§ 2.6 p.m.
§ Mr. Anthony Hurd (Newbury)
I beg to move, in page 1, line 10, to leave out from the beginning, to the first "or," in line 11, and to insert:
It falls to me to move the Amendments to this Bill owing to the unhappy circumstances, and for reasons with which we all deeply sympathise, which have caused the absence of my hon. Friend the Member for Brighton, Pavilion (Mr. Teeling), who initially brought forward this Bill and who would have been in charge of it today had it been possible for him to be present.
- (a) attacking livestock, or
- (b) chasing livestock in such a way as may reasonably be expected to cause injury or suffering to the livestock.
661 This Amendment, which perhaps is the most important, together with the other Amendments on the Paper, have been greatly helped forward since the Committee stage by the good offices of my hon. Friend the Parliamentary Secretary to the Ministry of Agriculture. I have had a good many discussions in order to try to reach agreement on some outstanding points of view which we felt could be resolved, because everyone, I think, wishes to see this Bill placed on the Statute Book in as good a form as possible.
This Amendment will make the offence a more definite one. Many hon. Members on the Standing Committee, including the hon. Member for Pontypool (Mr. West), felt that the Bill as originally drafted went too wide and that there might be cases where a dog was merely barking at sheep, harassing them perhaps to a very small extent, but not attacking or chasing them in the way in which we all understand. Therefore, I think there is general agreement that the Bill would be improved by narrowing the terms of the offence and making it a more definite offence that can be proved with more reliability in the courts. It is with those considerations in mind that I have moved the Amendment.
§ Mr. Granville West (Pontypool)
I rise to support the Amendment. It is one which meets some very strong criticisms that were expressed in Committee on the Bill as originally drawn, and I am very grateful to the hon. Member for Brighton, Pavilion (Mr. Teeling) for the consideration he has given to the points of view then expressed. I am sure the whole House will join with the hon. Member for Newbury (Mr. Hurd) in expressing sympathy with the hon. Member for Brighton, Pavilion for his absence today, and particularly for the reason for his absence. I am sure we all sincerely trust that his anxieties will be removed and that his absence from our deliberations will be only of short duration.
It is clear that the Amendment will substantially improve the Bill. On the Standing Committee my hon. Friends and I put down about 18 Amendments to the Bill. The view was expressed that the Bill was too widely drawn, and that has 662 proved to be a view acceptable to the promoters of the Bill. I would welcome the acceptance of the Amendment.
§ Amendment agreed to.
§ Mr. Hurd
I beg to move, in page 1, line 12, at the end, to insert:(3) A person shall not be guilty of an offence under this Act by reason of anything done by a dog, if at the material time the livestock are trespassing on the land in question and the dog is owned by, or in the charge of, the occupier of that land or a person authorised by him, except in a case where the said person causes the dog to attack the livestock.Again, this is an Amendment giving expression to the wish and the common sense of the Committee who considered the Bill. The hon. Member for Pontypool (Mr. West) was anxious that it should not by any chance become an offence for a man to set a dog on to sheep or cattle which were trespassing on his ground. I know, as a sheep farmer, that fences are sometimes not good enough and that sheep stray and do considerable damage to people's gardens, particularly in the spring when the grass is rather short and they think there is something tempting in the village gardens. It is only right and proper that it should not be an offence for a man to clear sheep off his own land, and that the action should not be interpreted under the Bill as his dog attacking or chasing sheep.
The Amendment also applies to a person authorised to have a dog on the land. It may be that a member of the family or some employee is charged to see that sheep do not stray on to other land and it will be perfectly proper for him to see the sheep off that land without committing any offence. I hope that I have made the position clear.
§ 2.15 p.m.
§ Mr. West
I support the Amendment and thank the promoters for their acceptance of the views expressed in the Committee. I support the Amendment for rather different reasons from those put forward by the mover. It meets in some measure my view that if a man in the lawful enjoyment of his own property has dogs exercising upon his land, and if sheep stray upon it and the dogs chase 663 or worry the sheep, it should not be said that the owner of the dog was guilty of an offence, although we are trying to prevent the infliction of unnecessary suffering upon animals. The owner of the dog was using his property in a proper and lawful way. The person who caused the suffering to the livestock was he who allowed them to stray. If we make the owner of the dog liable in those circumstances to conviction and penalties under the Bill, it is only right that the person who, by negligence or carelessness in allowing the livestock to stray, caused them suffering, should also be brought within the Bill.
It has appeared that because of technical difficulties it is not possible to bring this negligent person within the scope of the Bill. If that is so, obviously it would be wrong to bring an innocent person into it. The Amendment makes it possible to give protection to an innocent dog owner in those circumstances, although it does not entirely meet the point we had in mind.
§ Amendment agreed to.
§ Mr. Hurd
I beg to move, in page 1, line 12, at the end, to insert:(3) The owner of a dog shall not be convicted of an offence under this Act in respect of the worrying of livestock by the dog if he proves that at the time when the dog worried the livestock it was in the charge of some other person, whom he reasonably believed to be a fit and proper person to be in charge of the dog.The Amendment ensures that the dog owner who takes proper care to see that his dog is in the charge of a proper person shall not be affected because he has not taken the necessary steps to see that his animal does not run amuck. Members of the Committee felt that protection should be provided for the owner of a dog which, at the material time, was in effective charge by a fit and proper person. If he allows a child or an incompetent person to take a dangerous dog out, he should be held responsible. Otherwise, any offence should lie at the door of the person who had charge of the dog, and the owner should be clear of responsibility. That seemed to Members of the Committee a sensible line to take. We do not want a multiplicity of prosecutions, but responsibility put fairly and squarely where it should lie.
§ Mr. Gerald Williams (Tonbridge)
I do not like this Amendment at all and I think that when it was proposed in Committee we were rather carried away. I had hoped that when it came to be discussed on the Floor of the House we would use our better judgment and not insert the proposed words. The Amendment seems to me to weaken the Bill very considerably. If an owner has a dog, he should be responsible for it, and if he is responsible for it he will then see that if he sends it to a boarding kennel or allows another person to take charge of it, those concerned are responsible people. If the responsibility is divested from the owner, he will not take the necessary care.
My hon. Friend, the Member for New-bury (Mr. Hurd) mentioned children, and a great problem is involved in respect of them for, if the words in this Amendment are inserted in the Bill, it is left to the owner to decide whether the person in charge of the dog is a responsible person or not. Provided he believes that a child is a fit and proper person to take charge of the dog, he is exempt from all further responsibility. Surely we are going too far if we leave it to the owner himself to decide whether a child of nine or ten years of age is a fit and proper person to have charge of the dog.
I pointed out on the Committee stage that, after all, it is the owner who is responsible for what happens to his property. If a ship founders—and we had the report of a case only yesterday—it is the owners who are responsible. The hon. Member for Pontypool (Mr. West) will no doubt point out that that is a case of civil liability; but if a man has a motor car and allows someone else to drive it, he is responsible for insuring the vehicle in case that driver does any harm. It is the owner of a business who is responsible for anything that his manager or other people may do. I am quite sure that the lawyers in the House will agree with me that if a farmer is running a milk business and one of his servants causes adulteration of the milk, the farmer is responsible and has to foot the bill. In the same way, if one is the 665 licensee of a public house and an employee sells drinks after hours, one has to take the blame as licensee.
Surely it is contrary to all our traditions to take away responsibility in this case from the owner of a dog and to leave him free from liability to be summoned simply because he has asked someone else to look after the dog for him. In Committee the Joint Parliamentary Secretary to the Ministry of Agriculture said that that would be all right and that the police would use their discretion as to whom they would prosecute. That is desirable, but if I read the words of the Amendment rightly the police will not have discretion. They will not be able to prosecute the owner but only the person who was in charge of the dog at the time.
I am not a lawyer and I see that there are some hon. and learned Members in the House, but unless they satisfy me that I am wrong in my contention, I shall feel very inclined to oppose this Amendment in the Lobby. I can foresee in practice that if the dog worries sheep it is pretty obvious that it will not have been encouraged to worry sheep by the person looking after it at the time. But it might be the case that the owner knows that the dog has been in the habit of worrying sheep in the past.
If the responsibility is taken from the owner and he sends the dog to a boarding kennel, he might not even bother to say that the dog is accustomed to worrying sheep. It is his job to do that, but if he has no responsibility for the dog he probably will not do it. In this Amendment we are going very far away from the normal practice in this country of making the owner of a thing responsible for it. I think that the situation should remain as it is at present.
§ Lieut.-Colonel Sir Thomas Moore (Ayr)
I find myself very much convinced by the argument which has just been advanced by my hon. Friend the Member for Tonbridge (Mr. G. Williams). This Bill is not directed against dogs. It is directed against irresponsible owners of dogs. It seems to me that one is taking a grave responsibility in placing on the courts the duty of deciding when an owner can reasonably believe that someone else is a fit and proper person to be in charge of a dog.
666 How on earth can the words "reasonably believed" be properly interpreted? What does "reasonably" mean in technical and legal jargon? I do not know. It may have some meaning in the courts that it does not have for me. I know that if I were asked to decide whether a man was a reasonably fit and proper person I should have to know all about the man, all about the task entrusted to him, and all about his antecedents, to find out whether he was likely to conduct himself as I would reasonably expect him to do. I think that my hon. Friend the Member for Tonbridge has established a case that this wide discretion would not be put into effect without great difficulty. Perhaps the promoters of this Amendment will now be inclined to withdraw it.
§ Mr. R. Bell
By leave of the House, I should like to reassure my hon. Friends on this point. My hon. Friend the Member for Tonbridge (Mr. G. Williams) need not fear that it is entirely a matter for the owner to decide whether the person to whom he has entrusted the dog is a reasonably fit and proper person. It is quite clear from the wording of the Amendment that it is the court which decides that. I should like to reassure my hon. and gallant Friend the Member for Ayr (Sir T. Moore) that the courts have considerable experience in interpreting the word "reasonably." The courts do not have to investigate the antecedents of the person, because in law there is an entity known as a "reasonable man" whose antecedents are lost in antiquity but whose behaviour is reasonably well established. The courts, therefore, would have no difficulty in interpreting the form of words which is used in the proposed Amendment.
It is common in the law for civil liability to be indirect, and the civil liability of the owner will continue in spite of this Amendment; that is to say, if a dog does damage in such a way that the owner of the dog would be liable under the law for the damage, this Amendment will not alter that liability in the least. It is unusual in criminal law to make someone who is indirectly responsible guilty of a criminal offence. To a slight extent we are departing from that already in this Amendment, because we are saying that in the normal course of events not only the person in charge 667 of the dog but also its owner shall be guilty of a criminal offence. That is running a little contrary to the general practice of the law.
We are only allowing the owner of the dog to establish a defence. If he does not establish it he will not succeed in avoiding a fine; but by this Amendment he has to establish affirmatively that he entrusted the dog to someone who, in the opinion of the court, was thought to be a reasonable person. If he does that I think that we must excuse him from criminal guilt as distinct from civil liability. I hope that in the light of that explanation my hon. Friends will feel that this is a reasonable and acceptable Amendment.
§ 2.30 p.m.
§ Mr. West
I am extremely sorry that the hon. Member for Tonbridge (Mr. G. Williams) was not convinced by the arguments on this point which were stated in the Standing Committee. We had a very long and interesting discussion on this question of criminal responsibility, and I think it was my hon. and learned Friend the Member for Aberdeen, North (Mr. Hector Hughes) who referred to the motor car case which raised the question, if an owner of a motor car allows the car to be used by someone else who drives it dangerously, whether the owner of the car is also to be held guilty of an offence. That is what the hon. Member for Tonbridge is arguing—that it is the responsibility of the owner.
As I understand them, the hon. Gentleman's objections to this Amendment fall into two parts. The first is that the police will not be able to prosecute the owner—and I hope to satisfy him that that is not so—and the second is that the owner will not take care. I hope to satisfy him that that ground of objection is also invalid. In the first place, it is quite clear that if an offence has been committed under the Bill the prosecution will be able to bring their proceedings against the owner. They will be able to bring their proceedings against the person who is in charge of the dog.
But if the owner goes to the court and defends the proceedings, and can satisfy the court that at the time the offence is alleged to have been committed the dog was in the charge of a person whom the owner reasonably believed to be a fit 668 and proper person, then the court can accept that explanation and can acquit him, because the man has taken reasonable care and the dog was in the charge of a person whom he reasonably believed to be a fit and proper person.
We had a discussion in this House not long ago on the question of subjective and objective tests, and I think it has been established that the expression "reasonable cause to believe" or "reasonably believes" means that the court will have the right to investigate the grounds upon which the man believes that the person who had charge of the dog was a fit and proper person. I am sure that the hon. Gentleman who is objecting to this Amendment does not want both the owner and the person in charge of the dog to be convicted. There is no point in having both convicted. One has been guilty of an offence, and surely a conviction against one is quite satisfactory.
It is strange that I should be appealing to the hon. Member for Tonbridge not to delay the proceedings of this Bill by persisting in his objection to this Amendment. I hope, therefore, that on further consideration he will agree that this Amendment is very satisfactory and should be accepted.
§ Amendment agreed to.
§ Mr. Hurd
I beg to move, in page 1, line 21, to leave out "twenty," and to insert "ten."
The purpose of this Amendment is to substitute a fine of £10 for a fine of £20 in the case of a first conviction. The Standing Committee had some discussion on this point, and I think we all left that Committee feeling that it would be more reasonable to have in the Bill a figure of £10 instead of£20.
§ Mr. R. Bell
I beg to second the Amendment.
I would only say that I am sorry to do so because I did think that £20 was a better figure, but we have had a great deal of co-operation and accommodation all round on this Bill, and in the circumstances I am happy to second the Amendment.
§ Sir T. Moore
As a rule I think that in these matters a big penalty is better than a small one, because we should drive home the gravity of the offence in the first instance and thereby avoid having a repetition of the offence. But in this case the average owner of a dog which will possibly be committing offences under this Measure are poor people and, therefore, I think they should be given a warning rather than be subject to too great a financial penalty. Accordingly, I think it is better in this instance to accept the Amendment and insert £10 instead of insisting on the higher penalty.
§ Amendment agreed to.
§ Mr. Hurd
I beg to move, in page 1, line 22, to leave out, "or any other person."
As the Clause stands, it provides that the present owner of a dog which has been a previous offender, although he may not have been the owner of the dog at the time at which the offence was committed, would be liable to the full penalty of a fine of £50. In Committee we had a good deal of discussion on this matter because we wanted to let the courts have a pretty strong and effective sanction against the dog owner who habitually allowed the offence of sheep worrying to be committed. I do not think there was any disagreement that where there are habitual offences the maximum penalty should be a fine of £50.
But we realise that there might be exceptional cases. For example, an Alsatian which had started its life in Sussex might have caused trouble to sheep in the constituency of my hon. and gallant Friend the Member for Lewes (Major Beamish) and, for that reason, been sold in the constituency of my hon. Friend the Member for Westmorland (Mr. Vane). The new owner would probably not know anything about the earlier offence. Indeed, the vendor of the dog would probably be very careful to extol the dog's virtues and to conceal that black mark, and the new owner would have no means of knowing that the dog had got this vicious streak in it. Nevertheless, he would be charged as the 670 owner of a vicious dog which had offended before.
We felt that that was hardly reasonable, and so this Amendment is being moved to relieve the new owner of the dog of that liability. I should like to make it plain that the court would be quite justified in proceeding to deal with this dog which was becoming an habitually vicious offender under the Dogs Acts. It could order a dog to be kept under control or it should be destroyed, but under this Bill the owner would not be branded as the owner of a dog that was an habitual offender and thereby become liable to the full penalty of a fine of £50.
§ Mr. R. Bell
I beg to second the Amendment.
During our debates in Committee we canvassed the possibility of meeting this problem by inserting words requiring knowledge of previous convictions. Had that been possible it would have been a preferable way of dealing with the matter, because the Amendment now proposed cannot, of course, deal with the position that arises if there are transfers of ownership inside a family. That is a real disadvantage, but the difficulties of proof, if one relies upon the test of knowledge, seemed to be insuperable. Therefore, this appears to be the best practical alternative.
§ Mr. West
I hope the House will accept the Amendment which has been proposed because there is something very objectionable in legislating for a man being held responsible and held guilty of an offence and subject to a penalty when he may perfectly well have acted in complete innocence. The case I cited in Committee, which was mentioned by the hon. Member for Newbury (Mr. Hurd), was that a man may buy a dog which is warranted to be quiet, in good condition and so on, but it may be a false warranty. As the Bill was originally drawn, if the dog had committed an offence of which the purchaser was in complete ignorance, and had then committed a subsequent offence the innocent owner was liable to the increased penalty. That is entirely contrary to the conception of the law passed in this House time and time again.
Therefore, upon that point it is right and proper that this Amendment should be accepted. It brings the position into line with the general provisions of our 671 law, that if a man commits an offence he has had a warning and been punished for it. There are many statutes that provide that if a man is guilty of the same offence on another occasion he suffers an increased penalty. No one objects to that, because there a man is acting contumaciously and with intention to defy the law. But to make a man subject to an increased penalty when he has been acting perfectly innocently in the matter seems to be so absurd that I was not able to accept it in its original form. I am glad that this Amendment has been moved, and speaking for my hon. Friends on this side of the House, we accept it.
§ Amendment agreed to.