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Lord Kingsland moved Amendment No. 55:

On Question, amendment agreed to.

[Amendments Nos. 56 to 60 not moved.]

Lord Goodhart moved Amendment No. 61:


"DEFENCES
(1) Subsection (2) applies where in accordance with a provision mentioned in subsection (3), it is a defence for a person charged with an offence to prove a particular matter.
(2) If the person adduces evidence which is sufficient to raise an issue with respect to the matter, the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.
(3) The provisions in respect of which subsection (2) applies are sections 1(6), 2(8) and (9) and 3(5)."

The noble Lord said: My Lords, this amendment, which is again significant, concerns the special defences that are provided in Clause 1(6), Clause 2(9) and Clause 3(5). I have accepted the various changes that the Government have made to these amendments, but in Committee I argued that they were unnecessary if an intent test was applied, whether or not they were combined with a—I apologise to the House, I was reading from the wrong page.

Amendment No. 61 concerns the standard of proof where legislation requires the defendant to prove something as a defence. The normal rule is that the defendant must prove the facts that he or she is required to prove on the balance of probabilities. However, where an Act so provides, it is possible to impose a lower standard of evidential burden. If a defendant shows that there are arguable grounds for his defence, the burden shifts back to the prosecution to disprove that beyond reasonable doubt. That was done in comparable circumstances in Section 118 of the Terrorism Act 2000.

Recklessness is, as I argued earlier today, an unsatisfactory ground for conviction in these cases. The real test will be in relation to the relevant provisions in Clauses 1 and 2 over the defence that the defendant made it clear that the publication did not express his views. That means that it will be necessary to look at the disclaimer—using disclaimer in the broad sense, including not merely formal disclaimers but any equivalent which has been published—along with the overall tone of the publication, and so on. The dispute on whether a disclaimer or other material is enough to show clearly that the statements did not express the defendant's view is objective, not
 
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subjective. Therefore, where there is some kind of disclaimer, it should be for the prosecution to show that it is not clear enough. It is not for the defendant to show that it was. This is a case where making the burden of proof evidential is necessary and essential.

In this case, these defences are going to be of great importance so long as the recklessness test remains in the Bill, as it clearly will, since they will be the only way out in a potentially large number of cases where it is possible to say that the material one has been putting out could encourage terrorism among people who were likely to be vulnerable to that encouragement. In those cases, such a defence will be important; for example, to all the major media outlets—both broadcast, like the BBC, and press—that may want to do things which they are well aware could technically cause support or encouragement for terrorism among some people.

I believe, therefore, that it is essential that the test be made a reasonably low one. Once the defendant has produced some grounds for saying that it does not represent his views—and that he made it clear that it does not—then it should be for the prosecution to show that there is no sufficient clarity and that the offence has, in fact, been committed. I beg to move.

9.30 pm

Lord Thomas of Gresford: My Lords, I strongly support the amendment because the defences propounded in Clauses 1 and 2 require the defendant, generally, to prove a negative. Under Clause 1(6)(b) he has to prove,

Under Clause 1(6)(c) he has to prove,

The defence in Clause 2 is essentially proving a negative. Subsection (8) states:

These are serious offences, both punishable by imprisonment of up to seven years. Consequently, it ought not to rest finally on the defendant to show a negative. Certainly he will be required to give evidence; certainly he will be required to raise the issue by saying, "Well, I never endorsed this. I never knew about it. I never examined it". But once that has happened [Interruption]. I shall burst into song in a moment, I can see, and it would probably be better for your Lordships if I did.

Lord Elton: My Lords, it is such a pleasure to have two speakers from the Liberal Democrat Front Bench. They obviously cannot perform a duet but it is good to have an accompanist instead.

Lord Thomas of Gresford: My Lords, I shall have a word with the accompanist later.
 
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My point is that it is obviously incumbent on a defendant to raise the defence. He has to say, "I did not see it" or "I did not endorse it", but once he has done that the burden of proving a serious criminal offence should, as in the generality of cases, rest on the prosecution, which would have to either discredit him by cross-examination or produce evidence to rebut the defence he was seeking to put forward. It would then be for the jury to decide. As it stands, with the burden being placed on the defendant, these alleged defences are not real or acceptable defences at all.

Lord Kingsland: My Lords, the noble Baroness has been on the end of two barrels from the Liberal Democrat Front Bench and it seems almost inhumane for me to fire at her from a different point in your Lordships' House.

I support the amendment of the noble Lord, Lord Goodhart, and I want to re-emphasise the two points that he made. First, given the fact that this test is contained in the most important parts of the Terrorism Bill, and as it runs right through this Bill—principally, but not only, because of the definition of "terrorism" contained in it—it plays back the principle of consistency that the noble Baroness deployed with such skill in the course of our discussion over Amendment No. 17. We should apply that principle to the question of the evidential burden.

Secondly, the two offences to which the amendment would apply were it to be accepted are contained in Clauses 1 and 2. They are both offences which carry with them very stiff penalties; and that is an additional reason for adopting the amendment.

Baroness Scotland of Asthal: My Lords, I thank the noble Lord, Lord Kingsland, for his compliment in saying that I debated "with such skill and efficiency". I would just note, of course, that that skill and efficiency had no effect whatever. I therefore wish him the same success that I received.

In relation to the amendment, perhaps I may say to the noble Lord, Lord Goodhart, that I am a little surprised. I shall explain why. When we debated these matters in Committee I listened with great care to everything said in this regard because, of course, we were looking at the difference between the evidential burden and the usual burden. The point made so powerfully was that if we did not have in the provision intent simpliciter, or indeed intent with recklessness, then one of the ways of addressing the issues about which he was concerned was by having the reverse evidential burden. However, if we had the intent provision, of course all these worries and concerns would fall to one side.

I just remind the noble Lord, Lord Goodhart, of what he said then. I think it might assist your Lordships if we refresh our memories so I cite it here in full. The noble Lord, Lord Goodhart, said that this new clause was,


 
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I warmly agreed with him and it was part of the reason, when considering how to address the proper concerns that had been expressed, that we brought forward the comprehensive amendments to which I have already referred. I just want to say in that regard—I say it with utmost gentleness to the noble Lord, Lord Kingsland—that it is a tad inconsistent to say that we agree in principle on recklessness, we agree on intent, but we do not agree that we have now done enough and do not need this. I would be happy to give way if, on mature reflection, the noble Lord wants to change his mind. I note with the most acute disappointment the noble Lord shaking his head.

Let me, therefore, try to respond more fully. I think we have to examine this properly and I feel that it would probably be appropriate just to clarify the actions that would force these defences. Clause 1 creates the defence of encouragement to terrorism. Under this clause it would be an offence for a person to publish, or cause another to publish on his behalf, a statement they either intend to be understood as an encouragement to terrorism or that they are reckless as to whether it is likely to be so understood. This will use the subjective recklessness test definition set out in Regina v Gee.

Clause 2 creates the offence of dissemination and the intent provision is provided for in the new clause in the way that we have all debated this afternoon. It is therefore currently a defence for a person charged under Clause 1 to show that he published, or caused to be published, the statement in respect of which he is charged only in the course of provision or use by him of a service electronically, and that the statement neither expressed his views nor had his endorsement. So 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 of the Bill to show that he engaged in the conduct falling within Section 2(1); namely, disseminating a terrorist publication only in the course of provision or use by him of a service electronically and that the publication, so far as it encouraged terrorism, neither expressed his views nor had his endorsement and that it was clear in all circumstances that it did not express his views, nor have 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. All the things that noble Lords wanted, I may respectfully suggest, are now there in the offence, being something that is a defence to the application. Overall the burden will continue to rest on the prosecution in the ordinary way.

Because of the changes we have made, the evidential shift, as the noble Lord, Lord Goodhart acknowledged in Committee, is no longer necessary. A person who receives the notice under Clause 3 will be responsible for the repeat of statements and we have gone through these matters quite extensively. Whether or not the burden of proof should be placed on the defendant is always a difficult issue. When it is, it must be assessed to ensure that it does not breach Article 6 of the ECHR, which guarantees the right to a fair trial.
 
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It is the Government's view that it is proper and fair for the defendant to bear the burden in these circumstances.

Placing a burden on the defence in relation to the offences is fair and reasonable for a number of reasons. First, the question of endorsement, which is an issue here, is not an element of either of the offences. The defence is therefore a true defence aimed at the exception to the offence. Secondly, whether or not a person endorsed a statement or it expressed his views is a matter that is peculiarly within his own particular knowledge. It is right and proper for it to fall to the defendant to prove that he did not endorse a publication or statement in all the circumstances. The defendant will have available to him evidence to show whether he endorsed a statement or publication or, as the case may be, his intention for disseminating it. For example, he can provide testimony from his audience, point to disclaimers and bring forward evidence on the nature of his business.

Placing a burden on the defence in relation to Clause 3(5) is also fair and reasonable for a number of reasons. The steps a person took to prevent repeat statements appearing are within his particular knowledge, and the process whereby a person becomes liable for repeat statements is fair.

The reversal of the burden in any particular offence is not a small matter. I know that the noble Lord appreciates that, but as we discussed in Committee, it is not a novel one. I remind your Lordships of the strong parallel I made to Section 18 of the Terrorism Act which Parliament passed only five years ago and which creates the offence of money laundering of terrorist property. This offence provides for the defendant to prove that he did not know, and had no reasonable cause to suspect, that terrorist property was involved. This is a very similar provision. The defendant is best placed to prove whether he did or did not endorse publication and make this clear in all the circumstances.

Accepting the amendment would make the defences to the offences of encouragement to terrorism and dissemination of terrorism too easy to establish, especially in the face of the amendments that we have made to increase the burden on the prosecution with respect to Clause 2. I remind your Lordships once again that it is the Government's intention to create an offence that covers the evil of encouraging others to commit terrorist acts, and to make this offence workable.

I hope that we have demonstrated that, as a listening Government, we listen with a great deal of care and attention. We assume that noble Lords opposite mean what they say when they say that if we introduce an intent test, it would be unnecessary to have these amendments. I respectfully agree with their original position. We have sought to meet their concerns and we believe that we have met them fully and honourably.


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