| Hunting Bill
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Rob Marris (Wolverhampton, South-West): I urge hon. Members to reject the amendment and stick with the wording of the Bill. The mens rea of the offence would change from basic to specific intent, which is a much higher hurdle. In lay terms, ''knowingly'' means that the individual turns a blind eye, whereas ''expressly'' would require active collaboration and participation. The question asked by Opposition Members about the tenant farmer and the owner or landlord's agent is a red herring, because a tenant would not knowingly permit an activity to take place, whereas a landlord or their agent may do so. Mr. Hugo Swire (East Devon): I should like the hon. Gentleman to reverse a bit and repeat that because it is one of the most ridiculous things that I have ever heard. What on earth has what the tenant does on a day-to-day basis got to do with the ultimate landlord, who may not even live in the country? Rob Marris: I am not sure that the hon. Gentleman is listening to his hon. Friends. The example given was that of a tenant who was under pressure from a landlord's agent to allow an illegal activity—unregistered hunting—to take place on the land. I was saying that the tenant would have a defence and would not be the person permitting the activity to take place. Mr. Swire: That is not what the hon. Gentleman said. Column Number: 915 Rob Marris: If I did not say that, I apologise to hon. Members. I will check the record later. Is that now clear to the hon. Gentleman? Mr. Swire indicated assent.
Lembit Öpik: It is important that there is clarification. The Minister may have to respond to this. How does the hon. Member for Wolverhampton, South-West interpret clause 45(3)? It states:
Surely under that clause, which the Minister cited, there is ample opportunity for a court to have a field day about the relationship between the tenant and the owner of the land. Rob Marris: I like the hon. Gentleman's turn of phrase and the idea of the court having a field day. I agree. Members have to realise that very often land in the United Kingdom is not solely under the control or ownership of one person. For example, I have a right of way over land that does not belong to me; I have the right of passage over that land. Land has a multi-layered ownership, occupation, control and usage in our country. That situation is true of a tenant farmer and the ultimate owner of the land; both have an interest in the land. The hon. Member for Montgomeryshire talked about the horrors of individuals being liable for sins of omission. There are many cases in the law of England and Wales where individuals are liable for sins of omission; for example, the failure to report a road traffic accident involving injury. If a bar worker serves someone who is under-age, the pub landlord, who holds the licence, is responsible. That is an offence of strict liability. The pub landlord might not even be on the premises; it might be his or her night off. However, they are still strictly liable for that failure. I stand ready to be corrected, but my recollection is that an owner or occupier of land cannot simply allow people to dump chemicals on it. They cannot say, ''Oh, I didn't expressly give permission for the dumping of chemicals.'' They cannot simply turn a blind eye to the dumping of chemicals; that is a sin of omission for which they will be criminally liable. Lembit Öpik: Does the hon. Gentleman accept that, in the first two examples, it is not realistic to suppose that the person in question would be intimidated? For example, a member of staff would not intimidate a pub landlord into allowing him or her to serve under-age people. Establishing whether chemical dumping had taken place would be an open-and-shut case. In the case of hunting, the difficulty is that there may be active intimidation of a person, who may end up being prosecuted because they are simply unable to prove that the duress and fear of reprisals against their family were so great that they decided to let it go. Rob Marris: I quote the hon. Gentleman's word back at him; duress. My recollection—again I stand ready to be corrected—is that in most criminal offences, apart from murder, the defence of duress is available. In the example that the hon. Gentleman Column Number: 916 gave, the tenant or owner of the land could use the defence of duress and would almost certainly succeed.Alun Michael: On other occasions, we have heard a great deal about how the permission of landowners or occupiers is important and the clause reinforces that. On intimidation, it is possible to overstate the theoretical examples that might arise. Within the legal system, I have seen examples of intimidation being dealt with extremely sensitively by the police and the courts. Common-sense judgments have been made about whether an individual was acting as a free agent and the degree to which intimidation changed the equation. I encourage hon. Members not to overstate the danger to an individual. The clause says:
As we clarified earlier, the belonging is also defined in terms of tenancy, so there is no doubt about what is being dealt with. The clause adds:
The hon. and learned Member for Harborough (Mr. Garnier) was guilty in his most recent contribution of serious exaggeration when he said how onerous the clause was. I do not believe that it is. The word ''expressly'' would allow landowners to turn a blind eye to any activities and implicitly to consent to unlawful hunting, which would create a loophole in the Bill.
9.30 amClause 4 contains two clear safeguards—two hurdles that must be surmounted if a prosecution is to be successful. First, the landowner must permit the hunting. Secondly, he must know that the hunting would be unlawful. Clearly, individuals remain under a duty to obey the law. The fact that it will become an offence knowingly to permit land to be used for unlawful hunting will in many cases strengthen the landowner's reasons and his ability to refuse to assist in the commission of a crime. Therefore, the clause gets the balance right, is not onerous and creates good law that will encourage the Bill to be obeyed. Mr. Gray: I fear that this matter may sound technical and dull to the more red-blooded members of the Committee, but it seems extraordinarily important to us. As the Minister correctly said, the word ''permission'' has often been used in our discussions in the past few weeks. We stick by that and point out that someone ''knowingly permits land'' is different from someone ''expressly'' permitting land. We want the express permission of a landowner to be an obvious offence. If a landowner said, ''I know that you are breaking the law, I know that you are going to commit an offence and I expressly give you permission to do so. That's quite all right be me'', that would be unacceptable in any area of the law and unacceptable to society. Column Number: 917 The definition of the word ''knowingly'' seems to be curiously obscure, particularly when the offence may be as complicated as it is here. For example, if a bird shoot accidentally puts up a hare on a landowner's land and it is shot, the person who shoots the hare will have committed an offence and so will the landowner who allowed the shoot on his land. The same applies in a variety of similar circumstances. Let us suppose that a mammal was inadvertently hunted with dogs in the wrong area, that the area was one field, which is possible, or that the hare or fox was killed in the next-door field by mistake. Would that be knowingly? It would open a Pandora's box of legal cases. The word ''expressly'' would make it much clearer that the landowner had intentionally and expressly permitted the offence to occur. Intimidation would form a defence. None the less, particularly in the context of illegal hare coursing, that happens all the time. Now that the Bill gives illegal hare coursers the incentive to carry guns, the situation becomes even worse and we should be concerned about it. Alun Michael: Will the hon. Gentleman clarify one point, because I may have misunderstood him? He seemed to be saying that something would follow if somebody shot a hare by accident. That would not be hunting, so in that event nobody is committing an offence—neither the shooter nor the landowner. [Interruption.] I answered the question on the basis of my understanding of what the hon. Gentleman said. Mr. Gray: My argument related to schedule 1, ''Exempt Hunting''. As we discovered last week, if ground game was put up by more than two dogs during an ordinary pheasant shoot and was shot during the day's activities, that would be an offence under the Bill because it would not be exempt hunting. The dogs taking part in the shoot would need to be registered before they could put up ground game. Alun Michael: Can the hon. Gentleman explain what offence he thinks is being committed in those circumstances, because I do not see it? Mr. Gray: That was precisely what I was doing. Let me take the Minister back for a moment. He will remember that under the Bill there are two options: either one hunts through exempt hunting—rats, rabbits and a number of other categories—or one is required to register. That is the fundamental principle behind the Bill. As we discovered last week, if on an ordinary day's game shooting for birds, the dogs accidentally put up a hare, which is then shot by the guns, as would normally happen in a day's shooting, and the dogs were not registered for the purpose of flushing hares or ground game out, that would be an offence because it would not be exempt hunting. [Interruption.] The Minister keeps jumping up and down and asking questions. Perhaps he will allow me to answer the question. As we discovered last week, if dogs were used to flush out ground game to a waiting gun, which is what would happen in the circumstances that I described, and they were not registered for hunting, it would not Column Number: 918 be exempt hunting, and the guns would be guilty of an offence under the Bill. Does the Minister want to clarify something?
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| ©Parliamentary copyright 2003 | Prepared 11 February 2003 |
