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Mr. Lidington: As I understand the report of Lord Lloyd of Berwick, the comparable provision in the emergency provisions Act led to no fewer than 24 convictions since the power was first introduced in 1991. We should therefore pause before we accept the dilution of the law that the amendment would allow.
According to my interpretation of clause 56, the prosecution has to prove that an article found during an investigation is incriminating of likely terrorist activity. That is an unqualified burden on the prosecution when the case comes to court. The reversal of the burden of proof applies only when the defendant wants to argue that, although the article was present and was found in circumstances that created a reasonable suspicion that it was connected with terrorist activity, he did not possess it and was not aware of its presence. That proposal is not as unreasonable as the hon. Members for Southwark, North and Bermondsey (Mr. Hughes) and for Islington, North (Mr. Corbyn) suggest.
I agree with Lord Lloyd of Berwick, who argued that if,
- during a search of premises occupied by a suspected terrorist, the police . . . find materials such as timers or chemicals in highly incriminating circumstances without also finding explosives or other prohibited materials--
- be required to account to the court for his possession of the articles.
Mr. Charles Clarke: The debate was rehearsed in Committee in columns 252-53. The general question of whether the clause constituted a reversal of the burden of proof has also been considered at length.
First, let me refer to the report of Lord Lloyd of Berwick. The possession offence for which clause 56 provides is useful and effective. Lord Lloyd sets it out clearly. The hon. Member for Aylesbury (Mr. Lidington) provided some details. The provision reflects the prevention of terrorism Act. We are satisfied on the basis of the Lords ruling in Kebilene that the provision is not incompatible with the European convention on human rights.
Mr. Bermingham: Does the Minister agree that the comments of the hon. Member for Aylesbury (Mr. Lidington) were sheer rubbish? If one finds timers, explosives and so on, they are per se objects of terrorism. We are arguing about whether the reverse burden is applicable. It is not applicable in view of article 6 of the European convention on human rights.
Mr. Clarke: I do not agree with the analysis of my hon. Friend. For the purpose of clarity, I shall go through clause 56. Subsection (1) states:
- A person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism.
- It is a defence for a person charged with an offence under this section to prove that his possession of the article was not for a purpose connected with the commission, preparation or instigation of an act of terrorism.
12.45 am
Subsection (3) is specifically addressed by the amendment. Again, the point is clear: the court may assume that the accused possessed the article unless he proves that he did not know of its presence on the premises or that he had no control over it.
A series of hurdles would have to be overcome by the prosecution to get to an offence in this particular area. We are dealing with serious issues, as set out in Lord Lloyd's report. I hope that the House agrees that the amendment should be defeated if put to the vote, but I also hope that the hon. Member for Southwark, North and Bermondsey will withdraw it, as he did in Committee.
Mr. Simon Hughes: We went round the course once in Committee and then considered the components of the clause in the clause stand part debate. I expressly reserved our position at that stage, as the Minister fairly recognises, and sought to amend the clause--which I thought would be of practical value--in a significant and material way that we think would correct the balance. This is a symbolic effort because there are similar clauses, but rather than test it ad nauseam through the evening, we think it right to put our amendment to the vote. I shall not withdraw it because even if, with draconian powers, some success would be achieved, it is at least unwise to provide a balance that is so weighted and so unusual--in more than one way, there is a double balance in favour of the prosecution--when there is clear controversy and specific advice that the measure falls foul of the European convention.
In the very year in which we are introducing the convention into British law--the hon. Member for Hull, North (Mr. McNamara) referred to it--putting the Bill on the statute book permanently does not send the right signals either to Northern Ireland, where people are seeking to re-establish normal criminal justice, or to the rest of the country, where we are seeking to uphold our traditions well. We do not want the Bill to be permanent and I regret greatly the inclusion of such provisions. Of course the prosecution will be more likely to succeed if the burden of proof is reversed. That is self-evident. If there were no defence rights, there would be more convictions. That, too, is self-evident. The fewer rights there are, the more likely that the defence will have difficulties.
We cannot afford to risk the miscarriages of justice that such provisions will enable and it is important that the House, with as much support as possible, either defeats the Government and amends the clause or at least signals its clear view that the other place should reconsider the matter.
Question put, That the amendment be made:--
The House divided: Ayes 35, Noes 239.
AYES
Allan, Richard
Ashdown, Rt Hon Paddy
Baker, Norman
Ballard, Jackie
Beith, Rt Hon A J
Breed, Colin
Bruce, Malcolm (Gordon)
Burnett, John
Burstow, Paul
Campbell, Rt Hon Menzies
(NE Fife)
Chidgey, David
Corbyn, Jeremy
Cotter, Brian
Davey, Edward (Kingston)
Fearn, Ronnie
Foster, Don (Bath)
George, Andrew (St Ives)
Hancock, Mike
Harris, Dr Evan
Heath, David (Somerton & Frome)
Hughes, Simon (Southwark N)
Jones, Dr Lynne (Selly Oak)
McDonnell, John
Maclennan, Rt Hon Robert
McNamara, Kevin
Moore, Michael
Morgan, Alasdair (Galloway)
Rendel, David
Russell, Bob (Colchester)
Sanders, Adrian
Stunell, Andrew
Tonge, Dr Jenny
Tyler, Paul
Webb, Steve
Willis, Phil
Tellers for the Ayes:
Mr. Tom Brake and
Sir Robert Smith.
NOES
Ainger, Nick
Ainsworth, Robert (Cov'try NE)
Allen, Graham
Anderson, Janet (Rossendale)
Arbuthnot, Rt Hon James
Atkins, Charlotte
Austin, John
Banks, Tony
Barnes, Harry
Beard, Nigel
Beckett, Rt Hon Mrs Margaret
Benn, Hilary (Leeds C)
Bennett, Andrew F
Benton, Joe
Bermingham, Gerald
Berry, Roger
Blackman, Liz
Blears, Ms Hazel
Boateng, Rt Hon Paul
Borrow, David
Bradley, Keith (Withington)
Bradshaw, Ben
Browne, Desmond
Burgon, Colin
Butler, Mrs Christine
Campbell, Alan (Tynemouth)
Campbell-Savours, Dale
Cann, Jamie
Caplin, Ivor
Casale, Roger
Cawsey, Ian
Chapman, Ben (Wirral S)
Clapham, Michael
Clark, Dr Lynda
(Edinburgh Pentlands)
Clark, Paul (Gillingham)
Clarke, Charles (Norwich S)
Clelland, David
Clifton-Brown, Geoffrey
Clwyd, Ann
Coaker, Vernon
Coffey, Ms Ann
Cohen, Harry
Collins, Tim
Colman, Tony
Connarty, Michael
Cook, Frank (Stockton N)
Corston, Jean
Cousins, Jim
Cox, Tom
Cranston, Ross
Crausby, David
Cryer, Mrs Ann (Keighley)
Cryer, John (Hornchurch)
Cummings, John
Cunningham, Jim (Cov'try S)
Curtis-Thomas, Mrs Claire
Darvill, Keith
Davey, Valerie (Bristol W)
Dawson, Hilton
Day, Stephen
Donaldson, Jeffrey
Dowd, Jim
Eagle, Angela (Wallasey)
Eagle, Maria (L'pool Garston)
Ennis, Jeff
Fisher, Mark
Flint, Caroline
Flynn, Paul
Foster, Rt Hon Derek
Foster, Michael J (Worcester)
Gapes, Mike
George, Bruce (Walsall S)
Gerrard, Neil
Gibson, Dr Ian
Gilroy, Mrs Linda
Godman, Dr Norman A
Godsiff, Roger
Goggins, Paul
Golding, Mrs Llin
Gordon, Mrs Eileen
Griffiths, Jane (Reading E)
Griffiths, Win (Bridgend)
Grogan, John
Hall, Mike (Weaver Vale)
Hall, Patrick (Bedford)
Hamilton, Fabian (Leeds NE)
Hanson, David
Heal, Mrs Sylvia
Healey, John
Heathcoat-Amory, Rt Hon David
Hepburn, Stephen
Heppell, John
Hesford, Stephen
Hinchliffe, David
Hope, Phil
Howarth, Alan (Newport E)
Hoyle, Lindsay
Hughes, Kevin (Doncaster N)
Hurst, Alan
Hutton, John
Iddon, Dr Brian
Illsley, Eric
Ingram, Rt Hon Adam
Jackson, Helen (Hillsborough)
Jamieson, David
Jenkins, Brian
Johnson, Miss Melanie
(Welwyn Hatfield)
Jones, Rt Hon Barry (Alyn)
Jones, Mrs Fiona (Newark)
Jones, Helen (Warrington N)
Jones, Jon Owen (Cardiff C)
Jones, Martyn (Clwyd S)
Keeble, Ms Sally
Keen, Alan (Feltham & Heston)
Kemp, Fraser
Kennedy, Jane (Wavertree)
Khabra, Piara S
Kidney, David
Kilfoyle, Peter
Kumar, Dr Ashok
Laing, Mrs Eleanor
Laxton, Bob
Lepper, David
Levitt, Tom
Lewis, Ivan (Bury S)
Lewis, Dr Julian (New Forest E)
Lidington, David
Linton, Martin
Lock, David
Love, Andrew
Luff, Peter
McAvoy, Thomas
McCabe, Steve
McDonagh, Siobhain
McFall, John
McGuire, Mrs Anne
McIsaac, Shona
Mackinlay, Andrew
McLoughlin, Patrick
Mactaggart, Fiona
McWalter, Tony
Mahon, Mrs Alice
Mallaber, Judy
Marsden, Paul (Shrewsbury)
Marshall-Andrews, Robert
Maxton, John
Meacher, Rt Hon Michael
Merron, Gillian
Miller, Andrew
Moffatt, Laura
Moonie, Dr Lewis
Moran, Ms Margaret
Morgan, Ms Julie (Cardiff N)
Morley, Elliot
Mountford, Kali
Murphy, Denis (Wansbeck)
Murphy, Rt Hon Paul (Torfaen)
Naysmith, Dr Doug
O'Brien, Bill (Normanton)
O'Brien, Mike (N Warks)
O'Hara, Eddie
Olner, Bill
O'Neill, Martin
Organ, Mrs Diana
Pearson, Ian
Pendry, Tom
Pickthall, Colin
Pike, Peter L
Plaskitt, James
Pollard, Kerry
Pope, Greg
Pound, Stephen
Prentice, Ms Bridget (Lewisham E)
Prosser, Gwyn
Purchase, Ken
Quin, Rt Hon Ms Joyce
Quinn, Lawrie
Rammell, Bill
Rapson, Syd
Reed, Andrew (Loughborough)
Rooker, Rt Hon Jeff
Rooney, Terry
Ross, Ernie (Dundee W)
Rowlands, Ted
Ruane, Chris
Russell, Ms Christine (Chester)
Ryan, Ms Joan
Salter, Martin
Sawford, Phil
Sedgemore, Brian
Shaw, Jonathan
Simpson, Alan (Nottingham S)
Singh, Marsha
Smith, Rt Hon Andrew (Oxford E)
Smith, Angela (Basildon)
Smith, Miss Geraldine
(Morecambe & Lunesdale)
Smith, Llew (Blaenau Gwent)
Soley, Clive
Squire, Ms Rachel
Starkey, Dr Phyllis
Steinberg, Gerry
Stewart, David (Inverness E)
Stinchcombe, Paul
Stoate, Dr Howard
Strang, Rt Hon Dr Gavin
Straw, Rt Hon Jack
Stringer, Graham
Stuart, Ms Gisela
Taylor, Rt Hon Mrs Ann
(Dewsbury)
Taylor, Ms Dari (Stockton S)
Taylor, David (NW Leics)
Thomas, Gareth R (Harrow W)
Timms, Stephen
Tipping, Paddy
Todd, Mark
Touhig, Don
Trickett, Jon
Turner, Dennis (Wolverh'ton SE)
Turner, Dr Desmond (Kemptown)
Turner, Neil (Wigan)
Twigg, Stephen (Enfield)
Tynan, Bill
Vis, Dr Rudi
Walley, Ms Joan
Ward, Ms Claire
Watts, David
White, Brian
Widdecombe, Rt Hon Miss Ann
Williams, Rt Hon Alan
(Swansea W)
Williams, Alan W (E Carmarthen)
Williams, Mrs Betty (Conwy)
Winnick, David
Winterton, Ms Rosie
Doncaster C)
Wise, Audrey
Wood, Mike
Woolas, Phil
Worthington, Tony
Wright, Anthony D (Gt Yarmouth)
Wyatt, Derek
Tellers for the Noes:
Mr. Gerry Sutcliffe and
Mr. Clive Betts.
Question accordingly negatived.
Clause 81
Arrest and seizure: constables
Amendment made: No. 26, in page 39, line 28, after "seize", insert "and retain".--[Mr. Jamieson.]
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