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Lord Jenkin of Roding: I too support the amendment. I cannot compete with my noble friend Lord Onslow in a graphic description of the circumstances; but I shall quote one sentence from the judgment in the case:

"The fact that the appellants were unaware of the existence of the defect and could not be criticised for failing to discover it meant that the defect was latent rather than patent, so far as they were concerned, but this was not relevant in law, because the statute does not require either fault or knowledge to be proved against them".

It seems to me that it is inherently repugnant for Parliament to create offences which, however careful the accused may have been and however little he may have known about the circumstances—or should or could have known about them—nevertheless he can still be held guilty of an offence.

My noble friend Lord Dixon-Smith gave an example from the sphere of environmental law in the Act from which he quoted. I have with me a whole fistful of examples from other legislation where a due diligence defence is allowed. It is not as though it is used in possible offences of less importance. In the Consumer Protection Act under the "general safety requirements":

"In any proceedings against any person for an offence under this section ... it shall be a defence for that person to show ... that he reasonably believed that the goods would not be used or consumed in the United Kingdom".

That is one exception. I continue:

"it shall be a defence ... to show that, at the time he supplied the goods or offered or agreed to supply them or exposed or possessed them for supply, he neither knew nor had reasonable grounds for believing that the goods failed to comply with the general safety requirement".

After all, one can imagine that the consequences of supplying defective goods could possibly be very serious indeed and perhaps much more serious than killing a number of fish.

There is also the Trade Descriptions Act, where there is a "defence of mistake, accident, etc.":

"In any proceedings for an offence under this Act of supplying or offering to supply goods to which a false trade description is applied it shall be a defence for the person charged to prove that he did not know, and could not with reasonable diligence have ascertained, that the goods did not conform to the description or that the description had been applied to the goods".

Again, in the Weights and Measures Act 1985 if somebody takes "reasonable precautions and due diligence", that is a defence. Again, in the Food Safety Act 1990:

"it shall ... be a defence for the person charged to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence by himself or by a person under his control".

Yet, when it comes to a question of accidentally spilling something into a river, in circumstances where one could not know or have known and therefore could not have taken any precautions against it, one can still be brought before the courts by the NRA (or, as it will be, the agency). That seems to me to offend against all canons of fair treatment. I do not believe that Parliament should pass laws in their defence. We seem to have let

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this matter go through in the Water Resources Act 1991. However, the case has now shown that it is no defence that one did not know anything about the matter.

I warmly support the amendment. I cannot help feeling that the innate sense of justice of my noble friend on the Front Bench will leave him no alternative but to accept the amendment.

Lord Crickhowell: Parliament may be doubtful about passing such legislation and the courts doubtful about enforcing it, but they have been doing so since at least 1846. They have done so for good reasons. It is true that in 1846 the case of Woodrow dealt with a matter other than the pollution of a river. It dealt with the adulteration of tobacco. At that time the courts held that:

"It is very true that in particular instances it may produce mischief, because an innocent man may suffer ... but the public inconvenience would be much greater, if in every case the officers were obliged to prove knowledge. They would seldom be able to do so".

My noble friend quoted a number of instances in which the defence is valid. But that is not so in a large number of other cases; for instance, driving while over the prescribed limit, driving without insurance or using a motor vehicle without an MOT.

If one's drink is laced without one's knowledge, or one is driving a car ignorant of the fact that it has not passed an MOT, one may be just as innocent as in the case described by my noble friend. But one does not have that defence. I cannot do better than to produce the other side of the argument and quote from a judgment of Lord Justice Salmon in the 1972 case of Alphacell v. Woodward, wherein he states:

"It is of the utmost public importance that our rivers should not be polluted. The risk of pollution, particularly from the vast and increasing number of riparian industries, is very great. The offences created by the 1951 Act seem to me to be prototypes of offences which 'are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty'. In the case of a minor pollution such as the present, when the justices find that there is no wrongful intention or negligence on the part of the defendant, a comparatively nominal fine will no doubt be imposed. This may be regarded as a not unfair hazard of carrying on a business which may cause pollution on the banks of a river.

"If this appeal succeeded and it were held to be the law that no conviction could be obtained under the 1951 Act unless the prosecution could discharge the often impossible onus of proving that the pollution was caused intentionally or negligently, a great deal of pollution would go unpunished and undeterred to the relief of many riparian factory owners. As a result, many rivers which are now filthy would become filthier still and many rivers which are now clean would lose their cleanliness. The legislature no doubt recognised that as a matter of public policy this would be most unfortunate".

I believe that the consequences of accepting this amendment would be most unfortunate. Due diligence would inevitably be raised in a large number of cases. It would depend upon the circumstances of each case, but it would place a major and almost intolerable burden on the regulatory body to obtain all the necessary evidence to take such cases. It would entail the regulator finding out and understanding a great deal about the operator's practices, site management, operation and matters of that kind. And tough though it may be, there is no doubt that the legislation as it stands—it has stood for much longer than since 1991—has had a salutary

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impact on the way in which management approaches the matter of running its factories and individuals on preventing pollution.

The NRA's prosecution policy was referred to. In the case of a serious pollution incident, the NRA can take the case if necessary to the Crown Court and go for the penalties that can be imposed there. In such cases as those referred to it has always been our practice to pursue the case in the magistrates' courts and put forward all the grounds for mitigation that are offered. But where there is a serious pollution incident causing heavy pollution of a river and a large loss of fish life, we have judged—rightly or wrongly—that such a case should result in prosecution. It comes into our category of most severe pollution incidents. In lesser cases, where damage is light, such a case would not be pursued anyway. But where a serious pollution incident occurs and where it may not be easy to establish exactly the degree of innocence in a complex system of a factory on the banks of a river, for example, it would impose an almost intolerable burden on the regulator if he had to overcome that defence.

My noble friends say that it would be justice; I understand that. But I am not sure that it would be justice to see a rapid deterioration in river quality or at best a halt to the considerable improvements that have been obtained because we have effective law that can be effectively enforced. Before the Committee accepts the amendment too readily, it must be recognised that from the point of view of the regulator it will impose a massive handicap. The example of Canada was cited. Has my noble friend inquired as to the extent of litigation in Canada as a consequence? I believe he will find that it is extremely heavy. My inquiries did not lead me to think that it would be an encouraging precedent if we want effective regulation.

The Earl of Onslow: Before my noble friend sits down—

5.15 p.m.

Lord Elton: Amendments Nos. 358ZA and 378BA in my name are grouped with Amendment No. 335ZBB. Perhaps I may interpolate briefly because I may say what my noble friend Lord Onslow was about to say. I tabled the amendments in ignorance of the amendment to which he and my noble friend spoke and therefore I want only to touch the edge of the matter and respond to what my noble friend Lord Crickhowell said. I am not sure that the difficulty that he sees is as real as he believes it to be.

My noble friend said that the result of accepting the amendment would be to place upon the regulator the duty to prove knowledge. But the defence proposed does not require that proof, as I understand it. I am not a lawyer and I hope that somebody who is a lawyer will correct me if I am wrong. It is proposed that the onus of proof should lie with the defendant to show that he did everything in his power to prevent such an occurrence. That does not mean saying, "I am sorry, I did not know about it", which is the defence which my noble friend Lord Crickhowell believes would lead to these calamitous consequences.

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Like my noble friend, I should like to avoid those calamitous consequences. I do not believe that in order to do so it is necessary to saddle with a criminal conviction a person who, to all moral appearances, is entirely guiltless. My noble friend says that mitigation would be taken into consideration and only a nominal fine imposed. But that does not mitigate the fact that the person in question holds a criminal record if not for the rest of his life, until the record expires after many years, which will prevent him from, among other things, visiting the United States. If my noble friends and I have this matter right, I hope that my noble friend Lord Ullswater will look kindly on the amendment.

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