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Lord Goodhart: My Lords, I am grateful to the Minister for her full reply to the amendment. I was
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interested by her reference to what I said in Committee, which I absolutely stick by, that if there was an intent test it would be unnecessary to have this kind of defence.

The Government have taken that very much on board. They have said that if intent is proven, there is no room for the special defences. The special defence only arises in a case where the prosecution has failed, or not tried, to prove intent and is simply relying on the recklessness test. Where the basis of the case against a defendant is recklessness, it is essential that we have some form of protection such as providing that there is a special defence and that the burden of proof is shifted on to the defendant.

There are two arms to the defence. The first is whether the defendant himself has the relevant view as to what he is transmitting. If he says that it does not represent his own views it seems to me that there are ways of disproving that. One way would be to say, "You have only to look at what he said and it is perfectly obvious that it represented his views". Another is to say, "He may say that but if you look at other occasions on which he has spoken, he has there made it clear that the views expressed in this material are the same as his views". Whether either applies, it seems to me a perfectly appropriate matter to require the prosecution to prove.

It is even clearer when one gets to the clarity of his disclaimer. I concentrated on it earlier. As my noble friend Lord Thomas of Gresford said, it is plain that he is being called on to prove a negative. That is an extraordinarily difficult thing to do.

There is the extraordinary width of the test in Clauses 1 and 2 as to what might amount to a terrorist publication. That makes it essential to have a meaningful defence; otherwise, people who do not intend to encourage terrorism will be convicted simply because they have been unable to discharge a significant burden of proof. I do not think that that will do. It is a matter to which we shall have to return at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.45 pm

Clause 8 [Attendance at a place used for terrorist training]:

Lord Goodhart moved Amendment No. 62:

"( ) In proceedings against a person for an offence under this section, it is a defence for him to show—
(a) that he had permanently ceased to attend at the place as soon as practicable after becoming aware that instruction or training was being provided there for the purposes specified in subsection (2)(a); or
(b) that he had at no time while attending at the place intended to further or assist other persons to further such purposes.
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( ) 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."

The noble Lord said: My Lords, I am sorry the House has to listen to me once again. This clause makes presence at a place where terrorist training is provided an offence punishable with a sentence of up to 10 years' imprisonment. It should be open to the defendant to show that he was not there for the purpose of furthering terrorism. It is a matter of particular concern to the media, and has been raised with me by the BBC.

In debate, the possibility was raised that a journalist might go undercover in order to write an article exposing what is happening. There is a stronger case. The BBC says that it would wish to be able to send reporters openly to training camps to interview the leaders. That is a legitimate and important form of journalism. I assume that this would be overseas terrorism and not terrorism directed towards this country. Such journalism is telling the population of this country what the leaders of these movements think and why they are doing what they are doing. It is not encouraging other people to support them. That legitimate and important element of journalism would become wholly impracticable. I am told that it is already affecting BBC programme-making for the future. The BBC would be most unlikely to do something which would be an offence under the Bill and rely on the DPP or the Attorney-General blocking any prosecution.

There is a need to protect the legitimate actions of the media. John Simpson wrote an important article in last Sunday's Sunday Telegraph. That article made it clear why Clause 8 would damage investigative journalism which is in the public interest. I hope that the Minister has read it. If she has not, she certainly should as soon as possible. It explains why Clause 8 would do, and is already doing, harm. I shall quote not the whole article, because it is quite long, but the concluding paragraph. It states:

The whole of this article puts much more clearly than I could—indeed, I do not have time to repeat all of it—why this amendment to Clause 8 is essential. I accept that this is a case where the defendant should have to explain his or her reasons for going to the place where training is happening and not leave it to the prosecution to prove. But it should be an evidential burden. Once it can be shown, for example, that somebody was going there as a journalist, it should be for the prosecution to prove that that person was going there to assist in the training and not simply as a journalist.

Of course, people other than journalists are concerned. A house that is used for training may be at issue. The wife and the children of the owner of the
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house in charge of the training may have taken no part in that training, but would find themselves committing an offence that is punishable by 10 years' imprisonment. It is possible too that someone may go to a training place simply as someone's wife or partner and intends to take no part. I doubt whether those examples alone would justify this amendment, but the effect that this clause would have on serious investigative journalism of significant public interest makes it necessary to ensure that a defence of this kind is available. I beg to move.

Lord Elton: My Lords, the noble Lord's is not a solitary voice. He rightly said that the last two of his illustrations might not justify this amendment, but his principal example of the investigative journalist is crucial. I hope that some means of protecting that activity will be found.

Lord Judd: My Lords, the noble Lord, Lord Goodhart, said that journalism is not the only profession to be concerned. The other, obvious example that springs to mind is the courageous academic who is trying to conduct serious research into the nature of terrorism and what confronts us. He might find himself or herself in acute difficulties under the proposed legislation. From time to time, a Member of this or the other House might similarly want to inform himself about the nature of what we were confronted with and he too would have to think seriously about whether he could undertake such a mission.

Baroness Whitaker: My Lords, I hope it is also possible that members of the security and the intelligence services would be able to infiltrate such camps without incurring risk.

Lord Thomas of Gresford: My Lords, the Government have graciously conceded that intention and recklessness should be the mens rea in offences under Clauses 1 and 2. It is interesting to compare that with the offence that is created by Clause 8. The actus reas is simply attending a training camp. That is all. The mens rea is not encouraging, intending to help, playing a part or anything of that sort, the mens rea is simply knowing or believing that the training is being provided at that camp. That opens a person to an offence carrying 10 years' imprisonment.

The purpose of this amendment is to cover all the areas that have been referred to by noble Lords in discussing this amendment. Clearly where one has as draconian a prohibition as is set out in Clause 8, it is right that a person with perfectly legitimate reasons should not have to face the possibility of being convicted of a serious offence. It may be a medical person, for example, as well as the illustrations that have already been given, who finds himself attending at a training camp. If he puts forward his perfectly legitimate reasons for being there, it is for the prosecution to rebut his defence with evidence. That is the essential thing; that it should be with evidence. In
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a defence of this type, raising an evidential burden of proof should be faced, and not with something that is far more nebulous than that.

I hope the listening Government—as we have heard it said at least six times today—will listen just a little bit more carefully on this one, and realise how tight and draconian this particular section is.

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