§ 4.2 p.m.
§ An Amendment reported (according to Order).
§ Clause 1:
§ Possession of domestic fowl and appliances for use in fighting rendered unlawful
§ 1.—(1) If any person has in his possession—
- (a) any domestic fowl prepared for use in fighting;
- (b) any instrument or appliance designed or adapted for use in connection with the fighting of any domestic fowl,
§ (3) For the purpose of this section a domestic fowl shall not be deemed to be prepared for use in fighting by reason only that it has been subjected to all or any of the following operations, that is to say—
- (a) the removal of its comb or wattle,
- (b) the cutting or clipping of its wings or wing feathers.
LORD LLEWELLIN moved to omit paragraph (a) of subsection (1). The noble Lord said: My Lords, your Lordships will remember that on the Committee stage of this Bill, as on the Second Reading, some comment was made in regard to the drafting of the latter part of Clause 1. In the Committee stage it was led by the noble and learned Earl, Lord Jowitt, and I said a few words in support of the point he then made. The point was that the Bill as at present drafted—without the Amendment standing in the name of the noble Lord, Lord Merthyr, on the Paper—does not give any idea to a bench of magistrates sitting to hear one of these
cases what is a domestic fowl "prepared for use in fighting"—or, indeed, what has happened to it. I put down this Amendment (and the two subsequent Amendments standing in my name are consequential to it) to delete entirely from the Bill Clause 1 (1) (a), and to leave it that a man can be prosecuted if he has in his possession
any instrument or appliance designed or adapted for use in connection with the fighting of any domestic fowl.
I have never kept cockfighting fowls, nor have I ever been to a cockfight. I must say that I am extremely ignorant of this subject, except that I understand that a cockfight always takes place with artificial spurs added to the fowl. I should have thought that Clause 1 (1) (b) was sufficient for the purpose which the promoters of this Bill have in mind.
It would perhaps be convenient if, at this moment, I said a word about the Amendment which has been put down the noble Lord, Lord Merthyr, which obviously is an alternative course to the one proposed by my Amendments, and is certainly better than the provision at present in the Bill. If one looks at the Amendment in the name of the noble Lord, Lord Merthyr, one finds that it says:
For the purposes of this section a domestic fowl shall not be deemed to be prepared for use in fighting unless it has been subjected to all or any of the following operations"—
"any," of course, being the important word in that context—that is to say, it has had its tail feathers cut or clipped, or has had its spurs removed. In my submission, the effect of that provision is this. Any person who cuts the spurs off a domestic fowl is putting himself or herself into the category of a person suspected of keeping those fowls for cockfighting purposes. In a way, that is absurd, because the only cases of which I know where spurs have been taken off cocks is to prevent them doing damage to one another in a small run by fighting. Except for those few people in this country who, I am told, still take part in cockfighting, the normal person takes these spurs off cocks or cockerels to prevent them fighting when they are kept in a fairly confined space. If that is to be done in future, it will put those people into the category of suspects, not of humanity but of inhumanity. That would be one of the results of adopting the
Amendment of the noble Lord, Lord Merthyr.
There are also reasons why, if the tail of a domestic fowl is too long and drags itself in the mud, it is quite proper to clip it off. But if you do that after this Bill passes into law—if it does pass into law with this Amendment—it will perhaps be thought that you have done it in order to equip the fowl for cockfighting. Therefore, I suggest that we should look rather carefully at this matter before we pass it into law. After all, we are creating a new criminal offence, and we should be careful what we do. I do not overlook the point, of course, that those are only preliminaries to the fact that the court has also to be satisfied that he, the person who had the fowl in his possession,
had it in his possession for the purpose of using it or permitting it to be used as aforesaid.…"—
I suppose that means for use in fighting or in connection with the fighting. That has to be proved but, nevertheless, it is rather extraordinary to find that quite innocent and proper acts, which numerous people may do in connection with the ordinary keeping of domestic fowls, may be one of the preliminary ingredients on which their actions may be suspect as to whether they are keeping these fowls for fighting purposes or not. If that Amendment is not a satisfactory one, then I respectfully suggest to the House that it would be better to cut out paragraph (a) entirely and rely on paragraph (b), because I believe that you cannot in fact stage a real cockfight without having the appliances which, by paragraph (b), are made illegal. For those reasons I beg to move.
Page 1, line 6, leave out line 6.—(Lord Llewellin.)
§ 4.10 p.m.
My Lords, it may be convenient to the House if to a certain extent I follow the example of the noble Lord, Lord Llewellin, and deal, with your Lordships' permission, with the two sets of Amendments together, whilst at the same time reserving the right to say something further when the time comes for me to move my own Amendment. The noble Lord rightly said that this matter has arisen owing to a debate which took place 412 on the Committee stage of this Bill and which was initiated by the noble and learned Earl, Lord Jowitt. There seemed to be, if I may respectfully say so, an assumption behind that debate that nothing could possibly be left to the discretion or the imagination of the magistrates. The magistrates, by the way, have hardly been mentioned in this matter so far, and I would draw your Lordships' attention to the wording of the Bill, as the noble Lord, Lord Llewellin, has done. In lines 9 and 10 of the first page it says that the court have to be satisfied… that he had it in his possession for the purpose of using it or permitting it to be used as aforesaid, …Now, the court can be satisfied only by affirmative evidence, proved beyond reasonable doubt to their satisfaction, and so forth, and surely something must be left to the common sense of any bench of magistrates who have to try a case of this kind. Is there really any risk that the Bench will convict a man who genuinely has removed the spurs only for the perfectly innocent purpose of preventing the cock from fighting? I do not think there is any appreciable risk of that whatsoever. I will deal further with that when I come to my own Amendment. But something can surely be left to the imagination and discretion—
§ LORD LLEWELLIN
I am sorry to interrupt the noble Lord. Surely "imagination" is the wrong word. "Discretion," certainly.
I accept the correction, if the noble Lord prefers it that way. Perhaps I may be allowed to make my point clearer by quoting a random example of another sort of case which magistrates have to try—the charge of dangerous driving of a motor car. I think I am right in saying that there is not a word in the Road Traffic Act of 1930 which says what is to be considered as dangerous driving. The question of what is and what is not dangerous driving is a matter for the magistrates. No doubt I shall be corrected if I am wrong, but I do not believe there is a word in the Act which says that if you drive your car so many feet on the wrong side of the white line, that shall be dangerous driving: the question is left to the justices. So it is in this case. I submit that there is no harm whatsoever in leaving this to the discretion of the 413 justices, who must be satisfied that an offence has been committed. Therefore, I say again that this point has been overstressed. Surely, the whole point is that the court have got to be satisfied by the prosecution, by evidence alone, that the bird has been prepared for fighting. I would ask your Lordships to bear that point in mind.
This Amendment would undoubtedly wreck this Bill. I do not think that there is any doubt or argument about that. The Bill would be left a very small thing indeed, and left in such a way that the only offence created by this Bill would be that of having in one's possession the spurs or some other instrument. Now, these small things are so easy to conceal that the prosecution would hardly ever be successful, because there would be practically no evidence to support the prosecution. In fact, I would go so far as to say, although it is not my Bill, that paragraph (b) of Clause 1 is really a trifling matter compared with paragraph (a), which the Lord Llewellin wants to leave out. I hope, therefore, that the noble Lord who is in charge of this Bill will not accept this Amendment and, indeed, will say, as I suggest may be the case, that it is better to have no Bill at all than to have a Bill amended in this way. This Bill as it stands now has received the verbal support of an official representative of Her Majesty's Government, and therefore I assume that it will also receive the support of the noble Earl who is to speak for Her Majesty's Government here this afternoon—I think that that is a justifiable assumption. The noble and learned Earl, Lord Jowitt, said that in principle he had no objection to this Bill, and certainly it is difficult to know how any person can possibly object to a Bill of this kind. At the same time, of course, it is right and proper to deal with the objections put forward by Lord Llewellin.
In case any noble Lord thinks that this Bill is not necessary, may I say a few words to show that it is? The sport of cockfighting has been illegal for more than one hundred years—since 1835—but it has been found in the course of time a matter of extreme difficulty to collect sufficient evidence to justify prosecution. The cunning and the cleverness with which these cockfights are concealed would surprise your Lordships. But a good deal of data has been obtained 414 about the ruses employed and the decoys that are used on both sides: by the promoters of the fights and also by those who seek to find out about the fights. Both sides have employed decoys and clever ruses either to obtain evidence or to conceal it, as the case may be. There have been six convictions at least in the last twenty-five years, and everyone who has gone into this question is pretty certain that for every conviction obtained there are many other fights where there is no prosecution. It is pretty clearly known, although it cannot be proved, that as recently as 1948 there has been a cockfight and probably there have been others about which nothing whatever is known.
I hope that I have said enough to show that this Bill is necessary in the interests of humanity. I have said that because the noble Lord wants to leave out what I submit is the vital part of this Bill. There is one more point. If this Amendment should be carried, it would prevent the stopping of the preparation of these birds for export. There is little doubt that many birds are prepared not for cockfighting in this country but for cockfighting in other countries. I am sure that no member of this House would wish that to continue; and, if this Amendment is carried, we shall be unable to stop it continuing. For those reasons, amongst many others, I hope that the House will reject this Amendment and be inclined to agree that it would be better to have no Bill at all than this Bill as amended by the noble Lord, Lord Llewellin.
§ 4.21 p.m.
§ LORD SCHUSTER
My Lords, I want to make it quite clear that it does not follow that anybody who has sympathy with the Amendment moved by the noble Lord, Lord Llewellin, is of the opinion that the Bill is unnecessary. From personal knowledge of one case, at least, which I had to investigate officially not many years ago, which not only was very unpleasant in itself but also provided some evidence of the existence of a considerable degree of system in certain parts of the country, I know of the deliberate rearing of birds, the keeping of them for this purpose, and the regular arranging of cockfights. Ever since that case, I have been convinced that such a Bill as this is completely necessary.
But it does not follow that, because it is necessary, this is the best kind of Bill, or that the particular defect at which 415 this Amendment is aimed is one that should be allowed to exist in the Bill. Everybody who knows anything about keeping young cockerels must know perfectly well that they fight, and if they are allowed to be together they fight one another with their spurs. Everybody knows, also, that the only way to prevent them from doing so is to remove the spurs. I think it is dreadful that we should pass a Bill which places people keeping cockerels and fattening them for sale in such a position that, if they remove the spurs—an act which is in itself the main method of preventing cockerels from fighting and killing one another—they are under suspicion of committing the offence of preparing birds for cockfighting. I do not agree that it would be better to have no Bill at all than this Bill as amended by the noble Lord's Amendment. When a Bill like this is introduced, it is the duty of those who are conducting it so to draft it that it avoids the dangers to which the noble Lord, Lord Llewellin, has referred and, at the same time, endeavours to suppress the evil at which it is aimed.
I really do not know whether I have a clear idea of this matter. I have got into such a muddle between the two different proposals that I am not by any means certain what either of them means—but I am certain about this: we cannot mean that the mere removal of spurs or the clipping of the tail feathers shall be, as it were, prima facie evidence of the commission of an offence. If we mean that, we shall violate all the principles on which the criminal law is conducted. We cannot leave matters of that sort to the imagination of or for definition by benches of magistrates. Benches of magistrates must have before them the nature of the offence with which they are asked to deal. It is impossible to leave to the imagination the nature of the offence on which a police officer must rely when instituting a prosecution.
§ 4.24 p.m.
§ LORD AMULREE
My Lords, when I first saw the Amendment that the noble Lord had put down on the Marshalled List I felt extremely sad, because it seemed to me that, if we were to accept an Amendment like that, it would do a great deal of damage to the purpose of the Bill. The Bill which I had the 416 pleasure of introducing to your Lordships' House about a fortnight ago really had two objects: the first was to assist in some way in blocking what was thought to be a loophole in the law, because cock-fighting was made illegal, as your Lordships have been told, in 1835. We know that there is a considerable amount of evidence that cockfighting is still conducted. The police are embarrassed because they cannot find any evidence of where the "main" is to be held, so they are rarely able to institute a prosecution to stop the cockfighting going on. The point of this little Bill was to try to make it simpler to enforce the general Act of 1835.
The second object was really a humanitarian one. It was thought that cockfighting was a bad thing, both for the cocks that indulged in the fighting and also for the people who watched the cockfighting taking place in these "mains." So the object of the Bill was to stop birds being prepared and, at the same time, to see that people did not keep appliances—by which is meant the spurs which are used in cockfighting. The acceptance of only the second object of the Bill—namely, the provision contained in Clause 1 (1) (b)—would. I think, result in our producing a curious little unimportant Bill that it would be hardly worth while putting on the Statute Book. If the noble Lord wishes to press his Amendment, I am not sure whether it would not be better to have this Bill dropped altogether, rather than have a strange little offence put on the Statute Book.
Another point is this. A certain amount of evidence has been accumulated by the Royal Society for the Prevention of Cruelty to Animals showing that cocks are from time to time transported by air to France to indulge in cockfights which we know take place in France. I have here a French paper which has a long article dealing with cockfighting, and gives pictures and photographs of what is obviously a current sport over there. If we are going to make it illegal only to keep spurs, it will be possible for the birds to be transported across the Channel to indulge in fighting over there. I turn to another point which, in my opinion, would be very unfair. If two people are engaged 417 in preparing a cockfight, one person may have the spurs in his possession but may not be the person who actually breeds and keeps the cocks. Whereas the person who has the spurs and is the less guilty party will be proceeded against and convicted, the person who prepares the cocks and conducts the fighting will not be touched at all.
I do not think you can split the objects of this Bill into two, because they are closely interconnected. If the noble Lord, Lord Llewellin, can see his way to withdraw his Amendment, I shall be pleased to accept the Amendment of the noble Lord, Lord Merthyr, because it lays down for the assistance of the magistrates some definition of what the offence is. If the noble Lord, Lord Llewellin, can see his way to withdrawing his first Amendment, I will accept the Amendment in the name of the noble Lord, Lord Merthyr, and we shall have a valuable little measure to go on the Statute Book.
§ 4.28 p.m.
§ THE EARL OF SELKIRK
My Lords, may I explain the Government's position in regard to these Amendments? First, may I repeat that we should like to see this Bill made law, for we think that it is a useful step forward? In regard to the two Amendments which we are considering, we do not think that there is much to choose between them. May I take the two Amendments together? In regard to the Amendment in the name of the noble Lord, Lord Merthyr, there is the danger, which has been stated by the noble Lord, Lord Llewellin, of vexatious prosecution. It might arise. I do not suggest that the probability is very great, because not only have certain functions to be carried out in regard to the fowls, but the birds have also to be prepared for use in fighting. So the probability of vexatious litigation is not very great. At the same time, we think the danger is there and, on balance, the Government would prefer the Amendment moved by the noble Lord, Lord Llewellin. I do not want to press that very strongly. I would mention that if Lord Llewellin's Amendment were accepted it would involve, of course, a slight change in the title of the Bill. I do not think there is any other point that I need make in regard to this matter. If the noble Lord in charge of the Bill thinks that this Amendment will wreck the Bill, that is a 418 matter for him to decide: I will not express any opinion on the point.
§ 4.30 p.m.
§ EARL JOWITT
My Lords, I think I raised this point in the first instance. I really do not care very much one way or another but, on the whole, I prefer Lord Llewellin's Amendment. I think it is the better of the two. This offence is not committed merely by having a domestic fowl "prepared for use in fighting." It becomes a criminal offence only if, having that domestic fowl so prepared, the court is satisfied that you have it in your possession for the purpose of using it in a fight. As a broad general principle I think that, wherever you are defining a new criminal offence, which may entail the penalty of three months' imprisonment, it is desirable to define it, if possible, with great clarity. In dealing, for example, with dangerous driving, it is impossible to set out a definition of dangerous driving. It must depend upon an infinity of circumstances. But if the offence consists of (1) having a domestic fowl prepared for use in fighting and (2) intending to use it for fighting—and both ingredients must subsist—then I think it is desirable to define with clarity what is meant by the phrase "prepared for use in fighting." If the phrase used is "prepared for use in fighting" it is better to set out a definition of what is "prepared for use in fighting," instead of setting out the definition of what is not prepared for use in fighting, which is what has been done here. Lord Merthyr sets out only what is not prepared for fighting. If you are not prepared to define what is "prepared for use in fighting," I should rather limit this Bill to the second part, making it an offence for somebody to have these instruments in his possession if they are destined for use in fighting.
What about this question of sending birds to the Continent? As a broad general rule, we construe an English Statute on the basis that the offence is going to be committed within our jurisdiction. If the bird which is prepared, whatever that may be, is sent over to France with the object of fighting in France, would such a course of action be rendered illegal if we pass it in this form? I am not sure. It really seems to me a very stupid provision, if I may say so. All you have to do, if you are going to have cockfighting in France, is to send the bird 419 over with its spurs and trail feathers uncut and directly you get to France you cut them off; and therefore you have not the slightest effective means of preventing birds from being sent to France to take part in cockfighting. I do not know that they ever have these things for cockfighting in France, but if they do, this provision would not be in the least effective in stopping any such practice. It is completely ineffective for the purpose. It should be made an offence to export the bird to France at all for the purpose of fighting, whatever condition the bird is in, whether the preparation be made either here or in France. I feel that, on the whole, it is better to have Lord Llewellin's Amendment, because the other leaves the matter all so very vague and woolly.
§ 4.37 p.m.
§ LORD LLEWELLIN
My Lords, I am obliged for the way in which the noble and learned Earl who has just spoken, and the noble Earl who spoke for the Government, have received my Amendment. I do not want to make this a nugatory Bill, but it is impossible to carry out a cockfight without having these appliances: they constitute real evidence, that the birds are used for cockfighting. On the other hand, for the most innocent reasons in the world—indeed to prevent birds fighting—a man may remove their spurs. I therefore suggest that we should agree to the Amendment which I have on the Order Paper. If, later, that is not found effective, let someone else come back to Parliament and bring something which lays down the matter far better than it is in the Bill itself or in the Amendment of Lord Merthyr. For that reason, I ask your Lordships to support my Amendment.
§ 4.38 p.m.420
§ I shall not support the noble Lord, Lord Llewellin. He says that he does not wish to make this Bill nugatory, but instances have been given to show that his Amendment would make it nugatory. I do not think that there is any fear of vexatious prosecutions, or of the person being put under suspicion unjustly, for before a prosecution is undertaken, evidence with regard to the particular action generally would have to be produced, not under this Bill but under the Act by which cockfighting is made illegal. All that is said here is that among the matters to be taken into consideration is that the bird has been prepared in a way for it to be used for cockfighting. It would be for the judge or magistrate to decide in any particular case whether that was so or not. Nothing in this Bill says that, because a bird has had its spurs clipped or removed, or its tail feathers clipped, that evidence in itself would be sufficient to secure a conviction. The Bill does not say that, and it appears on the whole that, unless this House wishes, in effect, to reverse its decision in favour of the Second Reading of this Bill, it ought to reject the Amendment which would, in fact, destroy the Bill. Nor is it sufficient to say that the real evidence is the artificial spurs, for, as has been stated, there may be knowledge that one person has the spurs but may not have prepared the fowl or used it. The whole of the facts would have to be taken into account by the court, who would act in accordance with their judgment.
THE LORD CHANCELLOR
The noble and learned Earl, Lord Jowitt, asked me a question. If he will not think me discourteous I will answer it by saying no more than that I agree with it.
§ On Question, Whether the Amendment shall be agreed to?
§ Their Lordships divided: Contents, 26; Not-Contents, 12.421
|Simonds, L (L. Chancellor.)||Hudson, V.||Kilmarnock, L.|
|Stansgate, V.||Llewellin, L. [Teller.]|
|Woolton, L. (L. President.)||Lloyd, L.|
|Calverley, L.||Lucas of Chilworth, L.|
|Buckinghamshire, E. [Teller.]||Ennisdale, L.||Mancroft, L.|
|De La Warr, E.||Fairfax of Cameron, L.||Rochdale, L.|
|Fortescue, E.||Gage, L. (V. Gage.)||Rockley, L.|
|Jowitt, E.||Haden-Guest, L.||Saltoun, L.|
|Munster, E.||Jeffreys, L.||Sandhurst, L.|
|Kershaw, L.||Schuster, L.|
|Samuel, V.||Layton, L.||Rea, L.|
|Mathers, L.||Strabolgi, L.|
|Amulree, L. [Teller.]||Merthyr, L. [Teller.]||Webb-Johnson, L.|
|Bingham, L. (E. Lucan.)||Milner of Leeds, L.||Wise, L.|
On Question, Amendment agreed to.
§ Resolved in the affirmative, and Amendment agreed to accordingly.
Page 1, line 16, leave out ("domestic fowl").—(Lord Llewellin.)
Page 2, line 4, leave out subsection (3).—(Lord Llewellin.)