HC Deb 29 April 1959 vol 604 cc1409-17
Lord John Hope

I beg to move, in page 11, line 10, to leave out "is in possession of" and to insert "has used".

It may be convenient if we consider with this Amendment the next three Amendments in line 12, to leave out from "Act" to "that" in line 13, in line 21, to leave out "is in possession of" and to insert "has used", and in line 24, to leave out from beginning to "that".

There was considerable criticism on both sides of the Committee of Clause 25 on the ground that it would enable people to be charged with unlawful possession of firearms or ammunition on suspicion that they intended to commit an offence. These Amendments meet that point. Their effect will be that it will be pos- sible to charge a person with unlawful possession of firearms or ammunition only if there are reasonable grounds for suspecting that he has actually used them already to commit an offence. Before he can be convicted the court will have to be satisfied on the evidence that he did, in fact, commit the offence. There will be no question of a person being charged or convicted on suspicion of intention to commit an offence subsequently.

Amendment agreed to.

Further Amendments made: In page 11, line 12, leave out from "Act" to "that" in line 13.

In line 21, leave out "is in possession of" and insert "has used".

In line 24, leave out from beginning to "that".—[Lord John Hope.]

Mr. T. Fraser

I beg to move, in page 11, line 27, at the end to insert: (4) The provisions of this section shall not apply in the case of any owner or occupier of agricultural land who is found in possession of any deer or firearms or ammunition on the land which he owns or occupies. I think that the purpose of the Amendment is fairly clear. It is a reasonable Amendment and I should like to think that the Government will accept it, but experiences earlier this evening do not give any reason for hope in that respect.

The Clause deals with a person who is found in possession of deer or firearms so as to give a constable—one person—reasonable ground for suspecting that he has come by the deer illegally and that, as the Clause has just been amended by the Government, the firearms have been used for the purpose of committing an offence under Clause 22, 23 or 24.

The House should note that a person picked up under this Clause need not necessarily have committed an offence under Clause 22, 23 or 24. He need not have been found committing an offence. He need only have been found in possession of deer or firearms or ammunition in a way which gives one witness reasonable ground for suspecting that he came by the deer by committing an offence under Clause 22, 23 or 24, or that he has used the firearms or ammunition for the purpose of committing an offence under Clause 22, 23 or 24.

I hope that the reason for the Amendment is obvious. Any agricultural owner or tenant has the right to take deer to protect his crops. If he is found in possession of deer, therefore, we ought not to provide that a single witness can obtain a prosecution against him, that witness being the constable who has picked him up and who has ground far suspecting that he may have come by the deer not by taking it for the protection of his crops under Section 43 of the 1948 Act but by committing an offence under Clause 22, 23 or 24. Such a person could be convicted and punished as if he had committed an offence under those Clauses.

A single witness can charge a man and his evidence can be taken in court as quite adequate. That is notwithstanding all that the Sorn Tribunal said the other day in the Waters case about the sanctity of our law and the need for corroborative evidence. Under this Clause one witness, without any corroboration, will be able to obtain a prosecution against a farmer who is in possession of a firearm and ammunition, which every reasonable person would expect him to possess for the purpose of protecting his crops.

The whole purpose of the Clause is to make it easy to obtain prosecutions on the evidence of one witness. We are saying that we ought not to enable prosecutions to be obtained easily against a farmer who is found in possession of deer, in view of the fact that he has a right to have a carcase on his farm and to have firearms for the protection of his crop. We ought not to enable that to be done against a farmer found in possession of firearms or ammunition on his own land.

Under the Amendment, if a farmer or crofter is found in possession of deer, or firearms or ammunition on land other than his own, it will still be possible for him to be picked up under this Clause, but if he is found on his own land and found in possession of deer, firearms or ammunition, to which he is perfectly entitled for the protection of his crop in certain circumstances, I hope that the Committee agrees that he ought not to be punished under Clause 22, 23 or 24. He ought not to be picked up under this Clause and punished as if he had committed an offence under Clause 22, 23 or 24 when he has done nothing of the kind. I hope that the Amendment commends itself to the House.

Mr. D. Johnston

I beg to second the Amendment.

10.30 p.m.

Lord John Hope

I am sure that, in a given case, the occupier's rights as an occupier will be just as fully known to the authorities as they are to the hon. Gentleman and to the House. The Amendment would have the effect of making the agricultural occupier's own land a sanctuary for him, so that if he had been poaching elsewhere he would be freed of all penalties provided he got back to his own land before he was caught. There really can be no justification for that. There is no reason why this idea of sancturary should apply to a man who has committed the relevant offence outside, just because he happens to have got back to his own land on which, as everyone knows, he would be allowed to shoot a deer in the circumstances mentioned.

Mr. T. Fraser

If the prosecution can show that, notwithstanding the fact that the man was on his own land before being picked up he had committed an offence under Section 22 of what will be the Act, he would be prosecuted under Section 22, and similarly under Sections 23 and 24. The Under-Secretary should know that, and, if he does not, he should get some advice from the Lord Advocate.

By this Amendment we are seeking to protect the occupier. Many hon. Members with knowledge of the Highlands must know the dangers we have in mind, and must know full well that notwithstanding the fact that the crofter, the occupier, the tenant is back on his own farm before he is picked up, if the prosecution can show that he committed an offence on any other land he will be prosecuted under an earlier Clause. But this Clause is calculated to deal with the person who cannot, for one reason or another, be prosecuted under Clauses 22, 23 or 24.

The Under-Secretary, in his efforts to satisfy some of the worst elements in the Highlands, does not care whether he takes into the net the humble crofter or farmer who has suffered great losses, whose crops have been taken by these marauding deer over the years. He has not been able to claim compensation for that, but now he runs a grave danger, merely by taking a deer to protect his crops, of having imposed on him the savage penalties of Clauses 23 and 24.

Mr. G. M. Thomson

If this Amendment is not accepted, is there not a very grave danger of a miscarriage of justice? Is it not quite possible for a crofter, having quite legitimately shot a deer on his own land, and having been found in possession of the carcase and the firearms, to come under suspicion of having poached the deer and so liable to the penalties set out just because some poaching has taken place outside his own land? If there is to be any sort of fairness in this business at all, the Government should do something to protect the ordinary crofter, and give him some safeguards.

As things stand at present, the provisions of the Bill are very heavily weighted against the ordinary crofter who is looking after his own land and crops—and, indeed, engaging in the traditional poaching for the pot. I understood that the purpose of these changes in the law as set out in this Clause was primarily to remove the cruelty associated with gang poaching, instead of which it is becoming more and more clear, as we reach the closing stages of this Bill, that it is being used by the land-owning interests and this Conservative Government to protect the old-fashioned shooting rights of private property.

That is the only possible justification for the Minister's refusal of this very moderate and reasonable Amendment. The Government could have accepted this provision, and so made sure that the crofter on his own land, his own farm, would have had safeguards.

Mr. Woodburn

Perhaps the Secretary of State will speak on this Amendment. My hon. Friend the Member for Hamilton (Mr. T. Fraser) has advanced a very cogent argument, and the same argument was put by hon. Members opposite in Committee. Has not the right hon. Gentleman read the Report of the Waters Tribunal, which commented very severely on the dangers of accepting the evidence of only the one witness? Surely, with something affecting so many people who are cultivating the land he will heed the warning of that Tribunal. If he does not intend to do something about altering the law as to the one witness, he should at least accept this Amendment so as to ensure that nobody suffers injustice.

Mr. Maclay

I can assure the House that we have been very anxious to give all the protection that is reasonable and proper, but I do not think that this Amendment is a practicable one to accept without opening up possibilities of poaching. The wording of the Amendment is not suitable and it is difficult to find other words to get over the difficulty in which we find ourselves.

The owner or occupier of agricultural land might be someone who is not a crofter, about whom we are all thinking and want to help, but someone linked up with a gang poaching operation in the big town. These things are not unknown. It might be someone who, to take an extreme case, bought a small farm with this operation in view. I do not know how we could catch such a person if we accepted the Amendment.

Mr. D. Johnston

The right hon. Gentleman could catch the man in the ordinary way. It would be proved that he had committed an offence. All that the Clause does, in effect, is to allow the offence to be proved in a particular way by saying that if a man is found in possession of a gun or of a deer that shall be a presumption that he has committed an offence. That allows the Crown to charge him with that offence. Is that not so? If that is so, it allows a person who is perfectly legitimately m possession of a gun on his own land or of a deer shot on his own land to be charged with these offences.

Mr. Maclay

The court must be satisfied that the deer and the firearm are connected with the condition laid down in an earlier Clause. They do not stand by themselves. I think that hon. Members opposite are raising bogys which are never likely to arise. I do not believe that the person about whom we are really concerned will suffer under the Clause. It is more likely to enable us to get the gang poacher whom everyone agrees we want to resist.

Mr. Willis

It is all very well for the right hon. Gentleman to say that we are really quite wrong in our anxiety about the Clause. He must surely realise that the same anxiety has been expressed in newspapers as widely different as the Manchester Guardian and the Sunday Express, both of which have condemned the Clause.

The Clause is a bad Clause, and the man who ought to be defending it is the Lord Advocate. The right hon. and learned Gentleman ought to be defending the Clause instead of just sitting on the Front Bench and letting the Secretary of State and the Joint Under-Secretary take the can back for it. It is a Clause that breaks most of the traditions of Scottish law and most of the principles. The Lord Advocate knows that. But, of course, the right hon. and learned Gentleman defended the Clause in Committee on the astonishing principle that we had to depart from these principles of Scottish law to catch the culprit.

I am staggered at such an admission, and, of course, the Secretary of State has virtually said the same thing tonight, that we cannot catch the culprits unless we have the Clause. Are we to depart from every principle in our legislation, principles which have been at the back of our system of justice in Scotland for centuries, to make it simpler for the Government of the day to catch the culprits? Is this the new philosophy of the party which stands for the freedom of the individual? If so, that is an astonishing doctrine.

As I have said, this is a bad Clause. We have tried at least to give the crofter and the farmer some protection against the worst effects of the Clause. It is very late now, but, otherwise, we could give the right hon. Gentleman a number of examples of how the ordinary crofter or farmer can be caught under the Clause, and very easily caught. through no fault of his own when simply trying to defend his own crops.

The right hon. Gentleman is not concerned about that. Both the right hon. Gentleman and the right hon. and learned Gentleman say that we have got to catch someone. It is a shocking position which the Government have reached. To try to catch somebody, they are prepared even to perpetrate a Clause of this description and not even consider Amendments designed to mitigate its worst effects.

Mr. Grimond

Even at this late hour, I must intervene because I believe that there is wide anxiety about the effect of the Clause. We have to weigh against the possibility that a few poachers may get off the possibility that we depart considerably from well-established principles and also the possibility that some innocent people may conceivably be put in jeopardy.

I am not very much impressed by the Secretary of State's argument that people are likely to take farms or agricultural land so that they can engage in mass poaching. I feel that he might give serious thought to the possibility that there is no justification for this provision and consider whether there are not sufficient penalties already in the Bill for poaching, without departing so far as the Clause appears to do from what have again and again been stated to be essential safeguards for the individual.

Amendment negatived.

" (3) Notwithstanding the provisions of section twenty-one of this Act, or of any order made thereunder, it shall not be an offence for an occupier of agricultural land or of enclosed woodlands, or for any person authorised by him in writing in that behalf, to take or kill during a close season any deer found on any arable land, garden grounds or land laid down in permanent grass (other than moorland and unenclosed land) forming part of that land, or on such woodlands, as the case may be. (4) Notwithstanding the provisions of subsection (1) of section twenty-three of this Act, it shall not be an offence for an occupier of agricultural land or of enclosed woodlands to take or kill during the period specified in that subsection any deer found on any such arable land, garden grounds or land laid down in permanent grass as aforesaid, or on such woodlands, as the case may be. (5) The provisions of the last two foregoing subsections shall be construed as one with the Agriculture (Scotland) Act, 1948."

Perhaps it would be convenient, Mr. Speaker, to discuss, at the same time, the Government Amendment to the Third Schedule.

Mr. Speaker

indicated assent.

Mr. Maclay

I hope that the House will forgive me if I give a little detail about this Amendment, because it is important. Two points are covered, the savings on the prohibition in the close season and the savings on night shooting. I will, if I may, give the explanation of the Amendment in technical terms, and then I will try to explain precisely what it does in relation to the present position and the position under the Bill.

The new subsection (3) of Clause 33 has substantially the same effect as the old subsections (3) and (4). The old subsection (3) provided a saving for close season killing by tenant-occupiers of agricultural holdings or enclosed woodlands and persons with their written authorisation exercising their right under Section 43 of the Agriculture (Scotland) Act, 1948, to kill deer on their enclosed land.

The old subsection (4) exempted owner-occupiers, or persons with their written authorisation, from any penalty for killing deer on their enclosed land during a close season. The new subsection (3) deals more simply with the matter by dropping the distinction between tenant-occupiers and owner-occupiers; but the right to kill during close seasons is still restricted to occupiers or persons with their written authorisation killing on enclosed land.

The new subsection (4) fulfils an undertaking which was given earlier to con-