My Lords, I remind the Committee that, if there is a Division in the Chamber, we will adjourn for 10 minutes from the sound of the Division Bells. I also draw the Committee’s attention to the fact that, on the Marshalled List, there are explanatory statements to some of the amendments. These are included as part of a trial of their use and they have no procedural impact, lest anybody should be in any doubt.
Clause 1: Sale of corrosive products to persons under 18
1: Clause 1, page 1, line 4, at end insert “without, in the case of a person charged in England and Wales or Northern Ireland (subject to section 2), having taken all reasonable precautions and exercised all due diligence to avoid the commission of the offence”
Member’s explanatory statement
This amendment, alongside the amendment to page 1, line 5, would make a failure to take precautions or exercise diligence criteria for the offence, as distinct from defences which would come into play only after the person had been charged.
My Lords, in moving Amendment 1, I will speak to the other amendments in the group in my name and that of my noble friend Lady Hamwee. These amendments seek to change the offences in the Bill from those where there is a reasonable excuse defence only when charged to ones where, if someone has a reasonable excuse, they do not commit an offence. They seek consistency in approach between legislation where no offence is committed if someone has an offensive weapon in a public place because they have a reasonable excuse and legislation where, in exactly the same circumstances, a person does commit an offence and has to rely on a defence only once they have been charged. The amendments also seek consistency between offences where the burden lies on the prosecution to disprove a reasonable excuse defence and offences where the burden lies on the accused to prove beyond reasonable doubt that they have a reasonable excuse.
We return to an issue that I raised in discussion of the Counter-Terrorism and Border Security Bill and which is applicable here; namely, creating offences where a completely innocent person commits an offence and has to rely on a defence once charged, rather than someone with a reasonable excuse for his actions not being guilty of an offence in the first place. In the context of the Counter-Terrorism and Border Security Bill, the Government acknowledged this problem in relation to the designated areas offence. In that Bill, the Government accepted that, rather than a person entering a designated area and having a defence once charged if they had good reason to be there, if they entered or remained in a designated area involuntarily or for a range of other reasons stipulated in the Bill, they did not commit an offence. The Government accepted that there could be legitimate reasons for visiting or remaining in a designated area and that it was more sensible to say that no offence was committed if they had good reason, rather than that they committed an offence but had a defence once charged.
Not being familiar with police procedures, to me the essence of the argument seems to be about when the defence is deployed. Can the noble Lord explain what that means in practical terms?
My Lords, when the police are told that the offence is not committed if somebody has a reasonable excuse, the clear message sent to them is that they need to investigate the matter there and then to establish whether that reasonable excuse exists. If a Bill, as in this case, says that somebody who carries a corrosive substance in a public place commits an offence, it sends a message to the police that investigation of any reasonable excuse that the person may have can wait until later because, according to the legislation, the defence is available only once the person has been charged.
Lord Judge (CB)
My Lords, I support the Bill. The issue of the misuse of corrosive substances and all other kinds of offensive weapons is too obviously something that has to be addressed. However, I want to raise an issue which is troublesome in the context of the amendment.
Unless an offence is absolute—and we take a strong stand against absolute offences—it is a long-standing principle of criminal justice that you are liable to conviction and sentence, or to go back earlier, to be arrested and charged if you have done something or acted in a way prohibited by the law. Fine—but the proviso to that is, “Provided that simultaneously your state of mind was itself similarly criminal”. You may have done it intentionally or recklessly. There are all sorts of ways in which your state of mind can be identified as criminal but it is of the essence that these two concepts stand or fall together.
This statute asserts that, where certain facts are proved, you have committed an offence—full stop. Without reference to your state of mind or any other circumstance, the offence is established and you are therefore liable to be arrested. It then says, “We shall graciously allow that, in certain circumstances, you may have a defence”, and if you prove them you would have a defence. Perhaps the most gracious of all the circumstances is to be found in Clause 2(6) to (9), where a whole series of them have to be established. You then have a defence, but you have been arrested and may have been charged. Nobody has to examine these two concepts together and say, “The evidence shows that he had a guilty mind”, or “He was reckless”, or whatever it might be.
What I really want to raise in Committee is that we should stick to the normal principles that have worked well for us: you are not guilty of anything and have not committed an offence unless your mental state was simultaneously as criminal as the actions you committed. That is what we believe. I do not want to be overportentous; I cannot see the Minister making any concessions about this. However, I would like to put down a marker. This way of legislating for criminal justice is inappropriate and we should avoid it. We should certainly be very careful not to allow it to happen without us spotting it and stopping it.
3:45 pm
The Earl of Listowel (CB)
My Lords, listening to the debate and the presentation of the amendment, I wonder how the amendments might protect the important relationships between young people and the police—maybe particularly between young people from ethnic minorities and the police. I can see that if the authorities have to do more work before they can detain a young person or take them to a police station, it might prevent trouble between the police and young people. My sense—and I am sure we will discuss this further on—is that one of the reasons young people carry knives is because they distrust the police and do not feel that authorities are there to protect them. The amendment may be helpful in engendering more confidence in the police—and indeed the authorities—among young people, particularly those from minority-ethnic communities, and help to make it less likely that young people will carry knives. I would be interested to hear the view of the noble Lord, Lord Paddick, on that, from his experience on the beat, if he has time towards the end of this discussion.
My Lords, the Opposition are generally in favour of this Bill, but I find the arguments of the noble Lord, Lord Paddick, somewhat persuasive. I particularly like the way the noble and learned Lord, Lord Judge, put things in the general perspective of law. Even little deviations from sound general principles are a bad thing, so I hope the Minister will not reject this out of hand but will ponder this set of amendments. The only area I am slightly unsure about—the noble Lord, Lord Paddick, or the Minister may want to address this—is the argument that the defence has to be proved beyond reasonable doubt. My understanding was that there was a general piece of law that said that defences have to be proved only on balance of probability. It is important to know which of those tests the defence has to meet.
My Lords, I thank noble Lords for their points and the noble Lord, Lord Paddick, for tabling these amendments. As he explained, they address the construction of the new offences relating to the sale of corrosive products to under-18s, the prohibition on sending corrosive products to residential premises when bought online and the possession of a corrosive substance in a public place. The noble Lord’s basic premise is that it is unjust that a person who took all reasonable precautions and exercised all due diligence to avoid committing the sale or delivery should be guilty of the offence, rather than having to rely on the permitted defence to establish his or her innocence. The same principled objection applies to the possession offence and the person who has a reasonable excuse for having a corrosive substance with them in a public place.
As the noble Lord, Lord Paddick, said, this has echoes of the recent debates we had on the Counter-Terrorism and Border Security Bill. However, as my noble friend Lord Howe indicated in that context, we are not persuaded that whichever way these offences are constructed will make much material difference to a suspect or how the police go about an investigation.
In relation to the sale offence and the offence of sending corrosive products to a residential premises, I think it is quite right that it should be for the seller to prove that they took reasonable precautions to avoid the commission of these offences. The seller will clearly know what checks they carried out to stop a sale to a person under the age of 18. In the shop context, they will know whether they asked the buyer in appropriate cases to verify their age, which will normally consist of asking them to produce a passport, a driving licence or an age proof card. In the online case, it is important that the seller has put in place some arrangement for checking the buyer’s age. Clearly where a seller has shown that they have verified age, no prosecution will take place.
This might have been dealt with before and I apologise if it has, but is a farmhouse a residential address? Farmers would certainly receive all sorts of corrosive products.
Could I assist the Committee? We will return to the problems of not allowing corrosive substances to be delivered to any residential address in an upcoming group. It might be more appropriate to discuss that matter then, if that assists the noble Earl.
I am very grateful to all noble Lords who have contributed to this short debate, particularly the noble and learned Lord, Lord Judge. It is interesting that the Minister seems to have ignored the inconsistency in approach between the Prevention of Crime Act 1953, the Criminal Justice Act 1988 and the Bill. In the Prevention of Crime Act, which is a piece of legislation specifically dealing with offensive weapons, you do not commit an offence if you have a reasonable excuse, which is inconsistent with the Criminal Justice Act and the Bill. The Minister says, “We worded it this way for things to be consistent”. It is not consistent.
On the point from the noble Earl, Lord Listowel, I do not want to get into the disproportionality of stop and search. What I would say is that I envisage certain circumstances where a 19-year-old young man who has a corrosive substance in their pocket, because that is the only thing they were sent out to the shop for, is stopped by the police very easily leading to arrest if the offence is worded in the way it is, whereas a police officer might be given cause to think twice if it were worded in the way I suggested it should be changed. The Minister and her officials are on slightly dodgy ground in suggesting to me what makes a practical difference to a police officer on the street or not about the way they implement the law.
That will give an indication that we are likely to return to this matter at the next stage. However, at this juncture, I beg leave to withdraw the amendment.
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In one part of the Counter-Terrorism and Border Security Bill, the person does not commit an offence if they had good reason yet, in another part, a person has a defence once charged—a different approach in different parts of the same Bill. It is still a Bill, I think, and has not yet received Royal Assent—I am getting nods from the back, so that is good.
In Clause 1 of this Bill, a person commits an offence if they sell a corrosive product to a person who is under the age of 18. They have a defence, if charged, by proving that they took all reasonable precautions and exercised all due diligence to avoid the commission of an offence, rather than it saying, “They do not commit an offence if they act reasonably”. In Clause 3, a person commits an offence if he delivers the corrosive product or arranges its delivery to residential premises. They too have a defence, if charged, if they prove that they took all reasonable precautions and exercised all due diligence to avoid the commission of an offence, rather than it saying that if they act reasonably, they do not commit an offence. There is also an issue with Clause 4, but it slipped through the net and therefore there is no amendment in this group to address it.
In Clause 6, however, a person commits an offence if they have a corrosive substance with them in a public place. It is a defensive charge if they prove that they had good reason or lawful authority for having the corrosive substance with them in a public place, rather than the provision being that if they had good reason or lawful authority, they do not commit an offence. It will perhaps be clearer if I concentrate on the latter of these three offences.
If a 19-year-old young man has a corrosive substance with them in a public place with the intention of using it to attack someone else, they commit an offence under the Prevention of Crime Act 1953 of having an offensive weapon with them in a public place with the intention of causing injury to someone. It is an intended offensive weapon. However, if they have been sent out by their mother to buy drain cleaner in a squeezable bottle to unblock the kitchen sink—I speak with some experience having recently cleared one of my drains; drain cleaner does come in squeezable bottles—they do not commit an offence under the 1953 Act. They have a corrosive liquid with them in a public place, in a squeezable bottle that could be used to cause injury to someone, but have a reasonable excuse for possessing it. Were the police to stop and search the youngster, a quick phone call to the mother could establish the reasonable excuse.
Under the Bill, the 19 year-old running the errand for his mother commits a criminal offence because, under Clause 6(1):
“A person commits an offence if they have a corrosive substance with them in a public place”.
Under Clause 6(2), it is a defence for the youngster charged with an offence under subsection (1) to,
“prove that they had good reason or lawful authority for having the corrosive substance with them in a public place”,
but a police officer would be justified in arresting the youngster, because he is clearly committing a criminal offence.
When discussing the Counter-Terrorism and Border Security Bill, we also debated the principle of necessity in relation to arrests. One of the circumstances included in the reasons why an arrest might be necessary under Section 110 of the Serious Organised Crime and Police Act 2005 is to allow,
“the prompt and effective investigation of the offence or of the conduct of the person in question”.
It would be quite easy for a police officer to reason that the quickest and easiest way to determine whether the young man has a blocked drain is to arrest him and take him to his home address, to see whether the kitchen sink is blocked.
I am sure that the Minister will say that of course the police will act reasonably, but the police do not always act reasonably. Believe me, from 30 years’ experience in the police service, including four years as a bobby on the beat, I can say that sometimes police officers look for any reason to arrest someone. For those who might argue that my experience is not current, I point out that if you own a drone, live within a short distance of Gatwick Airport and have suspicious neighbours, apparently you can end up being arrested even when you can easily prove that you were miles away at work at the time the offence was committed.
There is another anomaly. In the Counter-Terrorism and Border Security Bill, in offences that remain of the “defence when charged” type, the burden is on the prosecution to disprove the reasonable excuse defence put forward by the accused, and to do so beyond reasonable doubt. Section 118 of the Terrorism Act 2000 states:
“If the person adduces evidence which is sufficient to raise an issue with respect to the matter the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not”.
Indeed, in Clause 3(10) of this Bill we find a similar provision, except that it applies only in Scotland. South of the border, not only is it only a defence once charged—as in subsection (8)—but the person charged has to,
“prove that they took all reasonable precautions and exercised all due diligence to avoid the commission of the offence”,
presumably beyond reasonable doubt. Noble Lords will recall that Section 118 of the Terrorism Act saved the Government from the accusation of reversing the burden of proof but, in these offences, the burden of proof is on the accused, presumably to the criminal standard of beyond reasonable doubt, that they have a reasonable excuse. Why is the burden of proof reversed in this Bill, except in Scotland, but not in the Counter-Terrorism and Border Security Bill, which passed through this House only recently?
Sending a message to the police that an offence is not committed if someone has lawful authority or reasonable excuse is preferable to saying that an offence is committed and that there is a defence once charged. Sending a message that you have nothing to fear by buying corrosive substances for illegitimate purposes and carrying the substance home through the streets or to a place of work is preferable to saying: “You are committing an offence and have to prove to a jury beyond reasonable doubt that you did so innocently”. The principle adopted in Section 1 of the Prevention of Crime Act 1953, which deals with offensive weapons, is that you are innocent if you have a reasonable excuse. That legislation has not been repealed, nor have the Government sought to amend it. That is the principle adopted by the Government in recent weeks in relation to an offence under the Counter-Terrorism and Border Security Bill, and it is the principle that the Government should adopt in this Bill. I beg to move—
In answer to the question asked by the noble and learned Lord, Lord Judge, about the normal principles of criminal law, the Bill reflects knife crime legalisation going back at least to the Criminal Justice Act 1988. His point about consistency is important, but I can point to other examples in other areas of law.
Going back to sellers, it is important that they take responsibility in this area and it is right that they have to prove what checks they have made rather than placing the burden on the prosecution. That is what happens in relation to other age-related sales, such as knives, alcohol and tobacco, and the approach is well understood by retailers, trading standards and the police.
Similarly, with the offence on arranging delivery to a residential premises or locker when a corrosive product is bought online, it should be for the seller to ensure that they are not sending the product to a residential address and to make sure they have the appropriate checks in place to stop this happening. The seller should be able to do this easily, and I can see no benefit in placing the burden on the prosecution to prove that the seller made the appropriate checks.
In the possession offence, as I have said before—for example, on the Counter-Terrorism and Border Security Bill—the police on the ground will use intelligence to decide whether someone may be in possession of a corrosive substance without good reason. They will not stop people coming out of B&Q with their cleaning products and question them, just as they do not stop people coming out of B&Q with garden shears and scissors. The police will use this power only where they have reasonable grounds for suspecting the person has a corrosive substance on them in a public place without good reason—for example, where a group of young people may be carrying a corrosive that has been decanted into another container. Establishing good reason on the street should be relatively easy. If a person can show they have just bought the cleaner and are taking it home to unblock their drains or that they are a plumber and need the substance as part of their work, good reason will have been established and no further action would be taken. It is only where a person cannot provide a good reason—for example, for why they have decanted the substance into another container that will make it more easily squirtable, or where they cannot say where they bought the substance or what they intend to use it for—that further action may be taken, and in this case it is quite right that the person should have to set out any good reason why they had the substance in a public place.
That aside, and returning to the point made by the noble and learned Lord, Lord Judge, it is important that we have consistency across similar offences. I have just explained the sale and possession of knives. We think that corrosives have the potential to be used as a weapon just as much as knives and that wherever possible the legislation dealing with the two should be consistent. Both corrosives and knives are widely available and have legitimate uses—they are not in and of themselves weapons—and to have a different approach for corrosives would suggest that they are somehow less of a threat as a weapon.
Retailers are familiar with the existing law relating to the sale of other age-related products and know what measures they need to put in place to ensure they comply with the law. It could be confusing to retailers if we now constructed these offences differently. The police are also familiar with the approach relating to possession and we are not aware that the good reason defence has caused any issues regarding possession of a bladed article in a public place.
On the question from the noble Lord, Lord Tunnicliffe, on the standard of proof, I can confirm that if a defence is raised, the defendant has only to prove that the defence is made out on the balance of probabilities. There was a question on Scotland: obviously it has a separate legal jurisdiction with its own sentencing framework. The Bill’s provisions work with the grain of the existing sentencing provisions. For example, the maximum penalty on summary conviction is 12 months in Scotland, but only six months in England and Wales. The same is true for the burden of proof, where the Bill reflects existing Scots law.
I appreciate noble Lords’ concerns but, as I said, the approach we have taken is to follow a well-precedented form for offences relating to other age-restricted goods. If we reconstructed the sales and delivery offences for corrosive products we would be creating a different legislative regime from other age-restricted products, such as for knives. I am therefore not persuaded that we need to change the construction of the new offences. With those words, I hope that the noble Lord, Lord Paddick, will be content to withdraw his amendment.