HC Deb 05 April 1951 vol 486 cc476-89
Mr. William Ross (Kilmarnock)

I beg to move, in page 3, line 22, to leave out subsection (3).

Without the Amendment it would be lawful to convict a person charged under this section on the evidence of one witness. That means that anyone found in possession of any salmon or trout or instrument or explosive, either before or after the commission of any offence under Clauses 1 to 4 of the Bill, could be brought before the sheriff and be charged, and sentenced if convicted, as if he had committed the actual offence.

This is a new offence altogether, this illegal possession of salmon or trout or of an instrument that may be used in the commission of such an offence, and I think it is a regrettable feature that we should have this subsection (3) whereby what is, to my mind, a very dangerous principle in the law of evidence is being applied. I do not think it is a desirable principle that the conditions of proof or laws of evidence should be adjusted to meet geographical circumstances.

I think the main argument for the insistence upon this subsection is that these crimes are usually committed in lonely glens and sparsely populated areas, and that the people seeking to protect the fisheries cannot always go about in pairs and thus get corroborative evidence. I think it is a dangerous principle to say that if a crime is committed in a populous area we should have one standard of proof, and that if it is committed in a sparsely populated area we should have an entirely different standard of proof.

After all, the penalties resulting from a conviction under Clause 7 are a fine of £500 and imprisonment up to two years, and I think we should not lightly subject the people of Scotland to law of a kind under which they can be so easily deprived of their liberty by the evidence of one witness without a single shred of corroborative evidence. It may not be a new principle, but still it is extending what I think is a dangerous principle, and I do not think it is desirable to extend it. After all, what other crimes are there committed in the same places, carrying such heavy penalties, conviction for which could be obtained on the same slender evidence?

While the purpose of the subsection is to make the law more effective and to make it easier to get convictions which, with the new penalties, will be a considerable deterrent, it also makes it easier to convict the innocent. The conditions which necessitate the introduction of this idea to convict on the evidence of one witness alone in the lonely glens and sparsely populated areas make it very difficult for the person wrongly accused to prove his innocence. I think that we should be very careful indeed about working on this principle. I think that the chances of a miscarriage of justice are considerably increased by relying upon this subsection. I know that in these circumstances it is difficult to do so, but we must strike a balance between getting convictions and getting errant justice.

My misgiving on this subsection is increased by two further points. Throughout this Bill we have strengthened the hands of those whose task it is to protect the fisheries and bring to book the criminals. We have, for instance, in Clause 10 given increased powers of search, examination and seizure, as well as the power to detain to water bailiffs and other appointed officers. In Clause 11, we have given wide powers to them, with or without a search warrant, to search in their own district and in other districts, and we give the constables the right to search, without warrant at all, near or far from the scene of the commission of a salmon crime.

We have deliberately—and I think rightly—made it possible to get evidence, but that evidence should be corroborated. Why should we insist on putting in this subsection which does away with the need for corroborative evidence? I should like to ask the Lord Advocate if it is necessary to depend upon this dangerous departure from the accepted tradition of Scottish justice. The accepted idea of Scottish justice is that a man should not be sent to prison for two years on the word of one witness. After all—I know that it may be a small point—the other Salmon and Freshwater Fisheries Acts, state that there shall be one credible witness, or witnesses; but here we do away with the word "credible."

I do not like this dangerous departure from the accepted idea in order mainly to get convictions. Under this subsection, the idea of the easy conviction principle is applied not only to the commercial salmon racketeers against whom the Bill is directed—the purpose of setting up the Committee to inquire into this matter was to get at this new racketeering in salmon, and we are legislating against them in Clauses 3 and 4—but it also applies in regard to Clauses 1, 2, 3 and 4, which means that it is being used against the errant angler and the traditional poacher as well.

However much it may be argued that it should be used to deal with the salmon "spiv" and "racketeer," I do not think that it is right that this Clause and this easy way of getting convictions should be applied to those who may be convicted under Clauses 1 and 2. The idea is that it would be easier to prosecute under this Clause the traditional poacher and the rod and line man as well. We may, however, get the position—and this is a very real fear in some country districts—whereby this Clause and this subsection can be used vindictively to lower Scottish justice to the standard of conviction by denunciation. It could be a legal weapon of oppression. These things have happened before, and while the danger is there, I think that this is lowering the standard of Scottish justice. I know that the Lord Advocate will deprecate that statement as showing little confidence in the sheriffs of Scotland.

Mr. McKie (Galloway)

I hope that he will.

Mr. Ross

I hope so, too, but what I have said is not intended to be a slight on the sheriffs. Not long ago in this City of London an experienced magistrate sentenced someone to three months' imprisonment. It was a case. I think, of a stolen wallet. The wallet turned up the next day and the conviction had to be wiped out. That shows that even experienced people can be misled by the evidence. The evidence of one man who is a fallible mortal is more likely to be fallible in these circumstances than if it were the evidence of one witness plus corroborative evidence. I think that if we limit this convicting evidence, we are placing the sheriffs in a position in which they are more liable to make mistakes.

I should like to ask the Lord Advocate whether this Clause can be used as a means of legal oppression of the traditional and more inoffensive poacher. Where I dislike this Clause and dislike the Bill is where it departs from the original purpose of getting at, and continuing to get at, the commercial "racketeer," and where it may be used to harry and hound the small offender. I should like the Lord Advocate to give me an assurance that this Clause will be strictly limited to those cases where otherwise the mobile gangster might be able to laugh at the law. I do not desire to make the law vindictive in every case, and I hope that it will not be used to harry and hound the ordinary poacher. Our purpose in moving this Amendment is not to make the law ineffective but to make the law effective against those who have rendered this Bill necessary.

Mr. Carmichael (Glasgow, Bridgeton)

I beg to second the Amendment.

I think that the case has been fairly well stated by my hon. Friend the Member for Kilmarnock (Mr. Ross), and therefore only a few words need to be added. We are very disturbed at the introduction of this Clause in the Bill. This is a departure. I am quite satisfied that the Lord Advocate has not introduced it because he wants to be vindictive against the ordinary angler, but that the only purpose he has in mind is to catch the gangster. That was the argument he submitted on the last occasion. It was stated then, and it should be repeated again, that the law of Scotland does not countenance the evidence of one witness. It was Lord Mackintosh who stated in the High Court of Glasgow: It is a fairly fixed principle in the law of Scotland that the essential details of a charge cannot be proved by the statement of one witness alone. There must be corroborative evidence. If we introduce this provision into this Measure we shall be establishing a principle. If we establish the principle of conviction on the evidence of one witness in regard to people being in possession of salmon or instruments associated with the catching of salmon, it will be possible to introduce the same principle in any further legislation. We are very anxious about the insistence on this aspect of the Bill, and I hope that the Lord Advocate will give some assurance that, while the Government are framing the Bill for the purpose of catching these organised gangsters, the ordinary angler will get all possible protection and will not be open to vindictiveness which obviously exists in many parts of the country.

The House knows it is a fact in Scottish history that there is a certain amount of enmity between the landlord and the ordinary angler who does a bit of fishing. I do not use the word "poaching" because I want to be perfectly fair in connection with the Bill. I hope that we shall have some indication from the Lord Advocate to show that at least it is quite impossible to make the Bill work without this provision.

8.30 p.m.

The Lord Advocate (Mr. John Wheatley)

When this issue was being considered during the Committee stage the debate lasted one and a half hours. The various arguments were fairly fully canvassed, and I gave an undertaking that I would look at the matter again before the Report stage because of the very strong and quite understandable feelings certain Members had in respect of this issue. There still seem to be a certain amount of misapprehension in relation to this principle.

No one denies that generally speaking in the law of Scotland corroboration is required to secure a conviction. But that is not a rule without exception. Accordingly, it is not right to say that this is a departure, or to use the expression that we are establishing a principle. We are doing neither of these two things, because although the common law is that corroboration is required, we have found from time to time the legislature saying in statutes that owing to the particular circumstances of the particular case the evidence of one witness will be sufficient to secure a conviction. There must be a further qualification to that.

My hon. Friend the Member for Kilmarnock (Mr. Ross) said that in previous statutes the word "credible" was used. In previous statutes the wording was: "the evidence of one credible witness or witnesses" whereas in this Bill no reference to the word "credible" is made. It does not matter whether the word is inserted or not, because no court would be entitled to rely on the evidence of any witness or witnesses unless it was satisfied that the witness or witnesses was or were credible. There is no significance about the absence of the word "credible."

I want to stress the point that, merely because the court is enabled to convict on one witness it does not mean it will be satisfied with the evidence of one witness. It merely means that the court can be satisfied on the evidence of one witness.

My hon. Friend suggested that it will be difficult for the innocent person to prove his innocence, but whether we have one witness or two witnesses, or a multitude of witnesses, there is still no onus on the accused person to prove his innocence. The onus remains throughout on the Crown to establish guilt. Therefore, it is a wrong approach to suggest that an accused person will have to prove his innocence.

Mr. Ross

It is going to be comparatively easy to prove guilt if only the evidence of one person is needed.

The Lord Advocate

It is not going to be easy unless we are proceeding on the evidence of a reliable witness and one accepted by the court.

I gave this matter very careful consideration, and in order to see the justification for it we have to remember the background. The Maconochie Report strangely enough did not make any recommendation that such an offence should be constituted. In the law of Scotland at the present time there is no offence of this nature for salmon or trout. What did transpire at that Maconochie Committee was that the police gave evidence to the effect that while they frequently knew, without having the requisite evidence, that offences were being committed, they were only able to get the delinquents some distance removed from the scene of the offence, and obviously not only in possession of the fish but of the implements of their illegal depredations. Under the existing law that did not entitle us to prosecute, which was a grave omission. Although the Maconochie Committee did not recommend the constitution of this offence, it seemed to us, when framing this Bill, that without a provision such as this many of the other provisions of this Bill would be rendered nugatory, and so we introduce it.

What is the main difficulty we are seeking to meet? It is that these offences take place in remote areas where there can be great difficulty indeed to have people patrolling in pairs. It is easier sometimes to get more than one person where the actual offence is taking place, but once the offenders get away from the scene and scatter all over the country it is difficult to get a patrol operating in pairs. So we felt that if we wanted to catch organised gangsters we had to have the power vested in a single person to produce evidence which, if accepted, would entitle a conviction to be recorded.

In doing so we realise that we were departing from the general rule, though there are precedents for this particular type of offence because in the analogous offence, to which reference was made on Second Reading and during the Committee, that of being in illegal possession of game, exactly the same type of principle applies, namely, that the evidence of one witness if believed justifies a conviction. That dates back to the Poaching Prevention Act, 1862.

In these circumstances it is difficult to say that despite the reasons which obviously made it necessary in 1862 we should not have it in this particular Bill. Even before the fishing season opened on 15th February this year, reports were coming in of gangs already operating in various parts of Scotland. These operations take place in the widespread, remoter parts of Scotland where it would be difficult to get two people available when stopping a motor car or when stopping a person. It is true that the law must apply equally to the gangs and to individuals. One could not have a provision, such as seemed to be suggested by my hon. Friends, that the Clause will apply only to the salmon spivs and racketeers. It would be rather a novel form of legislation if it had an application of that nature. Once it is the law, it is applicable to any case which falls within the Clause.

To suggest that this Clause is lowering the standard of proof to the extent of resulting in conviction by denunciation is overstating the case so completely as to rob the argument, so ably adduced, of a great deal of its effect. While there may be an argument that we should or should not have corroboration, to suggest that by relying upon one witness we are getting to the standard of conviction by denunciation is rather absurd, because at the end of the day the sheriff has to be satisfied with the evidence of one witness. We may take the case of England, where it is much more common to be able to get a conviction on the evidence of one witness. We may say that our general system is superior to that of England and raise a great deal of controversy, but whatever the merits of that argument may be no one would suggest that because in the law of England in the general case the evidence of one witness will suffice, the English get their convictions by denunciation.

My hon. Friend the Member for Kilmarnock said that cases had been established where mistakes had been made and that if we had one witness mistakes would be easier, but mistakes can be made either on the evidence of one witness or of several witnesses, as has sometimes been the case in the past. I need only mention the names of Oscar Slater and Adolph Beck. One could cite cases ad infinitum where mistakes have been made not on the evidence of one witness but of several witnesses. No system is perfect, and mistakes of that kind are liable to occur.

I was asked whether this system would be used for legal oppression. The answer is obviously that as long as the administration of justice in this country remains on the high standard that we now have and have enjoyed, I am sure that whether we have one witness or several witnesses there will be no question of legislation being used for oppression. As the person responsible at the present time for the administration of criminal justice in Scotland I can give the assurance that there will be no question of legal oppression. I know that it was not really intended, but I would resent very much the suggestion that public prosecutions would give any suggestion of legal oppression whatsoever.

Then my hon. Friend asked whether I would give an undertaking that the opera- tion of the Clause would be restricted only to the gangs and not to the individual, to the legitimate poacher who, by some aberration of memory, either forgets to obtain permission, or forgets to put the salmon into his own pot but hands it over to the local hotel keeper. Those are aberrations of memory that are liable to occur, but I cannot say that I will not operate the law in the interest of one section of the community.

Each case must be determined on its own circumstances. If the evidence is in relation to the commission of an offence under Clauses 1 to 4, the accused will be charged under those Clauses, but if it relates to an offence under Clause 7 the accused will be charged under Clause 7. We may find people, at a distance removed from the point where they caught the fish, in possession of the fish and gear, from which the inference can be drawn that the fish has been illegally taken, although we are not able to pinpoint the spot on the river from which the fish were taken. That was one of the dangers and difficulties of the past.

8.45 p.m.

I have come to the conclusion that, on the whole, the necessity for preventing the depredations upon our fish stocks in Scotland by gangs is such as to justify the invocation of this rule of evidence, bringing this on all fours with the rule applying to game. My hon. Friend wanted to know if we would give the ordinary angler all the protection that we could. If a man is an ordinary angler he does not need protection.

Mr. Ross

Even when he is poaching?

The Lord Advocate

If he is poaching he is not an ordinary angler. Perhaps I might, as inoffensively as possible, call him an extraordinary angler.

Mr. Ross

He can still be accused of poaching.

The Lord Advocate

I agree that he can still be accused of poaching, but the evidence will be weighed by the Procurator Fiscal or, in serious cases involving indictment, by me, the Solicitor-General or one of our deputes, before any prosecution is initiated. If we are to return to the argument that in order to justify a grievance against an angler some people are prepared to give perjured evidence, we are liable to get that whether one witness or two witnesses come forward to give evidence.

By and large we have to make up our minds whether we are to make an effective assault on the gangsters who are ruining the fish in Scotland. If it is necessary to introduce this rule in order to do so—we take into account the very cogent arguments advanced by my hon. Friends—at the end of the day it may be a balance of advantages against disadvantages, and, even judging the matter from that point of view, having regard to the serious nature of the problem with which we are faced, we have come to the conclusion that the balance is in favour of adopting this system in order more effectively to wage war against the gangsters. In these circumstances I am afraid that I must resist the Amendment.

Mr. Jack Jones (Rotherham)

The House may think that a contribution by an hon. Member from South of the Border in a debate of this description is almost next to sabotage, but I want to say something in support of the Amendment. I speak as an angler and a justice of the peace, and also as one who has been accused occasionally of doing a little bit of what one might call "fair poaching"—and in Scotland, too. We have heard the argument that it would weaken the Bill to delete the subsection, but I submit that that is not the case. In a court of law the value of the evidence of one witness or two, three or four witnesses is assessed according to the type of evidence submitted, but what will happen in the following circumstances?

We may have the case of a man returning south after visiting Scotland by car, and he might buy a salmon, not knowing whence it had come. He might have a rod and line with him and might have been doing some legitimate coarse fishing. Suppose he decides to take a look at the river and is discovered there with a salmon in his car. A case of that sort happened. A bailiff was told that unless he got a conviction within a month, a more efficient bailiff would be sought. Thereupon the bailiff brought an accusation against a person who had previously taken salmon, although he had not done so that day. The case came before the sheriff. The bailiff said that he had found a salmon in the man's possession. The man went into the witness box and stated that on the day in question he did no such thing as take salmon. On that occasion the sheriff was convinced that the accused man was not guilty and gave his decision accordingly. Coming out of the court the bailiff complained that it was a damned shame that a bailiff of his standing should be put on oath in a fishing case of that type.

I submit legitimately and fairly that if this concession were made and subsection (3) deleted, it would not weaken the case against the gangster poacher or the individual village poacher. It depends entirely on whether the evidence is, according to the idea of the sheriff, correct or otherwise. I submit that if this subsection remains in the Bill it will give an opportunity to the vindictive bailiff. There are not many, but there may be the odd one who has for a long time failed to make a case against the person he has been wanting to get hold of. The Lord Advocate, therefore, could reasonably accept this Amendment without weakening the power of the sheriff or the ability of a bailiff to get a conviction.

Mr. Manuel (Central Ayrshire)

My hon. Friend the Member for Kilmarnock (Mr. Ross) and my hon. Friend the Member for Bridgeton (Mr. Carmichael) spoke on this matter in a previous debate. I associated myself then with what they said and I associate myself with them on this Amendment. The Lord Advocate indicated that it made no difference if the word "credible" were removed. May I put the following point to him? I take it that hardly any sheriff would demur if the witness coming forward was a bailiff. It would be hard to say he was not a credible witness, yet in many communities the standing of bailiffs is not considered very high. As my hon. Friend the Member for Rotherham (Mr. Jack Jones) said, we know that convictions have been tried for over long periods by bailiffs or gamekeepers, or persons of that type employed by landlords and lairds, because they suspect someone may have been poaching or infringing the law but they could never get any real proof of it.

As I see it, we could have in many of our Highland communities, by this one witness procedure, convictions being secured which previously would not have been thought of. I am not speaking in relation to gangs, which must be sup pressed with the utmost energy, but of little Highland villages miles remote from anywhere, with trout but no salmon fishing, and where the lads of the village have been accustomed to fishing the lochs and rivers for trout. There it will be much easier, if there is some person who wants a conviction, than it would have been previously when they were never even asked if they had a permit to go on that loch or river.

Mr. Gage (Belfast, South)

If water bailiffs are the sort of people the hon. Gentleman describes, who might give perjured evidence, why should not two give it just as much as one?

Mr. Manuel

Because there is a double chance of tripping them up. The defence at any rate would have an opportunity of questioning both.

The Lord Advocate said something about the principle having been incorporated in the Act of 1862 in connection with the game laws, but that is no valid reason for saying that it is reasonable today. Many things happened in former centuries, and I believe that in earlier days people could be hanged for taking sheep. We are not prepared to say that because of the great vintage of the law that provision would necessarily be good now.

Because of our accepting—and we do accept readily—the power of search being extended where hitherto there was not the power for bailiffs to make a search, convictions can be obtained very much easier. Formerly one might have seen a salmon but one would not know whether it had been poached, although one might have had suspicions. But now that there is to be opportunity for search by bailiffs, the Bill is strengthened in this respect.

This matter might have been dealt with far more realistically by people with knowledge of angling conditions. I do not think that the Lord Advocate is an angler—at any rate, not in the sense about which we are talking tonight. The Secretary of State does not have the same excuse; I understand he is quite an ardent angler. One who is familiar with angling knows that the hour of gloaming is the hour when one can get a trout easier, perhaps, than at any other period of the day.

Mr. Carmichael

My hon. Friend is giving himself away.

Mr. Manuel

I am talking of legitimate fishing.

It would be quite easy for brothers or twins, or people like that, to be fishing in the gloaming and to be mistaken for each other, but the one witness could be quite definite in his impression of the person who had been fishing. If the sheriff is a non-angler, and imagines that everything happens in daylight and is crystal clear, his mind will not be receptive to the conditions under which fishing takes place.

My right hon. and learned Friend stated that the English law in this connection followed the one-witness procedure very much more than did the Scottish. While I believe that is true, it is very seldom that a person is convicted in England on the uncorroborated evidence of only one witness. I have not known of a single case of this kind in which there has been a conviction without corroborative evidence. Bearing everything in mind, we are taking a step backward, and I hope we can have some assurance that in the type of case we have been discussing there will be protection against a misuse of the Clause.

Mr. Pryde (Midlothian and Peebles)

I cannot hope to display the easy, facile, elastic logic of my hon. Friend the Member for Rotherham (Mr. Jack Jones). The Lord Advocate, with all his undoubted talent, has argued that it is good law to convict a man on the evidence of only one witness. I should like to ask my right hon. and learned Friend if the evidence of a landlord would be considered sufficient to convict a prisoner in the dock. All the wealth of the Lord Advocate's oratory would mean nothing to the innocent man in the dock who stands to be convicted on the evidence of, say, one spiteful, venomous witness with a grudge against him. It is no good trying to blame the sheriff, because the sheriff must do his duty. His duty is to take the evidence which is put before him and from it to convict the prisoner.

9.0 p.m.

That is the position in law, and I am thinking of the local aura just as my hon. Friends the mover and seconder pointed out that in local areas there were local influences. I have in mind one case in particular in a town not far from where I stay where, one Christmas Day, a miner who had a great love of birds wanted to form an aviary and went out and caught bullfinches. He was caught and went to the sheriff's court and that day I happened also to be in the sheriffs' court—[Interruption]—for quite good reasons, and this is what I heard. Several cases were tried on similar charges; John Smith, fined 2s. 6d.; William Brown, a weaver, fined 7s. 6d.; John Ernit, a miner of Bonnyrigg, fined £10. That is what I am afraid of happening in the great River Tweed area.

I have no doubt at all that we should take stern measures against the gangs, especially in the North of Scotland, but this Measure will not only be applied in the North of Scotland, but in South Scotland and the landlord will be able to go to court and get a conviction against anyone whom the water bailiff suggests is a poacher. There are landlords in the House of Commons.

Sir Ian Fraser (Morecambe and Lonsdale)

And poachers.

Mr. Pryde

Landlords are the greatest poachers. In the early stages of this Bill I submitted evidence of cases where gear had been forfeited and no charge had been levelled. I have given instances of youngsters who have been accused of poaching and fined sums which were more than the amounts stipulated. There are good grounds for apprehension by the mover and seconder of the Amendment.

I think that at this stage my right hon. Friends would be well advised to reconsider the whole Bill, because this Bill is going to play into the hands of local angling associations. In my constituency one angling association charges outsiders £4 5s. for a season while it gives to the local angler a whole season's fishing for 15s. This Bill and this particular Clause will conserve salmon to such an extent that people will be afraid to go near the banks of a salmon river in case they are apprehended and convicted on the evidence of one witness.

Amendment negatived.