Mr. Leigh: Before we finish, I want to take up a point that was raised by my hon. Friend the Member for Mid-Sussex and to illustrate it with reference to the two hunts that operate in my constituency--the Brocklesby and the Burton hunts--which are organised differently.
The Brocklesby is one of the last remaining packs of pure-bred foxhounds in the countryif not the only onegoing back to the 18th century. It would be a tragedy if those hounds had to be put down, but that is not what we are talking about. It is true that the Brocklesby is entirely owned by the Earl of Yarborough. He is a master of the hunt, but there are others. The Burton hunt is differently run. Again, it has masters, but, as I understand it, it is a body corporateowned, or at least directed, by the officers. I suppose that the argument in the case of the Burton is clearer, but I do not know what would happen in the case of the Brocklesby.
Just for the sake of argument, who would be responsible if an offence were alleged to have been committed? Would it be the huntsman, who is hunting the hounds at the time when the offence is committed? Would it be the masters who form the committee? Would it be the owner? Those are interesting questions and we need to be sure about the answers.
I am grateful for the Minister's reply to my question whether one could be construed as conniving if one did not check and monitor activity. He said that it was an important question, and seemed to give a fair answer by saying that one must have knowledge: the court must prove that the person knew what was going on and, although he did not expressly give consent, because he knew there was implied consent.
I should have asked the Minister a different question, and I should be grateful if he tried to clear up the matter, if he has a moment. What happens if the person did not know but suspected? I am worried that the paragraph imposes an obligation. Under threat of criminal liability, the Bill puts an obligation on every officer of this body corporatethe owner, the master or the huntsmanwho suspects that an offence may be committed to prevent it. It is an inappropriate obligation to place on people who merely suspect that something may be going on.
Mr. O'Brien: I am not sure that the hon. Gentleman wants to take this line. Is he is saying that, if I suspect that a criminal offence is being committed, I should not be under any obligation, moral or otherwise, to report it to the police?
Mr. Leigh: That is a slightly different point, but my hon. and learned Friend the Member for Harborough, who will wind up the debate for the Opposition, may be able to deal with it. In a way, we are going back to the interesting points made last week by my right hon. Friend the Member for Suffolk, Coastal. If one suspects a burglary is taking place, is one under an obligation to report it to the police? Does one commit a criminal activity if one does not report it? Of course not. If one suspects that hunting is taking place, is one under an obligation to report it to the police? If one does not report it, is one therefore liable to criminal liability? I do not know the answer to that. I am not sufficiently skilled in this area of law to know the answer; we need clear guidance from Ministers.
I know what the Minister is trying to achieve. He is trying to stop people who want to avoid the responsibilities laid down in earlier paragraphs and to shelter behind a body corporate. That is fair enough; it is his job to make the Bill watertight. However, he does not want to put too onerous a burden on those who are not conniving and do not have knowledge, but may suspect what is going on.
Mr. O'Brien: I hear what the hon. Gentleman says. That is a reasonable point. He is asking whether a person who has a mild suspicion is at any risk of criminal prosecution. The offence and the notion of conniving require knowledge, not mere suspicion. Therefore, I do not think that the point that he has identified puts anyone at risk. If a person has a suspicion that something might happen, that is insufficient; if he knows that something is happeningclearly, the prosecution must prove knowledgehe would be at risk.
Mr. Öpik: I do not have a problem with the paragraph dealing with bodies corporate, but wish to comment on the word ``connivance''. I have been thinking about what the Minister said earlier and counsel him to acknowledge that an issue is developing with regard to the term ``connivance''.
For example, in the Montgomeryshire hill pack, which is the example that I know best, the hunt master tends to look after all the dogs. The farmers know where the hunt master will hunt, and they watch him unload the dogs from the back of a trailer. The hunt master then tells the assembled mass where he intends to go. Everyone else pretty much watches; they do not actively get involved in any aspect of tracking or killing the fox. Does that constitute connivance? I am comfortable with the Minister's comments about bodies corporate, but it is necessary to define clearly what constitutes connivance. I am sure that he understands my point, and I welcome his views.
Mr. O'Brien: Connivance requires more than mere specificity. It requires an active knowledge and some other act to show that there was implicit consent to use the land or someone's dogs. Connivance is about an offence for which knowledge plus something else is required. I have described implicit consent. If someone were merely on his own land or in his garden watching a hunt unload, and was not participating or giving consent to use of the land, that would not be an offence. Such people would be spectators and not involved in the act. Likewise, if I see a burglary occurring and I am passive, I am not committing any offence. However, if I were to help the burglar to get out of the window, I would be putting myself at some risk.
Mr. Öpik: That is very interesting. It goes without saying that the act of observing on foot or sitting on a horse would not make me any more culpable than if I simply observed from a distance someone unloading dogs. If the Bill is enacted in its current form, this issue will be extremely important.
Mr. O'Brien: Certainly, sitting on a horse is not an offence. If the horse were normally used for the purpose of hunting, and I was a huntsman who usually went to a place where hunting took place, I would certainly be putting myself at a huge risk of a jury concluding that I had sought to breach the legislation. I am not sure that the difficulties that the hon. Gentleman is trying to identify are really there. The mere act of sitting on a horse is not an offence, so it is not covered by the schedule. A jury would consider all the surrounding circumstances before concluding that an offence had been committed. It is possible to envisage that sitting on a horse, plus the rest, might add up to an offence being committed.
Mr. Bercow: Will the Minister comment on the situation in which a landowner is aware that hunting may take place on his land on dates as yet unspecified, but is not aware of a particular occasion when hunting had or was about to take place?
Mr. O'Brien: Again, that would be a matter for the jury and the courts to determine. If the landowner knows that hunting is to take placehe may not know the precise timeand implicitly consents to it, he is putting himself at risk of prosecution.
Mr. Garnier: This has been a useful, if short, debate on paragraph 6, and I am grateful to the Minister, to my hon. Friend the Member for Gainsborough and to the hon. Member for Montgomeryshire for their contributions. Several issues have been teased out, demonstrating the fact that all such Bills present similar difficulties. The Bill on foxhunting promoted by the hon. Member for Worcester threw up equally difficult problems, as have others during previous Parliaments. It is therefore incumbent on us to remember what happens when Bills that contain expressions or words that can lead to confusion reach the statute book.
The debate centred on the difference between being a principal to an offence and being a secondary offender under paragraph 6(2). Is the word ``connivance'' merely a smart way of saying ``aiding and abetting'', or another way of saying that the defendant was an accessory before or after the fact? The jargon in relation to all those concepts has changed over the years, but I am not sure whether the concept of connivance is used every day in the courtsmagistrates courts, that is, not criminal courts. The Minister slipped into error when he referred to a jury in his response to the hon. Member for Montgomeryshire.
My hon. Friend the Member for Gainsborough asked who would be guilty in a case involving the Brocklesby, which is a private hunt. In those circumstances, it might not be appropriate to prosecute under paragraph 6, which deals with a corporate defendant, but to prosecute an individual or a number of individuals. That is another example of how the Bill is a little ragged at the edges.
I shall not press the amendment to a vote, but I want to revisit the issue on Reportor for it to be revisited in another place. We lawyers do our best, if I may say so to the Minister, but nowadays, sadly, legal expertise is greater in the other place than it is in our House.
Mr. Banks: Get off your knees.
Mr. Garnier: I have often been tempted to say what I just said; I shall not say it again.
Mr. Gordon Prentice: The hon. and learned Gentleman is hugely talented.
Mr. Garnier: I am, and I want the hon. Gentleman to write to me to say so. He and I have had some interesting discussions while travelling alone to the far east[Interruption.] What I meant by that is that we were not travelling with the hon. Member for Lewisham, East (Ms Prentice).
The amendments require further debate, but I shall not prolong the Committee's deliberationsnor shall I divide it. The Minister may want to table Government amendments on Report to deal with the difficulties that we have highlighted in respect of the expression ``or connivance'' or to tighten up the definition of the word ``consent''. If that is not done in this House, the other place would be a sensible forum. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: No. 119, in page 20, line 19, at end insert
(a) it is conducted at the request of the landowner (within paragraph 22) in order to protect livestock, fish, fowl (including wild fowl), gamebirds, crops or grassland or trees, saplings or plants; or
(b) to manage the population of the quarry species in the interest of that species or other species of animals, birds or fish; and
(c) the person hunting the wild mammal reasonably believes that hunting is an appropriate means of achieving such protection or management having regard to all the circumstances (and including economic and conservation considerations) the welfare of the quarry species and other species of animals, bird or fish and the safety of other users of that or nearby land (including roads and other rights of way).''.[Mr. Lidington.]
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