it did not take that offer up. If it has concerns—or if the hon. Lady's concerns are the same as its concerns—there is no reason
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why such a meeting should not take place. The Bill is not something that has not been examined and thought through.
Some of the reverse burdens in the Clean Neighbourhoods and Environment Bill slightly amend or improve existing reverse burdens introduced by the then Government in the Environmental Protection Act 1990 and the Town and Country Planning Act 1990. Appropriate reverse burdens have been around in environment legislation in relation to fly-tipping, litter control notices and fly-posting for some time.
I am aware, however, of two new examples of reverse burdens on nuisance vehicles in the Bill, which I understand the hon. lady queried on Report in the House of Commons. Clauses 3 and 4 of the Bill make it an offence to sell two or more cars on the same road as part of a business or to repair a vehicle on the road as part of a business. That is something we know about in Camberwell and Peckham—I say that with some feeling.
A person cannot be found guilty by the courts of those two offences if the defence proves to the satisfaction of the court that he or she was not selling or repairing the vehicles as part of a business. Those two clauses therefore create a legal reverse burden of proof, as the defendant is required to prove something to avoid being found guilty. However, the prosecution first has to prove that the defendant had two cars on sale for the question of a defence to arise in the first place.
The offences are targeting the rogue trader, not the private seller. Two or more vehicles being advertised for sale on the same road suggests the presence of a business venture. Local authorities have told us they have great difficulty in proving that an individual is acting in the course of a business when the transaction occurs in the street. In the unlikely case of a private seller selling two or more vehicles, it would be easy for them to prove through Driver and Vehicle Licensing Agency
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documentation that the vehicles were registered in their own or their family's name and that it just so happened that the vehicles were being sold at the same time. It is easily proved through the DVLA that such vehicles are being sold and that such people are not traders trading on behalf of someone else.
The burden of proof is on the basis not of beyond reasonable doubt but of the balance of probabilities. That is a common-sense approach, particularly when the alternative is considered. That would be far more invasive; to put the burden on the prosecution would require intrusive powers to be given, for example, to examine paperwork or bank accounts. It is more humane to the defendant to say, "Well, you produce the information," rather than to say, "We are coming in to get it". It makes it cheaper for local authorities.
The hon. Lady might also be interested to know a cross-departmental group on ECHR issues in criminal law meets every two months. The Department for Environment, Food and Rural Affairs, the Environment Agency and the Office of the Deputy Prime Minister are represented on that group. A sub-group examines reverse burdens. So, a machinery of government incarnation addresses her preoccupations. It constantly examines what the courts are saying and seeks to ensure both that such things are being kept track of and that whenever the courts say something, we ensure that we comply with it.
The hon. Lady talked briefly about mixing criminal and civil law procedures together. So long as we have the right safeguards, we should not be hung up about which jurisdiction is involved. We just want the law to make common sense for people, for it to be fair and for it to address the problem that presents itself. I am sure that it would be useful if she had a meeting with the Minister for Rural Affairs and Local Environmental Quality to discuss the issues further. I would also be happy to do so at any time.
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