Mr. Bercow rose
Mr. Edward Garnier (Harborough) rose
Mr. Leigh rose
Mr. O'Brien: If Members will bear with me, I shall happily give way later.
There is a requirement that there should be evidence of both actus reus and mens rea; the act and the intention. The offence would cover anyone who participated in a hunt and intended to do so. If there were evidence that they were engaged only in passive spectating, the courts would have to take that in account. If someone was merely a follower, and they were able to demonstrate that, they would not be guilty. However, when we pass criminal legislation we always expect people to exercise a degree of caution to ensure that they do not transgress the law. That is right and proper, and I do not think that anyone should object. Anyone seeking to foot-follow a hunt carried out on foot would be wise to ensure that it was clear that that was their objective.
Mr. Bercow: The fog is descending ever more heavily as the hon. Gentleman develops his argument in the characteristically lawyerly fashion with which we have become increasingly familiar. Can he clarify his remarks of a moment ago, which I found peculiarly alarming? He referred to someone who was foot following and could demonstrate that that was all that he or she was doing. With the greatest respect, I put it to the Minister, who is a distinguished lawyer, that it is not the responsibility of such a person to demonstrate his innocence; it is the responsibility of the prosecuting authorities to demonstrate his or her guilt.
Mr. O'Brien: It must always be the responsibility of the prosecuting authority to demonstrate both the act and the intention to carry out that act. However, I was referring to the context in which someone might want to exercise a degree of caution in ensuring that everyone was aware that he had no intention of breaching criminal law. It would be wise for anyone who puts himself in a position in which someone might misinterpret his intention by reason of what he is doing to tell someone--for example, the police-- that he has no intention of breaking the criminal law. He may want to exercise that element of caution, but the hon. Gentleman is correct in that it must always be the responsibility of the prosecuting authorities to prove beyond reasonable doubt both the intention and the act.
Mr. Leigh: That is an interesting point and we need some expertise from Committee members such as my hon. Friend the Member for Mid-Sussex. During a foxhunt, only the huntsmen and possibly other hunt officers, such as the whippers-in, actually hunt. The mounted followers do not hunt; they follow the hunt, but do not take any part in directing the hunt. The field master keeps them back. The Minister made a distinction between those who follow the hunt on foot or in cars and those who follow on horses. Those who follow on foot or in cars are not hunting a fox, nor are the people on horses. That is an interesting legal argument and should be clarified before we continue.
Mr. O'Brien: The hon. Gentleman makes an interesting technical and legal point, but at the end of the process, a court of law with a jury or a magistrates court would have to make a decision on whether the material facts of the case showed that an offence had been committed. It is as simple as that. Lawyers may, as we have seen, put forward spurious, frivolous and merely good technical legal arguments. That can be done with any law, but does not mean that we should not pass laws. We pass laws because we take a view that it is necessary. Parliament has taken the view that the Bill is necessary to stop a particular mischief. It is right to accept that issues may arise later and that we should test those issues in Committee. That is entirely proper, but it does not mean that the Bill should not be enacted.
Mr. Garnier: Would the Minister say that a ``passive spectator'' of an illegal hunt was guilty of connivance?
Mr. O'Brien: That would depend on the circumstances. If someone has no intention of hunting and is not actively participating in, conniving with, facilitating or encouraging it, he would have to show the court that he was not committing an offence if a charge were brought. I return to the point made by the hon. Member for Buckingham that it is always the responsibility of the prosecution, as the hon. and learned Member for Harborough knows, to show both the act and the intention. If that cannot be shown, no offence has been committed.
Mr. Bercow rose
Mr. Öpik: rose
Mr. O'Brien: I am desperate to move on to ratting. My hon. Friend the Member for Newcastle-under-Lyme is waiting for me to talk about rats.
Mr. Öpik: The followers of foot packs in Montgomeryshire, for example, may be half a mile or a mile behind the huntsmen and the dogs when the fox has been caught. It would be reasonable for them to have some indication from the Minister on whether they would be liable to criminal prosecution if they were a mile away as social spectators. It is not fair to require them to wait for the first test case in court. We are trying to make the legislation work.
Mr. O'Brien: Someone who is part of a group of people that is setting dogs on mammals within the terms of the Bill, doing so intentionally and participating in that act will be in danger of prosecution for the offence. If someone is merely spectating, not participating in the act, not facilitating dogs or other people to hunt and taking no part, it is difficult to see how he could be prosecuted. The hon. Gentleman suggested that the animal could be killed out of sight of those who are following. If they have set a dog on the mammal, it matters not whether they can see the dog kill it because the intention to hunt would be clear and the act would have been committed by setting the dog on the mammal. It is not the eventual outcome that is the offence, but the process that is undertaken.
Mr. Bercow: I am becoming ever more worried about the Minister as the argument progresses. Will he help us by finally and precisely distinguishing between spectating and participating, because it is a grey area? Does he accept by analogy that someone at a football stadium who expresses support, makes observations and queries the judgment of linesmenperhaps volublyis, nevertheless, only spectating and not participating in the sport? Does he also accept that someone standing, walking, observing and perhaps expressing enthusiasm for a hunt, is only spectating, not participating, and, therefore, is not required to prove anything?
Mr. O'Brien: It will be for a court to determine on the facts whether a particular person in particular circumstances has committed the offence. That is always so under any law. The hon. Gentleman's example is bad for his case. A spectator at a football match is only a spectator. There is a barrier in front of him and a clear distinction between those who are participating in the game and the spectators. I am sure that he can think of a better example.
There is an issue concerning those who are merely foot followers and not participating in a hunt. I have made it clear that, in my view, those who are passive, take no active part in the hunt and do not intend to hunt or to facilitate hunting are not committing an offence. However, those who participate may put themselves at risk of prosecution.
Mr. Alan Simpson (Nottingham, South): Will my hon. Friend confirm that some explanation will be required of why someone is following an event that is illegal and, therefore, should not be taking place? The football analogy is spurious; it would be necessary to question the conduct of spectators of a game that was not taking place, in which case those spectators should perhaps be referred under mental health legislation. Should we not be saying that an observer of an unlawful act might be asked to explain why he is observing an unlawful act?
Mr. O'Brien: My hon. Friend is right in saying that someone may have to give an explanation, but that would not necessarily mean that he had committed a criminal offence and particularly not under the schedule. The purpose of the schedule is clear: to catch those who would commit an offence if they hunted a wild mammal with a dog. If they are not hunting a wild mammal with a dog or facilitating that, they will not be caught by the schedule unless it otherwise prescribes. That is the position set out in the schedule and that is what Parliament has endorsed.
My hon. Friend the Member for Newcastle-under-Lyme asked about the specific example in her constituency when someone takes their dog to catch rats in a ditch at the end of a road.
Mrs. Golding: A brook.
Mr. O'Brien: A brook; she asks whether there is a requirement to seek permission. Let me set out how I read the schedule. Paragraph 8(3)(b) says:
My hon. Friend asked whether I would expect anyone convicted of ratting with a dog to be fined £5,000. I should be greatly surprised if they were. However, that is the maximum penalty. Let me posit the sort of circumstance involving ratting in which a person might be fined the maximum.
Suppose somebody goes ratting on my land; I am sure that it would not be my hon. Friend on this occasion. I do not give permission, but they still do it. They do it again; they are convicted. They do it again; they are convicted. They do it again; they are convicted. That shows a persistency and contempt for the law that could well merit the maximum fine. However, if someone were merely ratting in the circumstances that my hon. Friend described, I should be very surprised if they were fined at the severe level prescribed in the Bill, especially if it were a first offence.
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