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Column Number: 1181
Standing Committee F
Thursday 27 February 2003
(Morning)
[Mr George Stevenson in the Chair]
Clause 45
Interpretation
8.55 am
Mr. James Gray (North Wiltshire): I beg to move amendment No. 361, in
clause 45, page 18, leave out line 16.
During an exchange with the Minister before the Committee, I was trying to think of an analogy for this situation. Should I say, ''Once more into the breach, dear friends'', or comment that we are coming to the end of the hunting day but there is still plenty of life left in the hounds and we will kill a few foxes before the end of it? I cannot really think of a good analogy, however.
I am glad that I shall not have to be here on Tuesdays and Thursdays at five to nine from now on, although quite what I shall do with my time—[Hon. Members: ''Hunt.''] That is a good idea. I shall fix up as many hunting appointments as I can before this mob on the Labour Benches prevents me from doing so. I am quite looking forward to being relieved of all this, I must say.
Under clause 45(3), any person who owns an interest in, manages, controls or occupies land may be taken to be a person to whom the land belongs and thus potentially a criminal under clause 4. Frequently there are many so-called interests in land. As a technical term in law, that includes a right of way across property. It is ridiculous to criminalise parties with interests in land, such as those with a right of way, who have no control over the premises. Therefore, it is important to amend clause 45(3).
Any liability should be restricted to the occupiers, whom case law has defined as those who have sufficient control of the premises to make them liable. The definition of someone to whom land belongs is so widely drawn here as to capture those with only a nominal, indirect or transient interest and involvement in the land, which is clearly unfair. A person with a minority interest in the land in question might strongly object to its use for hunting but be unable to prevent it. The Minister has told us that that has often been the case with illegal hare coursing. People do not want land to be used for that, but have often had no option but to allow the thugs and criminals to carry on doing it. It is unfair that even though such people are, technically speaking, the landowners, they should become criminally liable for something that other people are doing.
An owner of land might be neither its occupier nor its controller in practice. He might own the freehold, but the land might be tenanted or leased to a third party. The owner might be hundreds of miles away
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when the offence is committed or alleged to have been committed. To prosecute that individual would be absurd, because they might know nothing abut the activity.
The real problem stems from the criminal offences created in clause 4, which, in effect, make the landowner responsible for policing the enforcement of the legislation. When prosecuted, they will have to prove that they have not knowingly permitted land belonging to them to be used for hunting. That reverses the burden of proof. It should be for the prosecution to prove that knowing permission was given, not vice versa. In any case, it is not at all clear what one has to know, in order to commit the offences. Will a dog owner who knowingly permits his dog to be used for flushing out be caught if an offence is inadvertently committed? Will a landowner who thinks that people are using his land for lawful activities be guilty if an offence is then committed? If the landowner thinks that those people are perfectly legitimate but they inadvertently commit a crime, is he guilty? For example, a game shoot might inadvertently put up a hare, which is then shot by the guns. The landowner who allowed his land to be used would not have wanted any crime to be committed, but unless the dogs used were registered, the flushing of the game to the guns would be an inadvertent crime, committed not only by the person who shot the hare but by the landowner who allowed the shoot to occur on his land.
Gregory Barker (Bexhill and Battle): I am loth to interrupt, but I should like to expand on the point about dogs. If several dog owners participate in a shoot, but each believes that their dog is one of two being used for flushing out, there could be three dogs being used for that purpose. The third dog would be unknown to the other two owners, but all three would be committing a criminal offence.
Mr. Gray: That is, of course, the case. It is not directly pertinent to the amendment, but there is a link. It could be that even if the landowner on whose land such an offence occurred did not know that that was happening, he would be guilty because he allowed his land to be used for it. We come back, indirectly, to the question of intent. Did the landowner intend to allow the hunt, or the criminal, to carry out the offence on his land? Plainly, if he did, that might be an offence, but there might be many circumstances in which it could be proved that the landowner did not know that the offence was being committed and did not want it to happen.
Our amendment, which leaves out line 16, would make the matter much clearer. The Bill would read:
''For the purposes of this Act land belongs to a person''
if he
''manages or controls it''
or
That is straightforward. The amendment would delete the words
''owns an interest in it''.
The person who owns an interest in the land may well have nothing whatever to do with the crime committed
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on it. We hope that the Government will see the logic in the amendment and agree to it.
The Minister for Rural Affairs and Urban Quality of Life (Alun Michael): The hon. Gentleman rightly says that the amendment would narrow the definition by removing the point about the person who ''owns an interest'' in the land. Narrowing the scope of the definition of when land belongs to a person would weaken the Bill. Let us take the example of clause 4 and the offence of knowingly permitting land to be used for hunting. If a person who owns an interest in that land commits that offence, why should they not be found guilty?
Perhaps the reason why the hon. Gentleman fears some unfairness is based on a misunderstanding. The points that he made in his introduction sounded reasonable and sensible. It is recognised that the land ownership and management and control of land are not always straightforward. For example, there is land owned by colleges or land involving shared and multiple ownership. Since I took up office, I have been dealing with a number of issues relating to common land and that has certainly brought home to me the complexities of land ownership.
The important point is that, for an offence to be committed by an individual, it is necessary for him or her knowingly to have given permission for hunting to take place. That is crucial to an offence being committed and therefore a conviction being obtained. That provides the necessary protection against any danger of unfairness, which is clearly at the heart of the comments made by the hon. Gentleman when introducing the amendment.
The trouble with deleting the mention of individuals who own ''an interest in'' the land is that that interest might well result them in acting in such a way that an offence is committed. They would be the responsible individuals. Surely it would be wrong to delete the provision relating to such people. As I indicated, for an offence to be committed, it is necessary for an individual knowingly to have given permission for hunting to take place, which provides the necessary protection.
Mr. Gray: The fact that, under clause 4, that has to be done knowingly is some safeguard. None the less, clause 4 reads:
''A person commits an offence if he knowingly permits land which belongs to him to be entered or used in the course of the commission of an offence''.
Note that it does not state, ''for the purpose of committing the offence.'' That is quite plain. In other words, the landowner may not know what people intend to do, but in the course of doing the thing that is wrong, the landowner may well be guilty.
Alun Michael: I think I understand what the hon. Gentleman is saying. In other words, if a landowner were to allow somebody on to their land and thought that they were just going to park a car, without knowing that an offence was going to be committed, would that landowner then be caught? No, he would not. I understand the hon. Gentleman's fear now that
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he has explained it. The landowner would not be guilty of an offence in that event because he must have knowingly given permission for hunting to take place in order to have committed an offence.
Andrew George (St. Ives): I was not going to make a speech, although the matter is important. I share the hon. Gentleman's concern about the clause, but it might be better if the definition were wider. Taking the example of common land, does the Minister accept that there could be a problem if those who own an interest in the common land and give permission do not consult others who own an interest in the land? In such cases, all with an interest in the common land would be caught in the curtilage of committing an offence, although they did not knowingly give permission.
Alun Michael: I understand the hon. Gentleman's point, but the reverse is true. If there are a number of owners of a piece of land, and one of them were to give permission for people to come on to the land knowingly for hunting to take place, that individual would be guilty of the offence and the others would not. The others would have to knowingly share in that giving of permission, in order to share in the commission of the offence.
Andrew George: That answer is helpful but, as written in the Bill, all of those who own an interest in the land would be caught in the curtilage of the offence. There is no other provision referring only to those who own an interest in the land and give permission. It would be helpful if the Minister said whether he believes that further clarification is required in the Bill.
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