Mr. O'Brien: I am just coming to that. Whether characteristically or not, the hon. Member for Gainsborough, who spoke in his barristerial capacity, was very helpful in that regard.
The right hon. Member for Suffolk, Coastal referred to a landowner who knowingly permits a hunt to use his land for hunting with dogs. He asked whether he would be likely to put himself at risk if he did nothing to revoke consent, given that he knew that the hunt regularly crossed his land for that purpose. He would indeed put himself at risk, but the real question is to what extent. In the right hon. Gentleman's case, the view might be taken that consent was given before the legislation was enacted. The courts would want to establish whether the right hon. Gentleman was law-abiding, and I am sure that they would feel that there was other evidence to suggest that he normally abides by the law.
The burden will always be on the prosecution to prove guilt beyond reasonable doubt. Given what we know about the right hon. Gentleman, it is unlikely that he would be at serious risk of prosecution. Because he was aware of the law, it is unlikely that he would have given permission to break it. However, another landlord might be known to break the law on occasion, and might not have the good character that the right hon. Gentleman would be able to impress on the court.
As the hon. Member for Gainsborough said, the person in question must have knowledge of all the material circumstances of the offence. I stress the word ``material'', because the courts must determine what is material to proving knowledge in a given circumstance, and the prosecution must prove knowledge beyond reasonable doubt. The hon. Gentleman was also right to say that knowledge can consist of wilfully shutting one's eyes to the truth. Again, the question of whether a person has acted in that way is a matter of evidence.
What advice would be given to a person who knew that a hunt was likely to cross his land? Quite properly, he would probably be advised to exercise caution. The right hon. Member for Suffolk, Coastal asked what we should do about fear of transgressing the law until it is clarified by the courts. We would all agree that anyone who feared that they might be transgressing the law should act with due caution. There is nothing wrong with telling someone who is close to breaking the law that they should exercise a fair degree of caution; it is only right and proper that they should.
If someone in the right hon. Gentleman's position knew that a hunt to which he had previously given permission intended to cross his land illegally, perhaps he should have taken action to show that such permission would not continue. He could make a telephone call and retain some evidence of it. [Interruption.] I am not offering an opportunity in that regard. He should perhaps write a letter and ensure that he keeps a copy, or telephone the police and say, ``I understand that the hunt might try to cross my land, but I am not giving them permission.'' That would constitute evidence that he has not given permission and, therefore, that he has not committed an offence.
Mr. Leigh: Will the Minister give way?
Mr. O'Brien: No, not at the moment.
Whether or not the right hon. Member for Suffolk, Coastal has informed the police, the prosecution must always prove that he has done something ``knowingly'', and that that amounts to ``permitting''. The prosecution must provide evidence of that beyond a reasonable doubt.
Mr. Gummer: The matter still worries me. That interpretation suggests that people going about their normal, reasonable business in the countryside could feel that at some future point somebody might say, ``You must have known that a hunt was around here, and you should have done something.'' That is what I understand the hon. Gentleman to have said, and I understand that the further point that it would have to be proved in court covers it. However, I hope that he recognises how serious this is. A new responsibility, from which people cannot opt out or in, is being placed on their shoulders merely because they live in a particular place. I cannot thinkalthough perhaps the Minister can tell meof an exact parallel in other legislation, which concerns me and will concern many country people.
Mr. O'Brien: The right hon. Gentleman is overdoing it. He is trying to claim that I have suggested that someone saying to a farmer, ``You must have known'', is sufficient to justify a prosecution. Of course it is not. It is nowhere near sufficient to get the police to make an inquiry. We would require clear evidence that would prove beyond a reasonable doubt to any court that the person knew and permitted in order for there to be a prosecution.
Mr. Leigh: No.
Mr. O'Brien: I hear the hon. Gentleman say no, but I have already indicated that knowledge can be explicit or implicit, which perhaps deals with the reason why he said ``no''.
The prosecution must prove its case and it must provide evidence. Therefore, the risks and fears that the comments of the right hon. Member for Suffolk, Coastal might raise in the minds of those who live in countryside, such as my constituents, are not founded on any realistic prospect of any type of prosecution. The prosecution must prove its case beyond reasonable doubt, so unless there is evidence, it will be unable to do so. There is no realistic risk of a prosecution of the type that he is trying to create the fear of in the countryside.
Mr. Leigh: Can we clear up this point? The Minister is constantly referring to permission, but does he accept that my right hon. Friend does not have to permit, implicitly or explicitly, anybody to hunt in order to be guilty of the offence? All he has to have is knowledge of the material circumstances.
In response to the hon. Member for Pendle (Mr. Prentice), ``deliberate'' is a better word. ``Deliberate'' is not referred to anywhere in ``Archbold'' because the courts know that ``deliberate'' is absolutely clearit relates to mens rea. To be guilty of an offence, one must deliberately set out to commit it, and know that one is doing it. Therefore, ``deliberate'' is clear, although ``knowingly'' is subject to confusion.
I have a direct question for the Minister: can my right hon. Friend the Member for Suffolk, Coastal be guilty without ``permitting'' anybody to do anything?
Mr. O'Brien: The right hon. Gentleman cannot be guilty unless there is evidence that he knowingly permitted the activity. There must be evidence of that. If a hunt crosses his land, that does not mean that he permitted it to do so or that he knew that it was doing so. He must be aware of that and have that knowledge. The hon. Member for Gainsborough stated the position clearly: there must be knowledge of all the material circumstances of the offence. Unless that is shown explicitly, with an element of consent, it would not be possible to prosecute. The phrase ``knowingly permits'' is widely used in statutory offences and I shall give an example.
Section 35(1) of the Sexual Offences Act 1956 states:
Mr. O'Brien:Hon. Members may, or may not be, familiar with that provision. I give way at this point to the right hon. Gentleman. [Laughter.]
Mr. Gummer: Will the Minister allow me to tease out the one point that is now worrying me? I understand what he means about ``knowingly''. The real question is whether there is a separate issue concerning ``permit''. One could conceive of someone knowing that something is likely to occur and being in full possession of the facts, so ``knowingly'' would apply. What does ``permit'' consist of? What does he have to do, having been thought to ``knowingly permit'' or actually permitting? To protect himself, would he simply have to inform someone that he knows and that he did not intend to permit, or would he have to take some other action? Would that action be connected with his ability to take it? For example, if there were a lot of people around and he could, therefore, take action, would that be necessary? If he were not present, would he have to put himself in a position to take action? It is a difficult connection to make.
Mr. O'Brien: The right hon. Gentleman raises a complex issue. There is the question of what someone is required to do to prevent being prosecuted and there is the question of what someone would be wise to do to ensure that there is absolutely no risk of ever being prosecuted. Those could be two entirely different matters. If someone wishes to exercise the level of caution that many of us might wish to exercise, he could put up signs, write letters or talk to the police and make it clear that he does not give permission. However, if he does none of those things, it is still for the prosecution to prove that he knowingly permitted.
What amounts to permitted? Permission can be expressed or implied, formal or informal, written or unwritten. It is for the prosecution to show that it existed. It will be much more difficult to show implied permission than express permission because the prosecution would have to produce evidence of the former. Likewise, it will be more difficult to show informal permission than to show formal permission because there will be a lack of evidence. There is great protection for people in rural areas about whom the right hon. Gentleman and I are concerned. The prosecution must always have evidence to prove its case beyond reasonable doubt.
The safeguards exist; I have emphasised throughout our debate that the phraseology is not a risk, but a safeguard. To change it would reduce the safeguards.
Mr. Öpik: The argument alludes to a point that was made on a previous amendment. The Minister will be aware of my view that this is probably one of the key areas in which the law will be tested. He will presumably confirm that the question of coercion again arises. He need not repeat his points, but interpretation of the Bill is likely to come under scrutiny with repeated test cases around the country. Various precedents will be set which may undermine the intention of this part of the Bill.
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