Other representations
14. The period for Parliamentary consideration of
the proposal as defined by the 2001 Act began on 11 December 2006
and ended on 9 March 2007. The Department records that no representations
were made to the Minister during that period. However, one response
to the proposal was made outside the defined scrutiny period by
Mr Nicholas Crampton, a lawyer for the Crown Prosecution Service
in Norwich, who wrote to the Department in his personal capacity.
We informally requested that the Department consider Mr Crampton's
representation. The Department has annexed Mr Crampton's letter
to their Explanatory Statement for the draft Order and commented
on the representation as if it required formal statutory consideration.[5]
We welcome the Department's willingness to consider this representation
formally even though it was strictly out of time.
15. The substance of Mr Crampton's representation
concerned article 5 of the proposed Order. As currently drafted,
article 4 would repeal the existing section 4 of the 1831 Act
so as to make it lawful to deal in game birds all the year round.
Doing this alone would make it possible lawfully to deal in birds
which had been unlawfully taken during the close season, so it
is also proposed that a new section 3A would be created in the
1831 Act whose effect would be to make it an offence to sell,
offer or expose for sale, possess or transport for the purpose
of sale any game bird killed or taken in contravention of that
Act or other relevant legislation where the person concerned either
knows or has reason to believe the bird(s) had been so taken or
killed. On conviction of this offence a person would be liable
to a fine not exceeding level 5 on the standard scale or imprisonment
for a period of up to 6 months, or both. The burden of proof for
this offence would rest with the prosecution, who must prove that
the accused either knew of, or had reason to believe, that the
birds had been taken or killed unlawfully.
16. Mr Crampton, argued that the proposed new offence
should be differently worded. He argued that securing a prosecution
would be too difficult and that the prosecution should not have
to establish that the accused person knew or had reason to believe
that birds had been unlawfully taken or killed. He noted that,
while the proposed new offence is analogous with a similar offence
in respect of the selling of unlawfully killed deer under the
Deer Act 1991, offences relating to the trade in other huntable
species under the Wildlife and Countryside Act 1981 and the Control
of Trade in Endangered Species (Enforcement) Regulations 1997
are committed on a basis of strict liability, with an exception
or defence dependant on the defendant showing that it applied
to him.[6] Mr Crampton
stated that, to his knowledge, there are relatively frequent prosecutions
for the relevant offences under those two pieces of legislation
but he has never been aware of a prosecution under the Deer Act
1991 for the same type of offence.
17. As we note above, under the current law, it is
not illegal to trade in unlawfully killed game birds (except during
the closed seasons, when all trade is illegal). When we considered
Article 5 of the Order during our scrutiny of the proposal, we
asked the Department to comment on the proportionality of the
proposed new offence. In its response, the Department argued that
the form of the new offence was proportionate on a number of grounds,
including that the need for the prosecution to prove that sale
of unlawfully killed birds was done in the knowledge of their
having been unlawfully killed would act as a protection for any
person who might innocently sell such birds. The Department also
noted that EC Regulation 178/2002 imposes requirements concerning
the traceability of foodstuffs and, in particular, Article 18
of that Regulation requires that food and feed businesses must
identify suppliers of food and food producing animals and the
businesses to which they have supplied products and maintain appropriate
records which can be made available to enforcement authorities
on demand. The records must also include names and addresses of
those who have supplied the relevant produce and the nature of
products supplied, with the dates of all relevant transactions
and this information would assist the authorities in identifying
and dealing with instances of unlawful trade.
18. It appeared to us at the time of our scrutiny
of the proposal for this Order that the form of the proposed new
offence was a proportionate new burden, given that it was imposed
in the context of a new freedom to deal in lawfully killed birds
all the year round. Having considered the creation of the proposed
new offence, we did not raise any specific concern about the ability
to prosecute the proposed new offence on the basis of the proposed
burden of proof. The effect of the proposed Order is clearly to
make unlawful specific activities which it would be undesirable
to permit and the fact that the proposed offence was analogous
with that established under sections 10(3) and (4) of the Deer
Act 1991 in respect of the trade in venison did and does appear
to us to be a relevant precedent. In the absence of any evidence
that this element of the proposed Order would represent an opportunity
to those who might wish to trade in unlawfully killed birds and
in the light of the protection it affords for game we remain content
for the Order to be made.
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