My Lords, the noble Lord, Lord Tunnicliffe, and I have discussed this matter and I have written to him on the subject. I have also discussed this at length with colleagues in the Ministry of Justice, and I will attempt to set out the reasoning behind why we are resisting the amendment.
The Government believe that removing the requirement to dazzle or distract would widen the offence more than is appropriate, thereby criminalising behaviour that would not cause harm. It is government policy and part of the better regulation agenda not to criminalise behaviour unless it is absolutely necessary, which includes focusing any offence on the behaviour it seeks to address. Criminal law ought not to be more extensive in scope than is necessary to achieve its purpose. In creating criminal law, a balance has to be drawn between protecting society and individual rights, and an act generally should not be condemned as criminal where there is no risk of a harmful effect on the public or society.
The offence in this Bill has already been widened from the original contained in the Vehicle Technology and Aviation Bill because it now covers when pointing a laser at a vehicle is,
“likely to dazzle or distract”.
This means that the prosecution will not necessarily need to prove that the laser dazzled or distracted if it presented a clear risk and potential to do so. Evidence of that could come either from the person whom the laser is attempting to dazzle or distract, or from eyewitnesses.
Furthermore, this will be a strict liability offence. Such an offence requires no proof of intention or knowledge of wrongdoing and therefore should be kept within appropriate bounds. There is no need to prove intent to harm, or to dazzle or distract. When the police try and prosecute more serious cases under the offence of endangering an aircraft, they are required to prove recklessness or negligence, which can make prosecutions difficult. Under the new offence, it will no longer be necessary to prove that the accused was reckless or negligent. It is therefore the Government’s opinion that the offence as it is now drafted will make it easier to prosecute without going further and criminalising behaviour that does not present a risk to the public.
I hope that that explains the reasoning for resisting the amendment and satisfies the noble Lord. However, I have heard the arguments and would be interested as to whether he would like us to consider the matter further.