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The Earl of Onslow: If somebody knows or has a suspicion that another person is going to plant a bomb and try to blow up a lot of people, it is reasonable for them to be prosecuted afterwards if they said or did nothing about it. However, we should consider the Northern Ireland situation, where many members of the Roman Catholic and nationalist community often refuse to give evidence or help to the Royal Ulster Constabulary. I hope that we are not creating an offence that would be observed at that level. Would an excuse be, XI am terribly sorry, but I know that if I had come plodding along to the police force I would have had my kneecaps blown off, or possibly been assassinated, and I was too frightened to give evidence"? The idea has slightly wider ramifications, even though in principle it is an extremely good one.
Lord Renton: Subsection (4) imposes an objective test to decide whether there is a defence. There are infrequent occasions in our criminal law when a subjective test is available. The Committee will have to consider carefully whether my noble friend's suggestion that a subjective test should apply in these circumstances is the best way of dealing with the matter. I am trying to keep an open mind on the subject at the moment, but it is important to point out that there is a difference between an objective test and a subjective test in deciding on liability.
Lord Rooker: I am minded to take the point made by the noble Lord, Lord Renton, about keeping an open mind on these issues. It deserves constant repetition. We will listen to what is said in Committee.
Clause 116 makes it an offence to fail to disclose information about terrorism and terrorists. Such information would include anything that a person knows or believes might help prevent someone else carrying out an act of terrorism or would help bring terrorists to justice. The offence will cover all forms of terrorism and will apply to a person even if he was outside the United Kingdom at the time that he became aware of the information.
The conditions and threat from terrorism have changed. The view of the police, which we share, is that the inclusion of such an offence can play an important role in countering terrorism and bringing terrorists to justice by reminding the public of their obligation to help protect their fellow citizens. It will be a defence for a person to prove that he had reasonable excuse for not disclosing the information. I am not in court, but if a person could prove the circumstances that the noble Earl, Lord Onslow, described, that would have to be taken on board.
However, Amendment No. 127 would widen the defence so far that it would be extremely difficult for the police to consider prosecuting successfully. We are aware of the difficulty of proving whether someone believes something. We should avoid trying to get windows into people's minds, because it is very difficult to do. It will be a defence for a person to prove that he had a reasonable excuse for not disclosing the information.
Amendment No. 128 would make it exceptionally difficult to prosecute in such cases. It is difficult to prove whether a person had knowledge of an offence. We believe that the amendment would lead to a reluctance on the part of the prosecuting authorities to proceed in such cases. It would also undermine the intention of the policy to keep the public mind on the duty to protect their fellow citizens. There is an important public policy objective in ensuring that the duty covers all forms of terrorism and reminds people of their obligations to their neighbours and fellow citizens. Some people will be under acute threat not to give information to the authorities for all kinds of reasons. It is not the easiest thing in the world to contemplate ever doing. We have to look at each case on its merits.
We are keeping the debates and amendments under constant attention and review because of the shortness of time between stages to see whether any changes should be made. I am not flagging up any particular change in this case, but I want to make it clear to the Committee that we are listening to what is said. I hope that my comments are enough to encourage noble Lords not to press their amendments. I am not promising to come back with anything on Report, but we are not closing the book when the debate finishes; we are looking at amendments to see whether they have merit that may not have been raised or thought of when they were moved.
Lord Goodhart: Does the Minister accept that if the burden of proving reasonable excuse is left as an absolute burden on the defendant, there is a serious risk that it would be inconsistent with the presumption
of evidence and therefore a breach of Article 6 of the European Convention on Human Rights, as applied by the Human Rights Act 1998?6 p.m.
Lord Rooker: It is because of such questions that I am not closing down the debate. It will be considered.
Baroness Carnegy of Lour: As an ordinary listener to the discussion, could I ask the Minister this question? If a person says, XI do not have this information. I do not believe that I have any information to help you", and he is prosecuted, does saying that he does not have the information provide an excuse under this clause? He may in fact not have any information.
Lord Rooker: The beginning of what will be the new Section 38B says,
- XThis section applies where a person has information".
Lord Kingsland: During the passage of the Terrorism Bill, which then became the Terrorism Act 2000, the Government gave assurances to Parliament that they saw the reasonable excuse defence as an important safeguard for journalists concerned about the protection of sources. We would welcome the Government's repetition of such assurances in respect of all relevant disclosure offences.
I entirely understand why the Minister would like to reflect on that and on the other matters to which he referred in his reply. It would, therefore, be appropriate for me to withdraw this amendment, in the hope that he will come back with something more concrete on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 128 not moved.]
Lord Goodhart moved Amendment No. 129:
- After Clause 119, insert the following new clause—
The noble Lord said: The purpose of this amendment is to extend the jurisdiction of the United Kingdom courts over terrorist offences so as to make them, at least so far as the law applicable in this country is concerned, crimes over which there is universal jurisdiction. It would mean that the United Kingdom courts could try someone charged with terrorist offences wherever those offences were committed, whoever committed them, and whoever was the victim.
For centuries, piracy has been a crime of universal jurisdiction under international law, applied by the domestic courts of the United Kingdom, though that law has now been codified in the UN Convention on the Law of the Sea of 1982.
A number of other crimes are now subject to universal jurisdiction under various conventions. For example, the destruction of aircraft is a universal crime under the Montreal Convention of 1979, which has been implemented in the United Kingdom law by the Aviation Security Act 1982. It would apply to what happened on 11th September, so that anyone who had assisted in that crime would be the subject of universal jurisdiction.
War crimes which are crimes under international law are triable by the courts of any state. Hostage-taking for terrorist purposes has been made a crime of universal jurisdiction in the United Kingdom by the Taking of Hostages Act 1982, which implements a convention entered into in 1979.
Torture was made a crime of universal jurisdiction under the 1985 convention, which was implemented by the Criminal Justice Act 1988. It will be remembered that that particular convention and its implementation played a crucial part in the Pinochet trial.
Section 62(2) of the Terrorism Act 2000 makes terrorist offences of bombing, or the use of biological or chemical weapons, offences of universal jurisdiction. But the United Kingdom courts do not have a general universal jurisdiction over terrorist offences. I suggest that the law should make serious terrorist offences crimes of universal jurisdiction. Many of them now are, but not all of them.
I agree that at present most of the cases of universal jurisdiction arise under international conventions. As yet, there is no general convention on terrorism. That may take years to achieve. I suggest that this country should not wait but should take the lead and, for this purpose, should make terrorism the equivalent of piracy.
The purpose of this amendment is that, first, it makes incitement to terrorism a crime of universal jurisdiction by making it apply to cases where the person inciting the crime is outside the United Kingdom and not just the person inside it, as now. Secondly, it extends the list of offences of universal jurisdiction under Section 62(2) of the Terrorism Act to cover not only those crimes which are now covered but other offences listed under Section 59(2) of that Act—for example, murder.
I believe that the creation of universal jurisdiction would make it easier to prosecute cases which might otherwise lead to detention without trial under Part 4 of the present Bill.
I accept that in many cases of offences committed abroad there will be evidential problems which may make it impossible to have a prosecution in the United Kingdom. Nevertheless, I believe that there will be some cases in which a prosecution in this country would be possible: cases where the defendant cannot be extradited because, if he is extradited, he would be likely to suffer death, torture or inhuman treatment.
I therefore believe that serious terrorist offences should be treated as the modern equivalent of piracy and—translating the old saying from Latin—should be treated as offences against the human race, and that the United Kingdom courts should accept universal jurisdiction.
XEXTRATERRITORIAL JURISDICTION
(1) In section 59(4) of the Terrorism Act 2000 (c. 11) (inciting terrorism overseas), after Xperson" insert Xwho incites or the person".
(2) In section 62(2) of the Terrorism Act 2000 (c. 11) (terrorist bombing: jurisdiction) after paragraph (c) insert—
X(d) murder;
(e) an offence under section 18 of the Offences Against the Person Act 1861 (c. 100) (wounding with intent);
(f) an offence under section 23 or 24 of that Act (poison);
(g) an offence under section 28 or 29 of that Act (explosions); and
(h) an offence under section 1(2) of the Criminal Damage Act 1971 (c. 48) (endangering life by damaging property).""
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