Mr. O'Brien: Any commitments from the CPS will be given by the Lord Chancellor's Department, the CPS and the appropriate authorities rather than by me. I have simply set out the position on prosecution and the policy considerations of the CPS before undertaking prosecutions.
Mr. Leigh: With respect, I do not quite understand what that intervention means. The Bill is not yet an Act. Of course I cannot know what discussions have taken place between the Home Office and the CPS, but the CPS, although a wholly owned subsidiary of the Government, is presumably independent. My hon. and learned Friend wishes to intervene and can give a more considered judgment on this matter.
Mr. Garnier: I merely wanted to place in my hon. Friend's mind a doubt about the Minister's remark. He is a Minister in the Home Office, but he said that the Lord Chancellor would give the undertaking on behalf of the CPS. The Lord Chancellor is a man of huge ambition and no doubt wants to take over every Government agency on which he can lay his hands. As I understand itI am the shadow Attorney-Generalthe CPS is politically responsible via the Attorney-General, not the Lord Chancellor. I am sure that the hon. Member for Liverpool, Wavertree (Jane Kennedy), who is Parliamentary Secretary to the Lord Chancellor's Department, would be the first to admit that the Lord Chancellor, despite his many charms and abilities, has yet to lay his hands on the CPS.
Mr. Leigh: Following that intervention, it is clear that the Lord Chancellor would not give the undertaking. I assume that the Minister is correct in saying that the matter is not one for him, so we return to the point that he is not entitled to give a commitment on behalf of the CPS.
I find it extraordinary that we are enacting a provision that is so weak in its efforts to carry out Parliament's intention to abolish hunting that the Minister feels obliged to say that those charged with upholding the law will not use it to prosecute. What, therefore, is the purpose of paragraph 3?
All that leaves aside the question of private prosecutions. Many people in the League Against Cruel Sports and similar organisations are anxious to take up the campaign. It is perfectly possible that a gamekeeper carrying out his normal functions could be the subject of a private prosecution not under paragraph 1, but under paragraph 3. That is why this debatealthough it has been characterised by virtuoso performances and the occasional bit of merrimentand paragraph 3 are actually rather important. If retained, paragraph 3 could result in considerable mischief, in that a gamekeeper carrying out his normal duties could be prosecuted under the Bill.
For that reason, I want to consider what would happen in such an eventuality and the probable result of retaining the paragraph.
The difficulty is that in such a circumstance a gamekeeper could rely on paragraph 8, which states:
If a gamekeeper were the subject of a prosecution under paragraph 3, he could therefore produce a defence under paragraph 8. However, in doing so the burden of proof would be shifted from the prosecution to the defence. The gamekeeper, a man of modest means and salary, who does his normal job and is not involved in any form of sport, would have to prove beyond reasonable doubt that he was engaged in rodent control. That is rather worrying.
Mr. Garnier: My hon. Friend's point is a good one, save one thing. I suspectthe Minister might confirm thisthat the standard of proof required of a defendant is the civil, not the criminal, standard. Nevertheless, his overall point is unarguable.
Mr. Leigh: I apologise. The burden of proof, albeit that which is required in civil trials, shifts to the gamekeeper.
One complication of the procedure is that the burden of proof shifts during the trial. Under paragraph 8, it is placed on the gamekeeper, but under paragraph 3 it shifts back to the prosecutionwhich presumably has to prove it to the criminal standard. That is potentially complex.
We now come to the heart of such a trial, which would turn on the question of whether, when the gamekeeper or other person was walking the dog, they knowingly permitted it to hunt the rabbit. The phrase ``knowingly permits'' is therefore important. I shall not repeat the arguments that I advanced on Tuesday in relation to paragraph 2, although some of them apply in this case. I believe that I will be in order if I allude briefly to what I said: the courts will consider knowledge on the part of the offender of all the material circumstances, and wilfully shutting one's eyes to the truth is not a defence.
The gamekeeper or dog walkerin contrast to the landowner whom we discussed on Tuesdaywill be placed in serious difficulty. Given the way in which the paragraph is phrased, it is possible that prosecution of such a person will be successful. In terms of knowledge, all the prosecution has to prove is that the person was aware of all the material circumstances. In all the previous cases that courts have discussed in which knowledge was an issue, some doubt was present as to whether the defendant was aware of the material circumstances. In a case such as this, there can be no doubt.
The three exhibitsas they might be describedare the owner, the dog and the dead rabbit. As there would presumably have been witnesses to the act, it would be relatively easy for the prosecution to prove that the dog had killed the rabbit and that the gamekeeper was in control of the dog at the relevant time. It would then follow that the gamekeeper should have been aware of all the material circumstances, and that he must therefore be guilty.
Some people have approached the matter with a degree of levity, saying that that will not happen in the real world. However, I am in possession of recent publicity from the League Against Cruel Sports, which takes a dim view of the practice of gamekeeping and of the people who make a living from it. It argues that gamekeepers artificially interfere in the countryside and destroy wildlife in order to protect stocks of partridges and pheasants. It is possible that a prosecution could bring a test case to prove that a gamekeeper was guilty of such an offence. That would be no laughing matter for the gamekeeper. If found guilty, he would face the prospect of his dog being destroyed, a £5,000 fine, probably the end of his career, and great difficulty, given his limited ability to pursue other careers, in keeping any job. It is therefore a serious matter. It will be too easy for the prosecution to successfully bring a case.
In the debate on Tuesday, the Minister implied that the phrase ``knowingly permits'' in paragraph 2 was absolutely clear. Arguably, he may have had a point. Section 26.87 of the new 2000 edition of ``Archbold'' states:
In other words, suspicion per se is not enough to constitute permission, but knowledge of one kind or another is essential to permission.
The Chairman: Order. We had an extended debate on those words on amendments Nos. 38 and 39. The debate on ``knowingly permits'' may fairly be said to be over.
Mr. Leigh: I take your guidance, Mr. O'Hara. I am not trying to make a silly point. I am trying to have a serious discussion of the lawand this is Parliament, where we are trying to create good law. The phrase to which I referred was not one I talked about on Tuesday. I deliberately did not go back over the part of ``Archbold'' with which I dealt then. I am referring to a new part.
The Chairman: Order. That may be, but amendments Nos. 38 and 39, which have already been debated, certainly refer to the words ``knowingly permits'' and they were discussed. The debate now is whether paragraph 3 as a whole improves or diminishes the Bill. That should be the purpose of the debate.
Mr. Leigh: I accept your interpretation, as I must, Mr. O'Hara.
Mr. Garnier: We all do, Mr. O'Hara. My hon. Friend is making the point that there is a distinction between the knowledgeable permitting of a dog to do certain things and the knowledgeable permitting of the use of land. There is quite a difference between a dogan animate objectand land, which is inanimate, as there is in concept between knowingly permitting the use of land and knowingly permitting the use of a dog.
The Chairman: Order. Amendment No. 39 specifically refers to line 32, which includes the words ``knowingly permits''. That is part of the paragraph, the inclusion or exclusion of which is being debated.
Mr. Leigh: Paragraph 3 is an onerous onea point made at some length, but of course extremely well, by my right hon. Friend the Member for Suffolk, Coastal. Paragraph 3 is so much more onerous because refers to an animalalbeit a dog of which one is apparently in controlthat is simply obeying its natural instinct. I believe that we are starting to hit home with our arguments on the matter. There is some understanding that our arguments are not time-wasting ones, but have serious import. There is difficulty in invoking the criminal law as it has been interpreted in the past when one is dealing with a dog that is simply trying to do what comes naturally to it.
Mr. Garnier: I seek the guidance of the Chair, Mr. O'Hara. During your advice to us a moment ago, you referred to amendment No. 39, which also deals with paragraph 3 and would leave out ``knowingly permits'' and insert ``gives express permission for''. I may be wrongyou will correct me if I ambut I understand that amendment No. 39 has not been selected. We are discussing amendment No. 44.
The Chairman: Amendment No. 39 was selected and included for debate with amendment No. 35.
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