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Lord Filkin: My Lords, I respond to the invitation to ensure that legislation, when passed, is enforced. This is a matter for the Office of the Information Commissioner. If the noble Lord will give us specific examples of junk faxes he has received recently, the Government will be delighted to seek to prevent the cost falling on him and draw them to the attention of the Office of the Information Commissioner. I invite the noble Lord not to hold his breath about too sudden a cessation.
Lord Skelmersdale: My Lords, so far as concerns this Government, especially having looked this morning at the front page of the Daily Telegraph, I shall not hold my breath on anything. That said, there was no answer to my question about junk teletext messages which are another method of advertising. If I do not receive a somewhat speedier reply than the letters I have had recently from the Department of Health, it will be necessary to put down a somewhat substantive amendment at Third Reading, In the meantime, I beg leave to withdraw the amendment.
Lord Filkin: My Lords, before the noble Lord sits down, perhaps I may say that the position on mobile
messages and teletexts is exactly the same. There is a law against them which does not appear at present to be automatically enforced. I note the point about the correspondence and the implied threat. We shall no doubt look to it.
Lord Skelmersdale: My Lords, since clearly the noble Lord has decided that I had not sat down I can respond. I am delighted to hear his response. It sounds as though my utterances about Third Reading and the preparation work entailed will be somewhat more limited than I threatened. I still beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 10 and 11 not moved.]
Clause 5 [Advertising: defences]:
Lord Clement-Jones moved Amendment No. 12:
The noble Lord said: My Lords, I cannot follow the procedural elegance which preceded the withdrawal of the previous amendment.
I wish to speak to the 30 amendments on the Marshalled List which bear my name and which I hope that the House will agree should be included on the face of the Bill. At Second Reading and in Committee, many noble Lords expressed concerns that the wording surrounding the burden of proof for some of the offences under the Bill was not quite right. The noble Lord, Lord Lucas, among others, expressed concern that the Bill risked creating an absolute offence and a conditional defence. The noble Lord believed that this was an excessively high hurdle for some of those, in particular printers and newsagents, who are involved in the supply chain for a tobacco advertisement. The Bill, rightly, places a duty of reasonable care on these people to ensure that they are not knowingly distributing a tobacco advertisement. These amendments are being laid in order to clarify exactly what this duty will consist of and I hope that they will go a long way towards easing some noble Lords' concerns.
The principle of the Bill is unaffected by these amendments. Anyone, at any point of the supply chain for tobacco advertisements, will still be committing an offence if they participate in the distribution of tobacco advertisements.
The lawyers present in the House today will be aware that in a criminal trial the prosecution has to establish guilt beyond reasonable doubt. That consists of proving the offence and negating any defence which is put forward. These amendments address the nature of the burden placed on the defendant and take account both of the debates at Second Reading and in Committee and the recent court judgment of R v Lambert heard recently in this place. They remove the need for defendants to "prove" that they were acting reasonably as on reflection it would be wrong to require a defendant to cross this threshold of proof. Instead, it places a duty on defendants to bring forward credible evidence in support of their defence.
If the evidence is sufficient to raise an issue on the matter then the prosecution must satisfy the court that the evidence brought forward is unacceptable beyond reasonable doubt.The issue with these amendments is that they change the nature of the burden on the defendant from a legal or persuasive burden to an evidential burden. They must produce evidence but they do not have to prove anything. That is for the prosecution. For example, Clause 5(2) states:
Amendment No. 63A, which is a new clause to the Bill, will clarify each of the earlier amendments and make it clear that the court shall assume that the defence is satisfactory unless the prosecution can prove beyond reasonable doubt that it is not. This creates an evidential, rather than legal, burden on the defence and ensures that the legislation is on all fours with the European Convention on Human Rights. Having this additional clause is necessary. It leaves no doubt as to the meaning of the earlier amendments and is thus an essential part of the Bill.
Having had an excellent debate in Committee, and having considered the points made, I hope that these amendments go a long way towards satisfying those points and will be acceptable to the House
Lord Lucas: My Lords, I am delighted that the noble Lord is bringing forward these amendments. When he replies, I hope that he will feel able to enlarge slightly on their effect. Whatever time that takes, it will be a great deal less than the time I shall take on the subsequent group of amendments when arguing that the print and related industries should be allowed to continue their current trade practices.
In Committee, things were said, notably by the noble Lord, Lord Clement-Jones, which implied that the print industry would have to change its practices: that it would be necessary for the print industry to read everything it printed. The noble Lord was fairly fierce about that. That is not practical at present for the printing industry. If you are printing a magazine you probably receive it in electronic form about eight hours before it is due to hit the news stands. It goes straight on to the presses without anyone having anything to do with it. A press minderhe is not legally qualifiedmakes sure that the machine prints straight on the page. Once printed, it is automatically collated, bound and packaged. Nowhere in that process can one be sure that anyone will have a chance to see what is being printed.
If that process is delayed perhaps by a dayit occurred recently when the press minder noticed what he thought might be racist materialyou are probably
liable to recompense the publisher for 30 per cent of its sales if wrong. These are ephemeral issues. One has to be put on notice that it is a publication where care is necessary: that it is a publication where a tobacco advertisement has occurred before or which is likely to contain a tobacco advertisement.McLaren's own publication, Racing Line, is entirely a tobacco advertisement. There is not a picture in it which does not contain a tobacco advertisement except one diagram of a race circuit which I cannot make into a cigarette! It is clear that anyone printing that magazine will have to take care. I do not think that there will be difficulty in printers accepting liability. But if, as printer, you are printing the Economist against that magazine's deadline, you cannot be expected to do anything.
I want to be sure that we are not enacting any provision which could result in some sort of practical "creep" whereby trading officers say, "No, you should be checking", and which would have enormous cost implications for an industry which is performing a service rather than executive creation or consideration of a tobacco advertisement. I understand that the amendments will address that problem in which case I and this House will have an easy time with the next group of amendments. I hope that the noble Lord, Lord Clement-Jones, will be able to help.
I thank the noble Lord for making these changes. As I understand them, they remove a lot of my concerns.
Lord Hunt of Kings Heath: My Lords, I thank the noble Lord, Lord Clement-Jones, for bringing forward these amendments. I believe it is testimony to the spirit in which the Bill has been debated that, in the light of the discussion at Committee stage, particularly about the concerns expressed by the noble Lord, Lord Lucas, and others in relation to the offences created by the Bill and what was expected of a person charged in order for him to be able to rely on any of the defences provided, the 30 amendments put forward by the noble Lord go a long way to meet those concerns.
My understanding is that the key change arises here from the basis that in a criminal prosecution the prosecution has to establish the guilt of the individual beyond reasonable doubt. That is a very high standard of proof. The obligation means proving not only all the ingredients of the offence but also negating any defence that is put in issue. My understanding is that these amendments address the burden placed on the defendant and what is required of him if he is to avoid conviction.
After due consideration, I believe that the noble Lord, Lord Clement-Jones, is right to consider that the wording presently in the Bill, with the requirement to prove an element of a defence, means that a defendant would be expected to establish that it is more likely than not that the facts were as he alleges. If he fails to do so then he will be convicted.
On reflection, it would be wrong to require a defendant to cross that threshold in order to be acquitted. Indeed, we believe that it could well be inconsistent with the
interpretation given by the courts to Article 6.2 of the European Convention on Human Rights, which requires that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. Our understanding is that the amendments therefore make clear that what is required of a defendant charged with an offence under the provisions of this Bill is to bring forward credible evidence to support his alleged defence. If the evidence is sufficient to raise an issue on the matter, then the prosecution has the burden of satisfying the court or jury on the matter beyond reasonable doubt in the ordinary way. I believe that this is a distinct improvement. I hope that it will reassure noble Lords. The Government would certainly support the amendments.
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