Mr. Öpik: No system for licensing is included in schedule 3. I agree with much of what the Parliamentary Secretary has said, which is why the Middle Way Group thought that there should be a licensing system. Is the Parliamentary Secretary now saying that she accepts that a licensing system would be enforceable and a reasonable way forward? If so, would she be willing to consider modifying the schedule on Report?
Jane Kennedy: I meant the term ``licensing'' in the loosest sense of the word. In all the legislation that I have cited where the obligation is placed on the person suspected of having acted illegally to prove or show that they have not done so, the test that they must satisfy is, as hon. Gentlemen know, the civil test of balance of probability. They do not have to meet the criminal test of proof beyond reasonable doubt. That was firmly established in R v. Hunt, as reported at
Mr. Maples: ``Archbold''?
Jane Kennedy: I am in awe of how well read the hon. Gentleman is. He clearly sleeps with ``Archbold'' under his pillow.
The Bill is exactly the same in such a respect. The standard that the accused must meet is the balance of probability.
Mr. Maples: When I first read the proposal, I thought that it dealt with the point, but the more I think about it, the more I realise that it does not. If the prosecution succeeds in proving that a person was out with their dog and it killed a rabbit, it is then seeking to prove the exception. If the prosecution cannot prove that, it is 50:50 whether the jury or the magistrate believes it. The person would, in effect, be convicted on the basis of proof on the balance of probabilities and not beyond a reasonable doubt. That is why the principle arises; reversing the burden of proof reduces the burden of proof of all the components of the offence. Some of them have to be proved beyond a reasonable doubt, but many othersthose surrounding the exceptionhave only to be proved on a balance of probabilities. Therefore, people could be convicted on a 51:49 split as opposed to the overwhelming preponderance needed where an offence must be proved beyond reasonable doubt.
Jane Kennedy: If a person were charged with the offence under the Bill and did not have one of the defences outlined in it, they would not be able to argue that defence and the court would have to make up its mind on the evidence before it.
If the amendments were accepted, a person accused of hunting could simply suggest, without adducing any evidence, that one or all of the defences applied and then leave it to the prosecution to disprove beyond reasonable doubt each and every defence suggested. That is a novel idea, and I am not aware of any similar example on the statute book.
Mr. Beith: How would the Parliamentary Secretary prove that her dog was seeking an injured animal at the time? When she gets to the magistrates courtindeed, after apprehensionthe animal may have disappeared and gone to earth. How does she prove that her dog was seeking an injured animal?
Jane Kennedy: My hon. Friend the Member for West Lancashire (Mr. Pickthall) says from a sedentary position that one would be able to argue the case. For example, one would have reasonable grounds for believing that the injured animal was there. One would be able to show what animal the dog was chasing and one could make an argument, but it would be for the court to decide on the merits of each case.
The hon. Member for Gainsboroughand, to an extent, the hon. Member for Stratford-on-Avonprayed in aid the European convention. It has been suggested in some quarters that, because of the so-called reversal of the burden of proof in it, the Bill is not compatible with the European convention. I reject that view absolutely. My right hon. Friend the Home Secretary has signed a statement that, in his view, the Bill is compatible with the ECHR. Clearly he would not have signed such a statement if he took a contrary view. It will come as no surprise to the Committee that I share his view. Under the terms of the Human Rights Act 1998 our courts are required to interpret all legislation in accordance with the ECHR. There appear to be no problems with the myriad pieces of legislation that contain the reversal of the burden of proof, and I see no reason why the Bill should present any difficulties if it becomes an Act.
Given the nature of the activity with which the Bill deals, the formulation of the offence and its defences seem entirely appropriate. As I hope I have been able to demonstrate to members of the Committee, it is not an unusual formulation. It appears throughout our legislation; particularly in animal-related Acts. Therefore, it would not be right to accept the amendments in the names of the hon. Members for Gainsborough and for Aylesbury. Accordingly I invite the hon. Member for Aylesbury to seek to withdraw the amendment.
Mr. Leigh: I am disappointed by the Minister's answer, particularly as she seemed to be reading something that had clearly been written in advance of my remarks this morning. Many of us have been Ministers and I know that Ministers have to rely on advice.
The purport of the Minister's speech was that there are precedents for reversing the burden of proof, but as I pointed out several times, I am aware of that. As my hon. Friend the Member for Stratford-on-Avon argued extremely well, the burden of proof has been reversed in cases where the prosecution has proved, for example, that a murder has been committed, that an explosion has occurred, that unlawful sex has taken place and even that a badger has been killed. In turn, the defence has argued that the incident in question was an accident or an honest mistake, that there was provocation, duress, consent on the part of the alleged victim, lack of intent or lack of specific intent due to drink.
Had the Minister been listening, she would know that we accept that, over the years, Parliament and the courts in their wisdom have concluded that if the prosecution proves the core element, the defence must establish proof in arguing that, say, a rape victim in fact gave consent, or that murder was in fact manslaughter because there was no intent.
The case before us is entirely different. The core offence, to which there are exceptions, is not in fact an offence at all. For matters such as stalking, rodent control and retrieving an animal, there should be a different and novel procedure. The Parliamentary Secretary failed to address the point that such activities are on the bottom rung of criminal behaviour. Even deliberate hunting is surely low on the list of criminal activities. Moreover, such activities are welcomed by society. No one welcomes murder, rape, burglary, and the running over of pedestrians, so society takes the view that the exceptions must be proved in such cases. However, society requires landowners to engage in activities such as rodent control.
The Parliamentary Secretary has failed to answer our questions, so in the time available to us we must press the amendment to a vote.
Question put, That the amendment be made:
The Committee divided: Ayes 7, Noes 18.
Division No. 8]
Mr. John Bercow (Buckingham): I beg to move amendment No. 52, in page 20, line 22, leave out `fox, hare or rabbit' and insert `wild mammal'.
The Chairman: With this it will be convenient to discuss the following amendments: No. 122, in page 20, line 22, leave out `or rabbit' and insert
No. 53, in page 20, line 27, leave out `fox, hare or rabbit' and insert `wild mammal'.
No. 63, in page 20, line 42, leave out `fox, hare or rabbit' and insert `wild mammal'.
No. 88, in page 21, line 23, leave out `rabbit or hare' and insert `wild mammal'.
No. 91, in page 21, line 28, leave out `an animal' and insert `a wild mammal'.
No. 92, in page 21, line 36, leave out `animal' and insert `wild mammal'.
No. 93, in page 21, line 40, leave out `animal' and insert `wild mammal'.
No. 95, in page 21, line 46, leave out `an animal' and insert `a wild mammal'.
No. 101, in page 22, line 5, leave out `animal's' and insert `wild mammal's'.
No. 102, in page 22, line 8, leave out `animal' and insert `wild mammal'.
Mr. Bercow: I am particularly grateful to have such a long time in which to develop my argument before the conclusion of this morning's business[Laughter.]
The purpose of the amendments is to change the exceptions to the general offence for which the Bill provides to cover any wild mammal, with the exception of the defence of hunting rodents. As you, Mrs. Roe, and the Committee alike will be aware, as it stands, the Bill will apply the exceptions only to the stalking or flushing out of foxes, hares and rabbits.
The Chairman: Order.
Mr. Bercow: I have never been briefer.
It being twenty-five minutes past Eleven, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Roe, Mrs. Marion (Chairman)
Foster, Mr. Michael J.
Hall, Mr. Mike
Henderson, Mr. Ivan
Prentice, Ms Bridget
Prentice, Mr. Gordon
Simpson, Mr. Alan
Simpson, Mr. Keith
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