HL Deb 03 July 1990 vol 520 cc2075-84

6.46 p.m.

Read a third time.

Clause 1 [Causing or permitting child under 14 to ride on road without protective headgear]:

Lord Airedale moved Amendment No. 1:

Page 1, line 9, at end insert: ("( ) Where a person is charged with an offence under this section, it shall be a defence for him to prove—

  1. (a) that he exercised all due diligence to avoid the commission of such an offence; or
  2. (b) that he had no reason to suspect that the child was under 14.").

The noble Lord said: My Lords, some of us have been over this course twice and some only once. For the benefit of those noble Lords who have not been over it at all I shall explain the matter shortly.

Persons who keep riding establishments will be faced from time to time with situations similar to those which occupy the minds of licensees of public houses who have the familiar task of having to decide about a young person's age. This amendment is lifted bodily out of the Licensing Act 1988, with simply the substitution of the age of 14 for the age of 18.

From time to time a licensee is faced with a young person arriving at the door. He has to determine on such evidence as is available whether he is or is not over the age of 18. There is of course the physical appearance of the young person to go on; there is anything that he may say; whether he seems to be speaking the truth; whether there is an older person with him; and anything that the older person may say. Upon that evidence, which is perhaps somewhat scanty, the licensee has to make an on-the-spot decision. He is on something of a tightrope. On the one hand, he does not want to commit a criminal offence. But on the other hand, he does not want to exclude from his public house a young person who has just attained the right age and wishes to enjoy attending a public house. He makes a decision on the spot.

Licensees are responsible, experienced people and it is a familiar problem. I expect that the licensee gets it right nearly every time, but just occasionally, in the course of a long lifetime, he is bound to get it wrong. Parliament, having considered carefully the 1988 Licensing Act, has said that where the licensee gets it wrong, if he has acted with due diligence and done his best, he shall not automatically be guilty of a criminal offence. The defence shall be available to him and, of course, the onus is upon him to prove it. I hope that the riding establishment proprietor, being placed in very similar circumstances, will be allowed the same defence as is open to the licensee.

Parliament considered the Licensing Act a good deal more closely than Parliament has managed to give attention to this Private Member's Bill in covering rather limited activities. I do not think that Parliament favours creating statutory offences with strict liability and no defence available, however diligently the accused person has been behaving. You can only expect people to do their best and not make criminals of them if they make a mistake. I hope therefore that the noble Baroness will accept that this is a proper amendment to go into the Bill. A similar amendment was very strongly supported on Report. I hope that we can have this defence in this Bill. I beg to move.

Viscount Mountgarret

My Lords, I am sorry but I do not think I can support the noble Lord, Lord Airedale, in the amendment that he proposes, for two very good reasons. The first is that the words in the Bill to which the amendment applies firmly state, to cause or permit a child under the age of 14 years to ride without headgear. If a person causes or permits that to happen, he is not exercising all due diligence. If, on the other hand, he exercises all due diligence to avoid committing an offence, then he has not caused or permitted. Therefore ipso facto these words have to be somewhat surplus to requirements. On that basis alone, we ought not to accept the amendment.

As to the licensing laws, there is a world of difference between the bar of a pub and a pony club, riding stable and so on. The bartender is very hard-pressed, handing out drinks to all and sundry. I agree with the noble Lord that many young people can well be taken for being substantially older than they might be. But if the owner or the person in charge of a horse does not know a young person sufficiently well to have a fair idea of his or her age, then that person is not being very diligent and ought not to be in the business of lending or hiring out horses. In any event, if a young person wanted to ride any of my horses, I could not care tuppence whether he was 14, 15, 16 or any other age. I would say, "You wear a hat before you go riding." I hope that your Lordships will not accept the amendment.

The Earl of Erroll

My Lords, to counter the noble Viscount, Lord Mountgarret, I would briefly say that we do not yet carry identity cards in this country. It has been suggested for various classes of citizens from time to time, but we do not. It is therefore impossible to prove someone's age. If children take home a friend from school, what is one supposed to do? There may not be parents at the other end of the telephone. How much checking up are you supposed to do? If a child tells a lie, is that still no defence

If the amendment is refused then, because an absolute offence is created under this subsection, I should have thought that the person in charge of the horse at the time must be guilty of an offence, even if the child lied to that person about his age.

Lord Willoughby de Broke

My Lords, we are talking about the safety of children. I should have thought it possible to produce some sort of identification that would prove their age without going to the length of carrying identification cards, a copy of a birth certificate or something of that nature. As my noble friend Lord Mountgarret said, we are not talking about a swig of cherry brandy in a pub, but about the danger to the life and brain of a child. It should be for the riding academy to ascertain whether the child is 14, or for the parent to establish that. I hope that the amendment will not be carried.

Lord Monson

My Lords, before the noble Lord sits down, is he seriously suggesting that every child who gees out riding should carry a birth certificate?

Lord Willoughby de Broke

My Lords, I was simply saying that it was one possible method. I am not saying that it should be necessary every time they go out. There must be a way of establishing the age of a child.

Viscount Allenby of Megiddo

My Lords, we need to take this matter very seriously. We are dealing with animals which have character and personality. Some can be very cantankerous, particularly Shetland ponies and children under 14 are unpredictable. On the whole, the riding community is very close-knit. You do not allow people to ride your horses unless you know that they are able and capable of riding, and unless you believe that they are sensible.

I agree with the noble Viscount, Lord Mountgarret. I would not let my horse out of the stable with an absolute lunatic, unless I was certain that that person would keep a hat on his head and done up. It is absolutely wrong to break the Bill in the way that the noble Lord wants us to do. If we allow this, it will drive a coach and horses through the Bill and make it totally unworkable. I totally oppose the amendment.

Baroness Nicol

My Lords, all the arguments against the amendment have been very clearly made on both sides of the House. I wish to add one small point. If we were to make this amendment, the next one, or the one after that, to the Bill, its chances of surviving in the Commons would be nil. I understand that the time allowed for the Bill is very limited, and that if we put forward arguable amendments of this kind it will be talked out in the other place. Therefore, we need to know that the amendment we are passing is absolutely essential. I do not believe that this amendment falls into that category.

Baroness Masham of Ilton

My Lords, some of your Lordships may know that the Bill as printed on 8th January included a defence of due diligence. It was decided in another place to remove that clause as it was unnecessary. An attempt was made at some time to introduce an amendment with the same effect. It was not accepted, but the Minister responsible for roads and traffic agreed to re-examine it and to arrange for its reintroduction in your Lordships' House if necessary.

Present advice is that it is still quite unnecessary. Any adult who has exercised all due diligence to avoid the commission of an offence under the Bill cannot be convicted of causing or permitting. I hoped that I had explained why the words "cause or permit" are used in this Bill at the early stages. Clearly I must go over the same ground again in more detail, so that those noble Lords who still do not understand their significance have another chance to do so. I apologise to those noble Lords who already understand them; I hope that they will bear with me.

"Permitting" necessarily involves some mental requirement in relation to the child's use of the horse. A person does not cause or permit an action which it is out of his power to prevent. It was held in Grays Haulage & Co. Ltd. v. Arnold that a person cannot be convicted or committed on the basis that he has failed to take certain steps that he might have taken which would or might have prevented a driver of a vehicle from acting unlawfully. Thus, as in order to secure a conviction it would have to be shown that the person had caused or permitted a child to ride a horse knowing that he would be riding it on a road without the appropriate headgear, and as that could not be established merely by showing that sufficient action had not been taken to prevent it, I am advised that there was no room for that kind of defence.

Once a child is out of an adult's control and on a road and he decides to unfasten or take off his hat, he could not be said to be permitted to do so by an adult. It was also established in Newbury v. Davis that permission given subject to a condition which is unfulfilled is no permission at all. If a child is permitted to ride on a road provided that he wears his hat and disobeys, again he has not received permission to do so.

I cannot think of any other way to explain why this defence is unnecessary. Effectively the clause states that it is a valid defence to a charge of permitting a child to ride to prove that you did not permit it. My noble friend Lord Monson said at Report stage of his amendments in Committee that their central purpose was to protect from persecution parents, de facto guardians and owners of horses and ponies who are not parents or guardians in cases where children, in particular older children, had, for example, undone their chin staps without the older person's knowledge or consent. I hope that the noble Lord, Lord Airedale, has followed my speech sufficiently to see that no one can be convicted when the child has undone the chin strap without his or her knowledge or consent.

I should now like to address the second part of the amendment. The noble Lord, Lord Airedale, is trying to put forward a similar defence to the one that he tried during the Committee stage. The noble Lord's parallel with the Licensing Act is inappropriate because the offence in that Act is absolute. If a child under 14 is in a bar, the licensee is guilty. It is therefore appropriate for the law to enshrine defences. This Bill does not create an absolute offence. The presence of a child riding hatless on a highway is not evidence that an offence has been committed. The offence has occurred only if the adult has caused or permitted the child to do so. Since "permit" is not absolute, a statutory defence is not needed. I urge the noble Lord to withdraw his amendment.

Viscount Davidson

My Lords, with the leave of the House, the noble Lord, Lord Airedale, asked me specifically to make a considered reply if he were to put down this amendment on Third Reading. I am now prepared to do that.

As the noble Baroness, Lady Masham of Ilton, indicated, the arguments were gone over at some length both in another place and in the Department of Transport. The words "cause or permit" are very common in road traffic legislation, appearing, for example, in Sections 22, 27, 32, 42, 47, 53, 63, 71, 76, 87 and 143 of the Road Traffic Act 1988. They deal with offences concerning such diverse things as leaving vehicles in dangerous positions, control of dogs on roads, electrically-assisted pedal cycles, construction and use of vehicles, obligatory test and approval certificates, unfit or overloaded vehicles, fitting and supply of defective or unsuitable vehicle parts, driving licences and vehicle insurance. None has a due diligence defence as it is unnecessary. It is equally unnecessary in this Bill. I for one am not in favour of unnecessary clauses being inserted into legislation. If someone exercises due diligence to prevent an offence, he cannot be convicted of permitting it.

Lord Airedale

My Lords, the noble Viscount, Lord Mountgarret, does not want anyone to ride on the road without wearing protective headgear, whatever age. Most noble Lords would agree with that proposition. If the noble Viscount had put down an amendment to that effect, it might have been carried. I am sure that the noble Baroness does not want anyone to ride on the road without wearing a helmet. Does the noble Viscount want to say something?

Viscount Mountgarret

My Lords, I thank the noble Lord. I simply wanted to say that I did that very thing at Committee stage.

Lord Airedale

My Lords, the noble Baroness, Lady Nicol, is not in favour of the amendment. She produced the familiar argument that, if the Bill has to go back to the Commons and be amended, it may be lost. However, I understand that it must go back to the Commons because I gather that the noble Baroness, Lady Masham of Ilton, will shortly move an amendment which I expect she hopes will be carried. The Bill will then have to go back to another place and be considered again.

We then had a most learned discourse from the noble Baroness citing cases from the law reports, but the matter is very simple. If a riding stable permits a child who is under 14 to ride upon the road not wearing protective headgear, that is the offence in the Bill. There is no question about that. The defence which the licensee enjoys does not apply to that case. There is no need for a learned discourse about that. It is absolutely straightforward. If the child is under 14, whatever the riding establishment might think the child's age is, and is riding on the road without a helmet, the proprietor is guilty of an offence—an absolute offence to which there is no defence under the Bill.

That is not a satisfactory situation. The riding establishment should have the protection that the licensee has—that, if a mistake is made, in good faith, after due diligence, that should be a good defence. We do not want people made criminals who do their best to exercise all due diligence. Parliament does not like doing that kind of thing. We should take the opinion of the House on this matter.

On Question, amendment negatived.

Lord Monson moved Amendment No. 2:

Page 1, line 25, at end insert: ("(3) It is a defence to a charge of committing an offence under this section to prove—

  1. (a) that the accused was owner of the horse.
  2. 2081
  3. (b) that he neither had custody of nor was in possession of the horse immediately before the child rode it, and
  4. (c) that he neither knew nor had reasonable grounds to believe that a child under the age of 14 years would ride the horse on a road without wearing protective headgear, of such description as may be specified in regulations, in such manner as may be so specified.").

The noble Lord said: My Lords, in moving Amendment No. 1, the noble Lord, Lord Airedale, with his great legal experience, warned the House of the undesirability of creating new absolute offences, a sentiment with which I most certainly agree. This amendment is different from his and rather more closely targeted upon a particular group which may be at risk—not of persecution, as my noble friend Lady Masham erroneously said—but of prosecution, although the two might go hand in hand.

Noble Lords will remember that at both Committee and Report stages we discussed the problem of what might be termed absentee owners who might face prosecution under the Bill even when they were 10, 100 or 1,000 miles away when the horse or pony in question was ridden. A considerable number of noble Lords felt that it was a great problem, including—and this is important to remember—noble Lords who were otherwise strongly in favour of the Bill.

My noble friend Lady Masham told us in Committee that parliamentary counsel had recommended the present wording, for the sake of clarity", and, in order to avoid misunderstandings", but, with respect, to include absentee owners as the Bill does obscures rather than clarifies and opens the way to misunderstanding rather than obviates it. At one of the earlier stages, the noble Lord, Lord Mancroft, who I am sorry cannot be here tonight because he probably misjudged the time as many of us did, explained to us with his great experience of matters equestrian that the majority of ponies at pony camps are borrowed. He added: If the owner of the pony is liable for the safety of the child on that pony when the child and the pony are no longer in the owner's care, he or she will not lend the pony. As a result good children's ponies will be restricted to their original owners and other children will not have the chance to ride them … That would be sad. If I were the owner of a pony I would not send it elsewhere if I could be liable".—[Official Report, 20/6/90; col. 984.]

To some extent the noble Lord, Lord Mancroft, was speculating as to what other owners might do. He was speaking of his own experiences. Since then he has revealed to me, most significantly, that he has been told categorically by a number of owners that unless some safeguard is written into the Bill those owners will not longer lend their ponies or horses, to the great inconvenience of a large number of children.

My noble friend Lady Masham said: I do not think that, if he has done his best, the owner should be liable".—[Official Report, 20/6/90; col. 989.] Those are admirable sentiments, but unless this protective amendment is agreed to, there is no guarantee that the owner who has done his best might not occasionally face prosecution. Hence this defence amendment, for which there are many precedents, from the Public Order Act 1936 to the Video Recordings Act 1984. The noble Viscount, Lord Ullswater, speaking for the Government, told us: In the case in which the owner has given permission for his horse to be ridden in his absence … he must have had a reasonable expectation that the person to whom he gave permission would abide by the law".—[Official Report. 20/6/90; col. 9881]

The amendment makes it clear beyond doubt that provided the owner has that reasonable expectation he is in no danger of prosecution. I beg to move.

7.15 p.m.

Baroness Masham of Ilton

My Lords, the amendment goes over the ground that we covered in Committee and on Report. It may be too much to hope that my arguments on the amendment moved by the noble Lord, Lord Airedale, have made my noble friend Lord Monson realise that this defence is also unnecessary because of the use of the words "cause or permit". Let me repeat what I said earlier. Permitting necessarily involves some mental requirement in relation to the child's use of the horse. A person does not cause or permit an action which it is out of his power to prevent, whether or not he has custody of his horse at the time.

If a horse owner does not know that a child has ridden the horse unprotected, he cannot be said to have permitted him to do so. My noble friends Lord Monson and Lord Erroll referred at earlier stages to the case of the lady whose premises were used for cannabis smoking without her knowledge (Sweet v. Parsley). In the light of what the courts have held about the word "permit" in that case and in the case of R. v. Salter, my advisers consider that horse owners whose horses are used by children without protective headgear properly worn cannot be convicted unless they knew that the horse was going to be so used.

I appreciate that my noble friend Lord Monson does not want to see someone who has done no wrong prosecuted. I do not want to see anyone prosecuted, because that would mean that a child had been put at risk or injured. No adult who has used his best endeavours to ensure that a child is protected or who has no knowledge of what the child is doing can be convicted, because it will be clear to the court that he has not given the child his permission to ride unprotected. Therefore, I hope that my noble friend will withdraw the amendment.

Lord Monson

My Lords, my noble friend said that we were going over the same ground again. That is not correct because the amendment is more finely targeted; it is a compromise and it has many precedents. It avoids the defects of the amendments on the same basic subject that I moved at earlier stages. I am to some extent heartened by the legal advice that my noble friend has obtained from the department on the precise meaning of the word "permit": but the word is ambiguous. One can permit both actively and passively. I am not 100 per cent. certain that she or her advisers are necessarily right on this point.

Furthermore, I am afraid that the noble Baroness has failed to address the problem which was highlighted by the noble Lord, Lord Mancroft: that many owners will be frightened off by the Bill as it stands, and have already indicated that they will no longer lend their horses or ponies unless an amendment such as the one I propose is included in the Bill. That of course is a problem for those with children under the age of 14. I no longer have. I was tempted to test the opinion of the House on this matter, but, as we tested the opinion of the House on the amendment moved by the noble Lord, Lord Airedale, I can only beg leave to withdraw the amendment and hope that my noble friend's confidence that no one will be unjustly prosecuted is justifed.

Amendment, by leave, withdrawn.

Baroness Masham of Ilton moved Amendment No. 3:

Page 2, line 22, leave out from ("includes") to end of line 23 and insert ("pony, mule, donkey or other equine animal").

The noble Baroness said: My Lords, I suggested on Report that I would introduce this amendment, which appeared to be acceptable to your Lordships. I hope that it still is. I am grateful to the noble Lord, Lord Stoddart, for drawing my attention to the definition in the Farriers (Registration) Act 1975, which provides a neater and more comprehensive definition of "horse" than the previous definition, which was based on that in the Riding Establishments Act 1964. The new definition will also encompass zebras, as my noble friend Lord Monson wanted on Report. I beg to move.

Lord Kilbracken

My Lords, I should like to make a couple of points about which I am afraid I have not warned the noble Baroness, because I have only just noticed them. First, I am not sure whether she means to leave out the word "any" in line 22 which she is doing. She did not refer to that change in her remarks. As proposed, the passage would read, "'horse' includes pony, mule", which is not the usual wording of such a clause.

Secondly, I am normally all in favour of replacing 15 words by six, but I wonder why the noble Baroness could not have gone the whole hog and merely said, "horse includes any equine animal". However, in view of the point made by my noble friend Lady Nicol and that to date the Bill is unamended and would therefore not have to return to the other place, as well as of the fact that the present wording is clear—people do not often ride zebras—I propose that it is far better to leave the wording as it stands at present.

Lord Monson

My Lords, I take a different line from that of the noble Lord, Lord Kilbracken. I congratulate my noble friend on her skill in finding such a neat solution to the potential problems that we discussed at Report stage. Assuming that the amendment is agreed to, no longer will children under 14 be permitted to ride zebras on a road without suitable headgear, any more than they will be permitted to ride hinnies, asses or foals on a road.

My noble friend and the Government clearly think that one cannot be too careful in this matter. If every conceivable contingency, however unlikely, is to be provided for, it is only logical that zebras should be included.

Lord Addington

My Lords, as we have discussed on previous stages of the Bill, it is right that we should have the widest possible definition of the animals concerned. Since the amendment specifies "equine animal" we have covered all the possibilities. We therefore believe that it is a good amendment.

Baroness Masham of Ilton

My Lords, to answer the question from the noble Lord, Lord Kilbracken, about the word "any", the provision still makes sense without it. I commend the amendment.

On Question, amendment agreed to.

Baroness Masham of Ilton

My Lords, I beg to move, That this Bill do now pass.

Moved, That the Bill do now pass.—(Baroness Masham of Ilton.)

On Question, Bill passed, and returned to the Commons with amendments.