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Lord Phillips of Sudbury: I thank the Minister for Amendments Nos. 167B to 167D, which go to the very heart of the unease felt on these Benches--and, indeed, on the Government's own Benches--about the standard of proof which prevailed in this important clause. As the noble Lord, Lord Bassam, pointed out in the course of rejecting one of the amendments in the group, the maximum sentence for breaching this clause is two years' imprisonment and a fine.

I shall speak briefly to Amendments Nos. 164B and 167, which stand in my name and those of my colleagues. We propose to withdraw Amendments Nos. 167A and 168B. However, I hope that I may raise just one point on the question of intent, on mens rea, in relation to offences under Clause 46. Given that it is a serious criminal offence, I am not content merely to have the Minister assert that the Government do not propose in this case to apply the normal test which is basic to our criminal legal system; namely, that there should be no serious criminal offence found without an intent to commit the crime. The Minister might, in responding to this short debate, say something about that.

The second point I wish to raise concerns our Amendment No. 167. In our view, there is virtue--I believe that others share this approach--in requiring any notice to be time limited so that the person or persons to whom it is addressed know where they are in terms of the length of its validity. Our proposed Amendment No. 167 is probing in this regard. Again, I should be glad if the Minister could say whether he sees any problem with that because it seems to us that a time limit is a practical and sensible restriction on the scope of the notices.

Finally, I raise two questions of interpretation on government Amendments Nos. 167B and 167C. Amendment No. 167B provides that if it is shown that a person was in possession of a key and so on, certain consequences flow. I should like to refer to the key phrase,

Is that, as I hope and assume it is, a test on the balance of probabilities and not therefore a test beyond reasonable doubt? If that is correct--I believe it to be so--we have no trouble with it. If, on the other hand, the person who is at risk under that provision has to show at that stage beyond reasonable doubt, we do not think that the amendment works.

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My second query is in relation to the crucial amendment, Amendment No. 167C. Paragraph (a) states that,

    "sufficient evidence of that fact is adduced to raise an issue with respect to it".

"Sufficient evidence", I assume and hope, in this context means prima facie evidence and does not mean a balance of probabilities. We are content with the arrangements proposed under this amendment to throw the burden of proof beyond reasonable doubt back on to the prosecution but only if the evidence--the sufficient evidence that has to be produced by the accused--is prima facie evidence. Subject to those points, we are content with the amendments tabled by the Government.

10 p.m.

The Earl of Northesk: Perhaps I may comment very briefly on the amendments standing in my name in the group. I think I am content with the Minister's response to Amendment No. 164D. I shall certainly read the Minister's comments with care. As to Amendment No. 168A, I am less certain. One of the many difficulties I have with the Bill is that, in its strident efforts to be technology neutral, it often conveys the impression that either it is ignorant of the way in which current technology operates, or pretends that there is no technology at all. The issue with which this amendment, Amendment No. 168A, attempts to deal is the particular case in point. I shall certainly read the Minister's comments very carefully indeed, but I suspect that this will be an issue to which I shall have to return at a later stage.

Lord Lucas: All that Amendment No. 169 does is to try to draw a line from the current position on the right to silence--that is the right of the court to draw an inference from the silence of a defendant. What we are talking about here is just another instance of silence by a defendant. He has refused to provide a key to enable the court to see what lies behind the files on his computer. I should have thought there should be a similar right for the court to draw conclusions from that as it sees fit.

Lord Phillips of Sudbury: I rise to oppose Amendment No. 169. I am more used to being in alliance with the noble Lord, Lord Lucas, on these matters, but it seems to me that this is not a good analogy with the existing inferences that the courts can draw where an accused is silent. This is rather piercing the veil, as one might put it, of past convictions, which is a key foundation of our criminal law. Someone who has been found guilty in the past shall not in the course of a new trial have that past guilt around his or her neck. That would be a backward rather than a forward step, although I understand the point behind the proposal.

Lord Cope of Berkeley: I am glad that the Government have moved on the question of burden of proof. It was important that they should do so. I shall not comment any further on the points made by Members of the Committee on that issue.

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Amendments Nos. 164C and 168C stand in my name and are essentially a pair. They seek to draw attention to the dilemma which, along with several other noble Lords, I mentioned at Second Reading. If someone is holding incriminating evidence on his computer, he may refuse to give the key because the incriminating evidence might incur a severe sentence. In those circumstances, if it is thought that someone has done that, that person deserves to receive a sentence longer than two years because he would receive a much longer sentence if he were convicted of an offence of, say, paedophilia as a result of the police gaining access to the computer.

However, this dilemma appears to be one that none of us can solve. I accept the Minister's point that a sentence of 10 years is a high penalty to impose in many of the cases that would be brought in this area. I fear that the dilemma remains and perhaps there is nothing that we can do about it.

Baroness Harris of Richmond: At last I feel the urge to join in. I am delighted that my noble friends Lord McNally and Lord Phillips of Sudbury have been leading on this extremely complex Bill. I regret that I have not been able to join in the debates that have been held since Second Reading. That has not been entirely helped by the Government's change of dates for the Committee stage. However, I can assure noble Lords that I have followed the deliberations avidly.

In the debate on Second Reading, I raised concerns about the problems surrounding the penalty for failing to disclose a key. I must say that the view expressed by the police is that they would definitely prefer to see a far more severe sentence. They feel that this offence must be an arrestable offence, along with powers of search as set out in Sections 18 and 32 of the Police and Criminal Evidence Act 1984. As it stands, serious and organised criminals might possibly risk the two-year penalty--the likely tariff would be six to 18 months--if the encrypted material could provide evidence of serious criminality such as drug trafficking or paedophilia. If convicted on that evidence, they would face prison sentences of 10 years to life. On the face of it, the penalty provides little deterrent for major criminals. I am sure that the Minister will recognise the concerns of the police here, although I note that he has given reasons why he does not feel that this can be taken any further.

However, I agree with the Minister that a blanket 10-year sentence will not provide the answer. We need to be far more specific about what such a sentence would mean in practice. It could be a draconian measure. As the Minister said, it could well be disproportionate.

Lord Bassam of Brighton: I believe that most of the questions that have been put to me were dealt with in my opening remarks. I do not intend to rehearse all those arguments again. There was perhaps rather too much of it even for my benefit and enjoyment.

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However, I should like to respond to one or two questions put by the noble Lord, Lord Phillips of Sudbury. He raised a question about the way in which a matter would be considered under Amendment No. 167B. The noble Lord said that he would be satisfied if the test was made on the balance of probabilities. So far as concerns the Government, it would not have to extend even as far as that; a weaker version of it would be acceptable. I hope that helps the noble Lord.

The noble Lord also asked the Government to look again at the issue of intent as it is covered in Clause 46. At present we hold the view that Amendment No. 164B is unworkable, but that Amendment No. 164C may be more effective. We should like to give it further detailed consideration. If the noble Lord is content, I shall return to that matter, perhaps on Report.

Lord Phillips of Sudbury: I am grateful to the noble Lord for giving way. Is it unfair to ask why he thinks that a normal criminal test of intent is unworkable?

Lord Bassam of Brighton: That is not what I am saying. I said that we shall look at the issue in relation to Clause 46. We believe that Amendment No. 164B is not workable, but we believe that the way the proposal is expressed in Amendment No. 164C may well be workable. It is for that reason that I want us to have the time to give it further consideration. I am not querying the issue of intent as an issue in itself and how one expresses and understands it. That is not the point of the observation.

The noble Lord asked about "sufficient evidence". We see "sufficient evidence" as being any evidence that raises an issue. It is, if anything, less than prima facie evidence. I hope that that resolves that issue.

The noble Baroness spoke with considerable wisdom in addressing issues relating to the penalty, as did the noble Lord, Lord Cope. But I do not think that it is an easy matter for us to resolve. Both are right, but it is a matter of getting it right for the nature of the offence. At the end of the day, it comes down to an issue of compliance. That is what we have to satisfy. Those were the main additional points which were perhaps not covered in my earlier comments.

On Question, amendment agreed to.

[Amendments Nos. 164B to 167A not moved.]

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