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The Second Deputy Chairman: With this, it will be convenient to consider the following amendments: No. 17, in page 3, line 7 at end insert--
- '( ) No person shall be convicted of an offence under section (2)(1)(a) above on the basis solely of the cumulative effect of the opinion of a police officer under section 2A(2) acting together with any inference or inferences drawn under section 2A(6)(a).'.
- '( ) No person shall be convicted of an offence under section 30(1)(a) above on the basis solely of the cumulative effect of the opinion of a police officer under section 30A(2) acting together with any inference or inferences drawn under section 30A(6)(a).'.
The new section 2A(3) to be inserted by the Bill says:
However, the Bill does not say what should happen if the criteria in both subsections (3) and (6) apply. Is it the Government's intention that an accused should not be found guilty on that double criterion alone? Our assumption is that an individual should not be found guilty solely on the basis of subsections (3) and (6) both applying.
In an interesting and pertinent point, the right hon. Member for Upper Bann (Mr. Trimble) said earlier that the Bill was not a breakthrough, but an additional opportunity for us to legislate to make it more difficult for terrorists to operate, and a little easier for us to bring them to book. However, if the collective effect of fulfilling the criteria in subsections (3) and (6) entitled the court to find the accused guilty, that would be more than just a reduction in the level of evidence required; it would almost be a change in principle of the barrier between guilt and innocence. Therefore, it seems unlikely that the Government intend such a dramatic change to apply.
We do not intend to push the amendment to a vote, but we should be grateful for clarification from the Minister of what the Government intend should be the collective effect of subsections (3) and (6). If the Minister feels that the amendment would be useful, we should be pleased to hear him express an intention to accept it as it stands, or to take it away and substitute a Government amendment in another place.
Mr. McNamara:
The amendment standing in my name and that of my hon. Friend the Member for Islington, North (Mr. Corbyn) is somewhat similar to that moved by the hon. Member for Montgomeryshire (Mr. Öpik), so I do not intend to delay the Committee too long. I merely wish to make the point that it appears, that, on the basis of the information we have and what appears on the face of the Bill, although the fact that a person has exercised the right to silence will not of itself convict, and although the single opinion of a police officer will not of itself convict, both put together will convict. That seems wrong.
I urge my right hon. and hon. Friends in the Government to reconsider their position. I shall not rehearse the Second Reading debate, but the points made then by hon. Members on both sides--some of whom supported my amendment, some of whom did not--expressed grave concern that that combination of factors, without any additional corroboration or evidence, would not only be sufficient to send a person to prison for a considerable time, but might result in him and his family losing their house, their possessions and other assets. It cannot be right that, on the flimsy basis of a policeman's opinion and a person's decision not to make a statement, not only should that person suffer a heavy prison sentence, but so much else should be put at risk.
Mr. Ingram:
The amendments would prevent an accused person being committed for trial or convicted solely on the basis of the admissible evidence of a police superintendent or more senior officer and an inference drawn, when considering whether the accused is a member of specified organisation, from failure to mention a material fact. Therefore, the amendments would undermine the fundamental thrust of the legislation, which is designed to make it easier to secure conviction for membership of a specified organisation.
The Government have already taken full account of the civil liberty concerns, by ensuring that neither of those two new evidential changes is sufficient on its own. Having done so, they see no reason to make further changes that would reduce the impact of what is proposed.
Hon. Members need to be reminded that nothing in the Bill alters the criminal burden and standard of proof required to obtain convictions. It remains the case that a court would need to be satisfied on the evidence, beyond reasonable doubt, that the accused was guilty of the membership offence. We have introduced specific and targeted measures to try to bring to justice those who belong to specified organisations. The amendments would weaken that, and prevent that objective from being achieved. That goes against the fundamental principles of the legislation, so I urge the Committee to reject the amendments.
Mr. Öpik:
I am horrified that the Minister is under the impression that we are trying to weaken the legislation. The hon. Member for Hull, North (Mr. McNamara) and I are simply trying to clarify the position. I apologise to the Minister if I have frightened him with my comments.
Is it the Minister's understanding of clause 1 that, if both subsection (3) and subsection (6) were fulfilled, that would mean that the individual was necessarily to be found guilty of the offence; or would the court be entitled to take both those pieces of information and add them to the general deliberations to decide whether or not an individual was to be found guilty and convicted?
Mr. Ingram:
The hon. Gentleman did not frighten me. I was trying to explain the effect of the amendments, and I saw him nodding as I did so. The two evidential changes could result in a conviction only if the courts so decided. It is not for me or for the Committee to decide. The evidence would be subject to scrutiny either by a Diplock court or by jury courts in the rest of the United Kingdom.
If the RUC pressed a case, and the Director of Public Prosecutions in England and Wales or Northern Ireland accepted its arguments, there would have to be a reasonable certainty that a conviction could be obtained, as those involved would realise that otherwise the very principle of what we are trying to achieve could be undermined. The RUC would be sure of its ground before pressing a case.
The right hon. Member for Upper Bann (Mr. Trimble) rightly referred to the robustness of the legal system in Northern Ireland, and we have full protection in the jurisdictions in Scotland and in England and Wales. It is for the courts, not for me, to decide whether there should be a conviction, but I can say that a conviction could--not necessarily would--happen on the basis of the two elements.
Mr. Beith:
I want to draw the Committee's attention to the difficulties that could arise if someone who has in the past been involved with, say, the Provisional IRA, has resisted answering questions because he does not want to incriminate himself for his former activities. The evidence of the police officer may not be soundly based, and that person may have failed to answer the questions, not because he is guilty of belonging to a proscribed organisation that has not called a ceasefire. There is a risk that, if the two elements alone are relied on, wrongful convictions will be secured. We hope that the courts will watch carefully for that.
Mr. Öpik:
We are a little uncomfortable about the provisions. The Minister will have noticed that I nodded with a great deal more sincerity on the second occasion than on the first. I can delight him with the news that I think that his position is entirely clear. We may want to return to the matter, but I thank him for his clarification.
Mr. McNamara:
What the Minister said is important for the record. He said that the changes could lead to a conviction, but that it is not for him but for the courts to say that they would. We all accept that. We are being told that two flimsy pieces of evidence that are insufficient individually could result in a conviction. I am unhappy that the hon. Member for Montgomeryshire (Mr. Öpik) is happy to accept that.
Mr. Öpik:
To clarify the position, we are concerned about the matter, and it may be useful to consider it further, perhaps in another place. At least we have had clarification from the Minister about where he stands on the matter. I have also ascertained from his response that he recognises that someone who meets the two criteria will not necessarily be convicted. That does not go as far as we or the hon. Member for Hull, North would like, not least because the evidence could be flimsy. However, I accept that the issue may need to be further considered, and we do not intend to press the amendment to a vote. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: No. 61, in page 2, line 46, after 'court', insert 'having belonged'.
"If this subsection applies--
Subsection (6) makes a similar provision, that the accused shall not be found guilty solely on the basis of inferences drawn from a failure to make a statement on the issue.
(a) the statement shall be admissible as evidence of the matter stated, but
(b) the accused shall not be committed for trial in England and Wales, or be found to have a case to answer or be convicted, solely on the basis of the statement."
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