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Lord Mackay of Drumadoon: Before the Minister replies, perhaps I may slightly complicate the situation again by indicating that, as I understand the Bill, we in Scotland will not have even the two zeros. The effect of new Section 2A(10) is that, when dealing with questions of sufficiency of evidence in Scotland, one piece of evidence will be sufficient. Reading from line 47, it states:

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As I understand the drafting of Clause 1, that would cover the opinion evidence of a police superintendent under subsection (2). That would only apply if the court or jury had drawn an inference under subsection (6) but, because of the differences between the law of corroboration in Scotland and England, that inference would not go to the question of sufficiency; it would merely be a precondition which required to be satisfied before the sufficiency of evidence could be resolved by the one piece of evidence, which could be opinion or a membership book or other paraphernalia.

I beg to differ with what was said in another place by the Minister of State, Adam Ingram, that there was no diminution of the corroboration requirements in Scotland. There is a serious difference but one which I understand and am prepared to accept. The noble and learned Lord the Lord Advocate and his officials have been quite right in resisting any suggestion at all that one could draw from silence a piece of evidence which was sound in sufficiency. I believe that, because of the peculiar way in which Scots law deals with corroboration--I do not use that word in any offensive way--it is important to resist any suggestion that silence can give rise to an inference which, as a piece of evidence, goes to the question of sufficiency.

It may well be that, having intervened, there has been a change in the Minister who is to reply. With the greatest respect to the noble Lord, Lord Williams of Mostyn, I would welcome such a change.

Lord Hylton: The noble Lord, Lord Holme of Cheltenham, is probably right to be concerned about corroboration and right to probe that question. However, if his amendment were to be accepted in its present form, it would appear to put the law of England and Wales on a different footing from the law of Northern Ireland. To my mind that would be a bad thing and ought to be resisted.

I come now to Amendments Nos. 24 and 25, which stand in my name and which for some reason or other have been grouped with Amendment No. 9. My amendments are probing ones and they concern the matter of retrospection. Amendment No. 24 is a paving amendment whereas Amendment No. 25 is straightforward in form. In Great Britain the new standards of proof will apply only to offences committed after the Bill becomes law and comes into force. However, it appears from Clause 3(2) that offences in Northern Ireland may have been committed at any time before or after the passing of the Act. I am sure the Minister will correct me if I am wrong in saying that. It thus appears to me that there is unlimited retrospection in this respect as regards Northern Ireland.

Retrospective legislation is always to be avoided and the different and exceptional treatment for Northern Ireland strikes me as being wrong in principle. I therefore seek to limit the retrospection to the date of 10th April 1998. As your Lordships will know, that is the date of the signing of the Belfast agreement. I very much look forward to the Minister's reply as I received no reply when I raised this point at Second Reading.

Lord Hardie: Perhaps I may deal first with Amendment No. 9. The amendment would not permit

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the court to convict on the basis of inferences plus the statement of the senior police officer. But that is what in certain circumstances the Government would wish to occur, certainly as far as concerns England and Wales. We think that that is not unreasonable. The accused will know the effect of failing to answer a relevant question. So, as far as concerns England and Wales, the short answer is that the adverse inference plus the police officer's statement would be sufficient evidence.

The situation in Scotland is different because of the law of corroboration. The provision affecting Scotland, as the noble and learned Lord, Lord Mackay of Drumadoon, pointed out, is subsection (10). The effect of subsection (10) may best be illustrated by examples. First, I take the example of where an adverse inference cannot be drawn. In that situation the normal rule of corroboration applies that two separate sources of evidence and required pointing to the guilt of the accused. One of the sources may be the opinion of the police officer. But it is also clear from the earlier provisions in relation to the opinion of the police officer and from subsection (3)(b) that the statement of the police officer shall be admissible as evidence of the matter. But it goes on to say that,

    "the accused shall not be committed for trial in England and Wales, or be found to have a case to answer or be convicted [anywhere] solely on the basis of the ... statement".
Therefore, the statement alone is not enough.

Then we come to the situation where an adverse inference is drawn. That is a precondition of subsection (10). That subsection says that,

    "where the court or jury draws an inference as mentioned in subsection (6) ... any evidence that he belongs"
to the organisation is sufficient. There is a precondition that there has to be an inference. In addition to that any evidence would be sufficient. But I would not accept that the opinion evidence of the police officer would be sufficient because of the provisions of subsection (3). That is how I interpret that provision and see it applying in Scotland because of the question of corroboration. As the noble and learned Lord is well aware, an inference in that situation would not amount to a separate piece of evidence for the purposes of the law of corroboration.

I now turn to the amendment of the noble Lord, Lord Hylton. If these amendments are accepted, as the noble Lord has said, it would mean that a person who was a member of a specified organisation before 10th April of this year would not be subject to the new arrest and detention powers. That cannot be right. If the specified organisations were never, and are not now, part of the peace process, why should membership of these organisations before 10th April be treated differently from membership after that date? We do not accept that that would be reasonable. Accordingly, I ask noble Lords to withdraw their respective amendments.

Lord Hylton: Perhaps I may reply to what the noble and learned Lord has just said. To my mind, once the

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agreement was public and had been signed by the parties to it, the splinter groups had an opportunity to declare their ceasefires, but they failed to take it.

Lord Thomas of Gresford: Perhaps I may revert to the earlier part of the Lord Advocate's reply. He said that an inference could be drawn from failing to answer a relevant question. That is not what the Bill says. It states that an inference is to be drawn if a person, on being questioned and after advice, fails to mention a fact which is material to the offence. It would be quite wrong for it to be thought that failing to answer a relevant question gives rise to an adverse inference under the terms of the Bill.

Failing to mention a fact which is material to the offence is to be proved by subsection (7), which states,

    "Subject to any directions by the court, evidence intending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention".
Therefore it is not simply a question of drawing an adverse inference from failure to answer a relevant question. The prosecution has to prove a fact which is material to the offence, it has to prove that the person failed to mention that fact, and it has to prove the opinion of the police officer. I appreciate that the noble and learned Lord the Lord Advocate has been as rushed over this legislation as everyone else but I say with the greatest respect to him that it is important one uses the words carefully and only the words that are contained in the Bill.

10.30 p.m.

Lord Hardie: I accept entirely what the noble Lord says. Unfortunately, I was using a shorthand method and as ever when one does that one may give a false impression. If I gave a false impression, I certainly apologise to the noble Lord and to the Committee. The way in which the noble Lord has expressed the position is perfectly correct.

Lord Holme of Cheltenham: Having launched a probing amendment I think it is quite clear that the answer is as stony as I expected, although my noble friend Lord Thomas has extracted a useful clarification from the Government. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hylton moved Amendment No. 10:

Page 2, line 49, at end insert--
("(10A) Where a person is convicted of an offence under section 2(1)(a) above and--
(a) a statement to which subsection (3) applies has been admitted as evidence of the matter stated, or
(b) the court or jury has drawn an inference as mentioned in subsection (6), or
(c) where both paragraph (a) and (b) apply,
the maximum term of imprisonment to which that person is liable on conviction on indictment is 12 months.").

The noble Lord said: Amendment No. 10 is also semi-probing in character. Its purpose is quite simple; it is to limit the length of imprisonment that can be

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imposed for membership of an illegal organisation when no other form of criminal behaviour has been alleged and proved. It is necessary because there is so much uncertainty. For example, on 1st September Mr. Nicholas Watt, The Times political correspondent, wrote that mere membership could attract a 10-year gaol sentence. Perhaps the Minister can confirm that or, if not, tell us what the maximum sentence could be.

Following discussion in this Chamber on Amendments Nos. 1, 4 and 8, there seems to be uncertainty about the precise meaning of "belongs to an organisation." Here I follow both the noble and learned Lord, Lord Mayhew of Twysden, and my noble and learned friend Lord Lloyd of Berwick. I do not imagine that terrorist splinter groups keep elaborate and accurate membership records. Does the phrase therefore mean "is actively engaged in," or does it mean "supports financially," or "sympathises with and may do the odd errand for?" I believe the expression is an elastic one and could be stretched to cover a wide variety of situations. For all those reasons I propose that the maximum penalty for mere membership should be one year's imprisonment. I beg to move.

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