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"( ) For the purposes of this section, "indirect encouragement" comprises the making of a statement describing terrorism in such a way that the listener would infer that he should emulate it."
The noble Lord said: My Lords, the House has already spoken to the amendment. It simply remains for me to move it and to test the opinion of the House. I beg to move.
On Question, amendment agreed to.
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[Amendments Nos. 10 to 12 not moved.]
Baroness Scotland of Asthal moved Amendment No. 13:
Page 2, line 15, leave out from "whether" to "relates" and insert "anything mentioned in those subsections"
The noble Baroness said: My Lords, I am grateful to the noble Lord, Lord Kingsland, for not moving his amendments.
Government Amendment No. 13 is a technical amendment consequential on government Amendment No. 4, which your Lordships have already considered. I beg to move.
On Question, amendment agreed to.
Baroness Scotland of Asthal moved Amendment No. 15:
Page 2, line 22, leave out from "proceedings" to end of line 26 and insert "for an offence under this section against a person in whose case it is not proved that he intended the statement directly or indirectly to encourage or otherwise induce the commission, preparation or instigation of acts of terrorism or Convention offences, it is a defence for him to show-"
The noble Baroness said: My Lords, in moving Amendment No. 15, I shall speak also to Amendment No. 16 on Clause 1 standing in my name.
As we have discussed, I tabled a number of amendments which insert intent with subjective recklessness into the new offence of disseminating terrorist publications in Clause 2, mirroring the same test as exists in Clause 1. I also tabled amendments to modify the wording of Clause 1. They do not change the effect of Clause 1 in any significant way, but they allow the offence in Clause 2 to operate on the same principles as those in Clause 1, to the extent that this is possible for a different offence.
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These amendments relate to the defences in Clauses 1 and 2. I shall quickly summarise how those defences work. Clause 1 creates the offence of encouragement to terrorism. Under it, it will be an offence for a person to publish or cause another person to publish on his behalf a statement when they either intend that it should be understood as an encouragement to terrorism or are reckless as to whether it is likely to be so understood. The clause will use the subjective definition of recklessness as set out in Regina v G.
Clause 2 creates the offence of dissemination of terrorist publications. An individual is considered to have committed an offence if he disseminates a publication intending that those to whom it will become available will be directly or indirectly encouraged to commit, prepare or instigate acts of terrorism or intending that they find the information to be useful in the commission or preparation of terrorist acts; alternatively, the individual who is disseminating the publication is considered to have committed an offence if he is reckless to the possibility that they will be so encouraged or find the information so useful. In deciding whether a publication amounts
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to a terrorist publication, the court must take into account the context of its dissemination at the time of that conduct and the contents of the publication. It is currently a defence for a person who is charged under Clause 1 to show that he published the statement in respect of which he is charged or caused it to be published only in the course of the provision or use by him of a service electronically; that the statement neither expressed his views nor had his endorsement; and that it was clear in all the circumstances that it neither expressed his views nor had his endorsement.
Amendments Nos. 15 and 16 would give effect to the changes which I signalled in Committee. Amendment No. 15 would generalise the defence in Clause 1—that is, that the person who published the statement did not endorse it and that it was clear in all the circumstances that he did not endorse it—so that it is available to everyone and not just to those who are providing a service electronically. It also restricts it to those who commit the offence recklessly. After all, there is no reason why a defence should be available to those who commit the offence intentionally.
Amendment No. 16 is a technical amendment. It clarifies the provision relating to the assessment of a statement that could fall under Clause 1. It makes it clear that the circumstances that need to be taken into account are those of the statement's publication. The defence in Clause 2(9) is similar to the defence in Clause 1(6). It is currently a defence for a person charged under Clause 2 to show that he engaged in the conduct described in Clause 2(1)—namely, the dissemination of a terrorist publication—only in the course of the provision or use by him of a service electronically; that the publication so far as it encouraged terrorism neither expressed his views nor had his endorsement; that it was clear in all the circumstances that it did not express his views nor had his endorsement; and that any information contained in that publication that may be of assistance to terrorism was not intended by him to be so useful. Again, we have brought forward amendments to widen this defence so that it extends to all those who can prove that material contained in the publication, in so far as it encouraged terrorism, neither expressed their views nor had their endorsement, and that it was clear in all the circumstances that this was so. In the context of including an intent test in Clause 2, we have also brought forward amendments to remove the defence from those who disseminate information of use to terrorists. With the intent test in place, this defence is no longer necessary.
Under Clause 2(8), it is also a defence for a person who is prosecuted under Clause 2 to show that he had not examined the publication in respect of which he had been charged; that he had no reasonable grounds for suspecting that it was a terrorist publication; and that the matter contained in the publication did not have his endorsement. In the light of the inclusion of an intent test in Clause 2, we have brought forward amendments to remove this defence from the Bill.
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Clause 3 provides a power for a constable to issue a notice to the effect that the content of an electronic service appears to him to amount to encouragement to terrorism or information of assistance to terrorists. A person who receives such a notice must ensure that the offending material is no longer available to the public within two working days. If a person fails, without reasonable excuse, to comply with the notice, he will be deemed to endorse the material in question and therefore will not be able to take advantage of the defences in Clauses 1 and 2. A person who receives a notice under Clause 3 will be responsible for repeat statements—in other words, statements that are the same as the statement to which the original notice related—unless he can show that he had taken reasonable steps to stop repeat statements appearing. This defence is set out in Clause 3(5). It is not a freestanding defence; it forms an element of the defences in Clauses 1 and 2.
Bearing in mind that Amendment No. 14 of the noble Lord, Lord Goodhart, was not moved, and that other amendments in the group have not yet been moved, I do not propose to deal with any further amendments unless noble Lords indicate that I have somehow misunderstood the way in which we are now dealing with these amendments. I beg to move.
Lord Goodhart: My Lords, I shall clarify the situation. Following the new amendments introduced by the Government, the position is considerably changed. It is not now my intention to move any of the amendments in the group other than Amendment No. 61, to which I shall speak when we reach it in due course.
On Question, amendment agreed to.
Baroness Scotland of Asthal moved Amendment No. 16:
On Question, amendment agreed to.
Clause 2 [Dissemination of terrorist publications]:
Lord Kingsland moved Amendment No. 17:
"( ) A person commits an offence under this section if he disseminates a terrorist publication and either—
(a) he does so with the intention of directly or indirectly encouraging or inducing the commission, preparation or instigation of acts of terrorism, or of providing information with a view to its use in the commission or preparation of such acts, or
(b) he is reckless as to whether the dissemination of that publication will have such an effect."
The noble Lord said: My Lords, your Lordships will recall that, at the end of the Committee stage, the Liberal Democrats and my own party were pressing the Government to introduce intent into Clause 2. We then tabled Amendment No. 17 to that effect. Last Friday, which was the closing day for amendments, the Government, somewhat to our surprise, although delight, tabled their own amendment on intent to Clause 2. Once again, the differences between us and
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the Government are not differences of principle; they are differences of drafting. It is in that context that I wish to promote Amendment No. 17.
As your Lordships can see from the Marshalled List, Amendment No. 17 would amend the Bill so that the offence would be to disseminate a terrorist publication,
In the Government's recently tabled alternative provision, which flows over two amendments, Amendments Nos. 19 and 20, the definition of intent is,
"an intention that the persons to whom the publication is or will become available . . . should include persons who will be directly or indirectly encouraged . . . to commit . . . acts of terrorism".
In our view, the Government's definition is crucially defective in at least one respect. It is difficult to see, for example, how a librarian in a public library or university could possibly know whether a large pool of potential borrowers includes people who would be so encouraged. The key question for your Lordships to determine is what "should include" means in this context.
I recently received a communication from an organisation called Universities UK, which gave a graphic example of the problems that are likely to confront librarians in this context. Consider the position of the British Library. The books on the shelves are available to everybody who lives in the United Kingdom. We can be certain that there are people in the United Kingdom who could find information in standard chemistry books useful in making bombs. Therefore, by intending to make a standard chemistry book generally available, the librarian would appear to be guilty of the offence as defined by the Government's amendments. Why is that? It is because if the librarian knows this but does nothing about it, he could be said to be reckless as to whether one or more of those who would borrow and read the book would be among those who could be directly or indirectly encouraged to commit acts of terrorism.
That is why, I suspect, the Government have chosen to keep part of Clause 2(9) as a defence for someone so accused. In these circumstances, the individual will not be guilty if he can establish on a balance of probabilities either that he is not aware of what is in the publication or, even if he is aware, that he would not have endorsed it. Yet why should somebody be placed in this position, having to wait until they are prosecuted, then raising a defence on the balance of probabilities that they are innocent? The proper position should be that intent be established by the prosecutor in the first place. I beg to move.
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