§ Mr. Emlyn Hooson (Montgomery)
I beg to move Amendment No. 38, in page 4, line 14, after ' Kingdom ', insert:'with the intention of avoiding examination by an immigration officer '.
§ The Temporary Chairman (Mr. John Brewis)
We are to discuss with this Amendment the following two Amendments: Amendment No. 40, in page 4, line 35, leave out subsection (4);
§ Amendment No. 41, in page 5, line 4, leave out subsection (5).
§ Mr. Hooson
Clause 3 provides for certain offences by amendment of the principal Act, and we are concerned about the way in which the provision is drawn. The new, Section 4A(1) provides:Subject to the following provisions of this section, if any person being a Commonwealth citizen to whom section 1 of this Act applies lands in the United Kingdom and does not fulfil either of the conditions specified in the next following subsection, he shall be guilty of an offence.'There is no reference to any need for the prosecution to prove intention. What the Government have in mind is that if anybody lands in this country without fulfilling the requirements of subsection (2) and with the intention of avoiding examination by an immigration officer he shall have committed an offence. Nevertheless, it is not incumbent on the prosecution to prove any intention.
Furthermore, under subsection (4) there is a shifting of the burden of proof that is normal in all our criminal cases. With very rare exceptions, the prosecution must prove the offence. Here the proviso is made that the onus of proof is on the accused. Under the subsection he must prove his innocence, and there is the same provision in subsection (5).
If the Government are intent on an effective Measure, they try to close all loopholes. But it is wrong for them to do so by this method. It is very dangerous in any legislation to reverse the normal onus of proof that have obtained in our courts. It is a negation of justice, and why should we do it?
The Solicitor-General will agree that it is only in very rare circumstances that one can justify having an offence without having to prove any intention, as is the case here and later to reverse the onus of proof and demand of a man that he prove his innocence.
This is entirely unjustified. The Government would have to do a great deal to satisfy us in these circumstances. Unless we are satisfied that very exceptional reasons exist for these highly un 1650 usual provisions we shall have to divide the House on the issue.
§ The Solicitor-General
I fully appreciate the importance of this matter, which warrants very careful consideration. But in all the circumstances the Clause in its present form is satisfactory and on the whole approaches the problem in a sensible and fair fashion.
The Amendment seeks to spell out the burden which shall be on the prosecution to prove the intention of a person landing in the United Kingdom to avoid examination by an immigration officer. If the Clause did not contain subsection (3) there would be great force in the hon. and learned Gentleman's argument, but I invite him to consider the subsection's importance.
It provides thatThe Secretary of State may by order provide that subsection (1) of this section shall not apply to a person who lands from a ship or aircraft in such circumstances or combination of circumstances…as may be specified in the order.4.0 a.m.
What is intended in the Order, and what is contemplated, is that the Order will specify the circumstances where examination by immigration officers is considered wholly unnecessary or impractical, in, for example, cases of seamen on shore leave, or aircrew stopping over between flights, air passengers in transit and passengers travelling within the common travel area formed by the United Kingdom, the Channel Islands, the Isle of Man and the Republic of Ireland. The hon. and learned Gentleman will appreciate the significance of this.
If the form of the Order is such, as is intended, to comprise all—I am tempted to say" imaginable "—reasonably contemplated innocent processes of landing, then I would have thought that the matter of the burden of proof would be regarded as satisfactorily dealt with in the Bill. What I put to the Committee is that if in the Order, the Secretary of State spells out, as it is intended he will, all processes of innocent landing and arrival—the everyday affairs which arouse no suspicion at all—then it leaves a very small area undefined and not dealt with. In that small area I would invite the Committee to take the view that it was reasonable that the burden of proof 1651 should be, as it were, upon a defendant to show what reason he had for landing or arriving in what, on this hypothesis, would be a wholly unusual and exceptional fashion.
This is a difficult matter, as the Committee will appreciate—to establish intention. One derives intention, or one's knowledge of intention, from the available facts and it is often a necessary element in a prosecution. None the less it is a difficult matter, and in my submission, when one has narrowed down the area of risk by setting out, as is intended in the Order, the correct and legitimate arrivals and landings, and so forth, and one leaves a very small area of suspect arrival and landing, then in that context I suggest that it is entirely fair and reasonable that the person arriving should be in a position of having to satisfy the court that he is upon a legitimate purpose, and in the event of his failing to do so, that the assumption must be drawn that he is appearing unlawfully and in contravention of subsection (3). That is the submission I make on this point, to which we have given careful thought.
§ Mr. Gurden
I am not a lawyer, and the previous speakers know more about these legal matters than I do. It seems a bit odd, and I am open to criticism because I may be wrong, that a person who arrives in this country legitimately and presents himself to the immigration officer should have the burden placed upon him to prove that he is entitled to come into the country. Apparently, if a person is suspect and arrives at a port, under this Amendment the burden of proof is not put on him. He would be placed at some advantage as compared with the man who attempted to enter legitimately. I am not quite sure that I understand why such an Amendment has been moved.
§ Mr. Hooson
What I find unsatisfactory about the Solicitor-General's reply is that by subsection (3)The Secretary of State may by order provide".It is not necessary, therefore, for the Secretary of State to do this. It is a discretionary power which is being taken and it might not be exercised. I under 1652 stood the hon. and learned Gentleman virtually to indicate that it is the definite intention of the Secretary of State to make such an Order as is provided for by subsection (3). Are we to take it that that is a definite undertaking despite the use of the word "may"?
I accept immediately that, as the Solicitor-General has said, the risk is within a very small sphere, but it is a risk of real injustice. In all our legislation, the chances of an injustice are always fairly small, but there is a chance of a real injustice which need not occur. It is unnecessary to have this provision.
If the Government accepted that the prosecution would have to prove an intention, it would not be a difficult matter. It is a matter to infer from the circumstances. What one envisages here, however, is a man who is not very articulate, who is in the country innocently, who might accidently have lost his papers and who is in the unhappy position of having to prove his innocence, and the prosecution not having to prove any intention on his part. It appears that in these circumstances there is a small chance of an injustice, but the chance is of a serious injustice being done.
§ The Solicitor-General
I fully acknowledge that my argument to the Committee was founded upon the point that in the great majority of arrivals, the relevant matters and circumstances would be the subject of an Order under subsection (3). I still claim that that is a sound argument and a sound way of approaching the matter.
In the circumstances, I am authorised by my right hon. Friend the Home Secretary to give an undertaking that there will be an Order of the kind contemplated permissively in subsection (3). I give that undertaking, which, I hope, the hon. and learned Member for Montgomery (Mr. Hooson) will regard as all-important in this context, because when an Order has been made, and the Order deals with the vast majority of normal transits and arrivals, the kind of arrival with which the hon. and learned Gentleman is concerned will be confined to that very small category of arrival which is inherently suspect and where, in our submission, this treatment of the matter of burden of proof is appropriate
§ Amendment, by leave, withdrawn.
§ Clause ordered to stand part of the Bill.