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Lord Monson: Can the noble Lord, Lord Lucas, confirm that he intends to move Amendment No. 10 separately from Amendment No. 9? The amendments are not grouped together. The case for Amendment No. 10 seems to be overwhelming, the case for Amendment No. 9 less so.
Lord Lucas: The noble Lord is quite right. We should be paying attention to Amendment No. 10. What I was hoping to establish and to agree with the noble Lord, Lord Clement-Jones, was the nature and effect of the reversal of the burden of proof. If we can come to some agreement on that and understand how the Bill will operate in practice it will be a good deal easier to get through the many amendments of mine and those tabled by other noble Lords which address the consequences of the fact that the burden of proof has been reversed in the Bill.
Pace the noble Lord, Lord Peston, I should like to remain as theoretical as possible on the amendment because I do not have a practical point to make. We can come to the practical point about printers on the next amendment. I look forward very much to hearing what the Minister and the noble Lord, Lord Clement-Jones, say because I suspect that I may need to rejoin battle. With this amendment I should like to establish the principles on which we address all future amendments on the subject.
The Earl of Erroll: I thought the noble Lord was responding to just that one point made by my noble friend. I want to make a point about printers and absolute offences.
Lord Lucas: I shall be moving that amendment.
The Earl of Erroll: A large firm of printers which is just churning work through is not going to read all the pages because that is done elsewhere. A print shop receives electronic copy. It will not be checked or anything like that because that is the responsibility of the person providing the copy. It will go through the machines and people will check that the print quality is all right. The material will be bound, bundled and possibly posted straight out without any human
interference. It is purely a mechanical process. Printers are not publishers and they are not the people who check the content. That is a very valid general point.I turn now to the absolute offence. I shall give an example. Many years ago when some of the first cannabis smoking legislation was introduced, it became an absolute offence to own a property on which cannabis was smoked or drugs were taken. A woman who lived in Spain owned a property in Oxford. Agents let the property to student tenants. The agents maintained the property which the woman never visited. At some point the police arrested the students for taking drugs.
As it was an absolute offence to own property on which drugs were taken, the woman was prosecuted. As a result I believe that the law was changed because it was felt to be so unfair. But there was no defence against the charge even though the woman could not possibly have known that drug taking was occurring. That is the nature of absolute offences. I do not like them and have objected to them before in relation to the wearing of riding helmets. There was the same kind of problem. There are no defences. I shall be very interested to hear the response to this amendment.
Lord Hunt of Kings Heath: I had wondered why the noble Lord, Lord Lucas, had not grouped these amendments. Now we discover that he wishes to hear the first response and then have another try. In essence, a balance is being drawn in the Bill in a number of places. It seeks to be quite vigorous and tough in relation to tobacco advertising, which is absolutely right. It also seeks to be fair and to avoid loopholes. I believe that anyone who has considered the discussions on tobacco advertising and some of the papers which have leaked from the tobacco industry will recognise that the question of loopholes is very important.
If one looks at the effect of the noble Lord's amendment one sees the problem. It could allow an "ostrich" type defence for someone who closes their eyes to the likelihood that he or she is involved with a tobacco advertisement. But there are sufficient safeguards. The noble Lord is right to refer to one of the defences in Clause 5(2) which states that it is a defence for a person who could not reasonably have foreseen the effect of the advertisement. The noble Lord referred to a list of 10 Acts which were included in a Written Answer. My understanding is that there are many other Acts which contain similar provisions.
The fact is that a criminal prosecution has to establish the guilt of the individual beyond reasonable doubt. It is a high standard of proof. The obligation means proving not only all the ingredients of the offence, but also negative any defence put forward. So in effect all a defendant need do is to prove the ingredients of one of the defences on the balance of probabilities which the prosecution must rebut. If it cannot do so, the prosecution will not have discharged the burden of proving the allegation beyond reasonable doubt. On that basis the accused will undoubtedly be acquitted.
I believe that the Government and the noble Lord, Lord Clement-Jones, have the balance right in setting out what are the exact provisions under which a person may be prosecuted, but also setting out a number of targeted defences. I do not believe that that is unreasonable.
1.15 p.m.
Lord Clement-Jones: In essence we are arguing whether the treatment under the Bill of a person in those circumstances is proportionate to the problem we are trying to remedy. I believe that the language used in changing the burden of proof is not particularly helpful in these circumstances. I do not believe that it is accurate because the defences under Clause 5 are not the same as shifting the burden of proof. That is because of the way in which the onus can revert if an arguable case for such defences is made. That is a very important point.
Let us look at some of the other Acts that have used a very similar type of offence followed by the defences available. I refer to the Food Safety Act, the Consumer Protection Act, the Children Act, and the Human Fertilisation and Embryology Act. The noble Lord, Lord Lucas, obviously has had notes on all those Acts which use that particular technique. The issue is policy. The Minister has explained the legal way in which it operates in court. The noble Lord, Lord Lucas, said it was a question of how a person, under the provisions of Clause 1 and so forth, will be able to present a reasonable defence.
I was taken by the way in which the noble Lord, Lord Hunt, spoke about the "ostrich" aspects of the matter. It is not good enough for someone to close their eyes as to whether there is an advertisement in whatever it is they are producing, be it a newspaper or print material. The Bill goes further because if it is the standard practice of a printer to print pornography, racist material or smoking advertisements without checking the content then he may, even in those circumstances, have a defence because he did not know and had no reason to suspect. I suspect that a canny QC would say, "It is not the practice of the print industry to look at anything they print. They only look at the colour separations, your Honour". That is a possible defence.
The Earl of Erroll: He may not be able to afford a QC!
Lord Clement-Jones: That may be so, but there are some jolly canny younger barristers as well! In all the circumstances I believe that the provisions we have in the Bill are proportionate and that those canny younger barristers will be defending the printer if that is needed. I believe it is shocking if they do not look at their material, but if that is the custom of the trade they will be defended perfectly adequately.
I urge the noble Lord not only to withdraw the amendment but also those which apply to printers, distributors, newspapers or coupons and all the various aspects. We are having an important debate. The question is whether we can save 3,000 lives a year
and if that is the case, it is worth having a Bill which has provisions of this kind with very reasonable defences available. My answer and that of the Minister is clearly yes.
Lord Lucas: I am very grateful to both the Minister and the noble Lord, Lord Clement-Jones. I believe that we have reached agreement on the format of absolute offence and defence. In other words, the Bill puts a duty of care on the potential defendant to make sure that he or she is not committing an offence. I see both noble Lords nodding. I hoped that we would agree on it and I am content to withdraw my amendment.
Amendment, by leave, withdrawn.
Clause 2 [Prohibition of tobacco advertising]:
Lord Lucas moved Amendment No. 9:
- Page 1, line 9, after "business" insert "knowingly"
The noble Lord said: With Amendment No. 10, we come on to the particular. We have two possible scenarios. Someone has printed a tobacco advertisement. It has a nice glossy picture and happened to incorporate in some part of it a piece of silk material with a cut in it, though it was not obvious that it was in any way a tobacco advertisement, but might be taken to be that. We can either have an offence where the prosecution has to prove that the printer did this knowingly, or one where the printer has to prove that he did not know and had no reason to suspect the content. In doing that, he will have to prove that he had systems, which meant that he had to look at every single thing he was printing with a view to deciding whether it was or might constitute or have the effect of a tobacco advertisement.
It seems to me that the process of printing, whether in-house as part of a publishing operation or as part of a separate operation, is not something where that burden of care should be placed. There is no reason why a printer should have to go through every page of what is printed. If they knew they were printing tobacco advertisements or indeed racist material, as doubtless many printers of racist material would do, it ought to be possible for the prosecution to prove it. So I do not mind an ordinary offence, a "knowingly" offence, against a printer. If he is involved in a conspiracy to produce a tobacco advertisement—a truly heinous crime—then he should be strung up for it! But I do not see why an ordinary printer, going about his ordinary job of just taking in a disk, should be penalised. The printer does not check what is in it: he just gives me back a book and he is concerned over how the print appears on the page—if it is square on the page and if the pages do not fall out when you hold the book up by its cover. That is about the limit of it.
There is absolutely no reason why he should check it, for instance, for libel. A book that I publish might well contain a libel, but why should the printer be liable? He is not meant to check it for libel. It is not an absolute offence. If he knew it was a libel, fair enough; but otherwise why should he have to go through every page of it to check that I am not libelling some school or some headmaster. It seems to me that the burden of
care should not be on the printer, qua being a printer. If the prosecution can prove that he knew, fair enough; otherwise I believe the printer should escape liability under the Bill.
The same should apply to a distributor. I think of the ordinary corner shop selling magazines and one of those magazines contains a tobacco advertisement. Is it being suggested that every single corner magazine shop has to go through every edition of every magazine on its shelves to make sure that it does not contain a tobacco advertisement? That is what the Bill provides at the moment. It imposes a duty on these people who are far too far down the chain to be of any real significance in checking. I really do not think that should be the case. It is fair enough to bring in the middle people—those who devise an advertisement—because they are involved in the intellectual process of putting an advertisement together. I believe they ought to share the publisher's liability under Clause 2(1). But I do not believe that the two other classes of person should have this duty of care imposed on them. I beg to move.
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