My Lords, this amendment would
mean that persons could not use a defence that they did not know or suspect, or ought to know or suspect, the item was ivory. I should therefore explain why this provision was included and how it would be applied.
This provision has been included to help tackle the problem of illegal ivory items being deliberately mislabelled as another substance, such as bovine bone. It is also to protect those who fall victim of mislabelling of ivory and who, and I underline this, genuinely did not know that the item they were buying contained ivory. The purpose of the Bill is not to penalise or criminalise unnecessarily people who have made a genuine mistake. This provision also allows the police, enforcement bodies and courts to use their professional discretion when considering the most appropriate approach to deploy for individual defendants.
The issue of labelling ivory as another substance when it is sold is a common one. Illegal ivory items are often deliberately mislabelled as another substance, such as bovine bone, in order to evade existing restrictions on ivory sales. For this reason, the Bill ensures it is an offence to deal in ivory where that person knew or suspected, or ought to have known or suspected, that it was ivory. In practice, this means that, where it is clear that a person is deliberately mislabelling ivory as some other substance in order to attempt to circumvent this ban, this will be an offence. Likewise, anyone buying items of mislabelled ivory who could reasonably be expected to know it is elephant ivory will also be liable.
The enforcement bodies and courts will consider the position of the person when taking a view as to whether they should have known or suspected the item was ivory; for instance, if the person is an antiques dealer or a member of the public. They may also, for example, take into account if it is a repeat offence or if the seller deliberately mislabelled the item and then provided other information to indicate more discreetly to potential buyers that the item was in fact ivory. For example, sellers have been known to include close-up photographs in order to show the tell-tale lines or crosshatching, which are characteristic of ivory.
I will need to reflect on what on my noble friend Lord De Mauley said, but the Bill at this moment relates to elephant ivory. We will come on to further amendments that relate to the ability of this legislation potentially to extend to other species. For the moment, the Bill is dealing with elephant ivory.
Clause 12(2) is phrased to capture some instances of genuine mislabelling, where there was no intention to breach the ban and where the person could not reasonably be expected to know the item was ivory. This element of the Bill is designed to protect such people, who may be buyers, sellers or those facilitating a sale or purchase and whose prosecution I think your Lordships would accept is not what we are seeking in this legislation. I hope for those reasons the noble Baroness is able to withdraw her amendment.