Cultural Property (Armed Conflicts) Bill [Lords]

Debate between Lord Garnier and Victoria Prentis

2nd reading: House of Commons & Programme motion: House of Commons
Monday 31st October 2016 Commons Chamber

[Sir Edward Garnier]

East Jerusalem—they were designated as occupied territories. However, the world has moved on and, as my right hon. Friend correctly pointed out, there are now other parts of the world that could, either as a matter of fact or as a matter of law, be considered occupied territories. The Government must be more open, or at least clearer, about the definition of an occupied territory.

There is, however, perhaps an even more important matter that needs resolving, which involves the level of criminal intent for the offences described in clause 17. In framing my remarks, I am grateful for the help I have had from the British Art Market Federation, the British Antique Dealers’ Association, Mr Hugo Keith QC, and Professor Janet Ulph of the University of Leicester school of law. I stress, however, that what I shall say is my interpretation. If I have got things wrong, that is my fault and not the fault of those who valiantly tried to explain the matter to me. You will be glad to hear, Mr Speaker, that I cannot for reasons of time go into the detailed legal analysis undertaken by them, but I sent the Secretary of State a copy of Mr Keith’s opinion, which carefully explains why the use of “reason to suspect” in the context of this Bill is unwise and unfair.

Clause 17(1) makes it an offence to

“deal in unlawfully exported cultural property”

that the dealer knows or has

“reason to suspect… has been unlawfully exported.”

So far, so good. No one can support the dealing in unlawfully exported cultural property when they know it has been unlawfully exported, but the mens rea—criminal intent—required under the provision has caused concern in the London art market. The worry is that “reason to suspect” will place an unacceptable and stifling burden on the market. That aspect of the Bill was touched on only briefly in the other place but was not taken up by the Government.

Clause 17 creates an offence of dishonesty, carrying with it a sentence of imprisonment of up to seven years, as well as the destruction of reputation. The problem that worries me arises from the provision that relates to the state of mind, which must be proved before the defendant can be convicted. Dealing in prohibited property knowing that it has been unlawfully exported, the first offence created by clause 17, is simple, easily described, uncontroversial and comes within well-established and clearly understood principles of criminal law. Dealing in such prohibited property believing that it has been unlawfully exported would also be an equally straightforward offence. “Knowledge” or “belief” identify the mens rea, or criminal state of mind, accompanying the prohibited activity. To establish guilt, the prosecution would have to prove that at the time when the prohibited activity took place the defendant knew or believed that he was dealing in prohibited property.

That, however, is not what the second offence created by clause 17 provides. Rather, it defines the criminal activity—dealing in prohibited property—but by relating the criminal state of mind required for the offence to “suspicion” it introduces an unusual concept into the ordinary law that applies to offences of dishonesty. Indeed, it does not even provide that the offence is proved if the defendant personally suspected that he was dealing in prohibited property.

[Victoria Prentis (Banbury) (Con)]

Can my right hon. and learned Friend think of any other examples of mens rea of this type that are in use?

[Sir Edward Garnier]

One often sees the type currently drafted into clause 17 when a defendant has to rebut a presumption—the possession of certain items in sexual offences or drugs offences. It is also to be found under certain rarely used disclosure offences, such as under section 119 of the Companies Act 2006—something that we speak about so frequently in the clubs and bars of Market Harborough. As regards the substantive criminal law and the making of a substantive criminal offence, my hon. Friend is right to say that this is a rare and wholly unusual distinction, and I quietly urge the Government to think again.

As drafted, this provision abandons the principle that it is the defendant’s state of mind that must be “criminal”, whether defined in terms of belief or even suspicion, for an objective test: whether he had reason to suspect. What may arise from an offence defined in that way can be quickly described. The defendant may be offered property which, because of the circumstances, he may have reason to suspect may be prohibited. Just because he wishes to proceed with caution, and to avoid committing a criminal offence, after sensible inquiry and investigation he may in good faith decide that his suspicions have been allayed and proceed to deal in the property. For a defendant acting in good faith to be convicted of an offence of dishonesty is a novel proposition. It may be suggested that the offence is not intending to apply to such an individual, but only to the individual who, notwithstanding any investigations he may make, turns a blind eye to reasonable grounds for suspicion, but that is not what the clause says. The offence can and should be defined in terms of the defendant’s belief or suspicion, and currently it is not.

Surely the question to ask is whether the defendant did or did not believe, or did or did not suspect. The more powerful the evidence that he had reason to suspect, the more likely it is that the jury would conclude that he did indeed believe or suspect, and that the offence is proved. In short, where the defendant did indeed have “reason to suspect”, that would provide the evidence to establish that he did indeed believe or suspect that he was dealing in prohibited property. That however goes to the evidence available to prove guilt; it should not define the offence.

It would be unusual for an offence of dishonesty to be created that did not focus on the defendant’s personal state of mind. It would also be unusual to create two offences in a single provision which make provision for separate and distinctive forms of criminal intent: knowledge, which is entirely subjective; and reason to suspect, which is not. Any summing up in an indictment which alleges the two offences as alternatives would not be straightforward. Worse still, it would be unwise, and it would make for significant complexity in any trial for two statutes with the same objective—the protection of the cultural heritage of every nation—not to define criminal intent in exactly the same way.

Section 1 of the Dealing in Cultural Objects (Offences) Act 2003 states—

Cremation of Infants (England)

Debate between Lord Garnier and Victoria Prentis

Wednesday 8th July 2015 Westminster Hall

[Victoria Prentis (Banbury) (Con)]

Thank you, Mr Howarth, for calling me to speak. It is a pleasure to serve under you, and I will be as quick as I can.

I am very grateful to my hon. Friend the Member for Shrewsbury and Atcham (Daniel Kawczynski) for securing a debate on this important issue. On average, almost 20 very small babies die around the time of their birth every day in England and Wales. This issue is clearly significant for many families, and indeed for society as a whole.

I also have a constituent’s story to tell, which raises a related but slightly different problem. In 2009, my constituent gave birth to a baby girl who, sadly, did not survive. My constituent was told at the time by the funeral directors that there would not be any ashes, because the body of her baby was too small.

Following the media attention on this issue, which has been mentioned by several Members today, and the campaigning by Action for Ashes, my constituent was moved to contact Banbury crematorium in June. She hoped to find out details of their practice at the time when her baby was cremated. Imagine her enormous surprise and distress when she was told that her baby’s ashes were still at the crematorium, some six years on, waiting for her to collect them. She immediately went to pick up the ashes, as any mother would, and there was no difficulty in identifying them or in the crematorium handing them to her.

I understand that this is not an isolated case. I have written to crematoriums, because I understand that there are more babies whose remains are waiting to be collected; their families are simply not aware that their ashes are in crematoriums. Clearly, that is not acceptable—at the very least there has been a major breakdown in communication between the funeral directors, the crematoriums and the families. It is to be hoped that we can use these sad cases to inform debate and to consider how we can prevent such incidents from happening again.

I am grateful to my hon. Friend the Under-Secretary of State for Women and Equalities and Family Justice for meeting my constituent last week, and for the interest and sensitivity that she has shown in dealing with this difficult issue.

It is no longer necessary to have personal experience of the loss of a young baby to understand their importance in the eyes of their parents, grandparents and wider family. With recent advances in medicine, whereby some babies survive after only 22 or 23 weeks’ gestation, the perceptions of the whole of society towards these very important members of society have altered considerably. We may not be good at discussing death, but we all know that it matters how the bodies of these babies are treated.

The Scottish Government accepted all the recommendations of the Infant Cremation Commission and have established a national committee to ensure that they are implemented. I am keen that we learn from that work and move speedily to ensure that the rest of the UK does not lag behind in its provision for infant cremations.

I understand that both the leading professional organisations in the UK have adopted the wider definition of “ashes” to include remains from clothes, coffins and soft toys. This is good progress, but work must be done to ensure that the definition is applied in practice, and that small babies are always cremated in individual trays. A standard definition, and clear guidelines, would really help in this regard.

Clearly, work also needs to be done to ensure that funeral directors, crematoriums and families know exactly what is going on at each stage of the process. Care must be taken to ensure that both parents are involved in decision making. Obviously, many of the mothers who have given birth to these babies are unwell at the time, and enormous stress is placed on the families. It is very important that everybody is very clear at every stage of the process where the body of their baby is.

[Sir Edward Garnier (Harborough) (Con)]

My hon. Friend is setting out the case most sensitively and powerfully. I am extremely grateful to her, as will be my constituents, Mr and Mrs Jones of Wigston Magna, whose son, Nicholas, died over 30 years ago. They have been living for the last 30 years with exactly the sorts of problems, traumas and distress that my hon. Friend is outlining. I am most grateful to her, on their behalf, for what she is saying.

[Victoria Prentis]

The pressures on the couple, dealing both separately and together with the loss of their child, are enormous, as all hon. Members know. Clearly, specialist staff training is needed to make sure that parents are helped in the best way. Many of us, whether we have lost children or other relatives, know that the actions of funeral directors and crematoriums can really make a difference in helping the living survive a bereavement.