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Lord Goodhart moved Amendment No. 9:

"( ) Nothing in this section shall apply to a transmission which is excluded from a criminal sanction under the Electronic Commerce (EC Directive) Regulations 2002 (S.I. 2002/2013)."

The noble Lord said: My Lords, I hope that we shall have only a short debate on this point and I do not intend to test the opinion of the House. This amendment has been tabled in order to try to get an assurance from the Government. I understand that the Internet Service Providers Association has been having discussions with the Government. Internet service providers are keen to ensure that the protection given to them under the e-commerce regulations 2002 should not be overridden by the Bill. Those regulations implement a European Community directive that is binding on the United Kingdom. However, the ISPA is still not satisfied with the assurances given on the application of the e-commerce regulations, although its concerns have been met on a number of other issues.

The protections offered by the directive are essential to ISPs in the United Kingdom. Can the Minister answer questions which, if the answers are right, would have the effect of giving the assurances we seek? First, do the Government accept that exemptions from criminal proceedings under the e-commerce regulations should not be overridden by the Bill? Secondly, it appears not to be clear in the Bill that those exemptions do in fact remain in full force. Do the Government believe that the exemptions are not overridden by the Bill or, if they intend to deal with the problem at all, will they do so in some other way—and
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if so, how? In particular, are the Government contemplating secondary legislation—and if so, on what basis?

I should add that the concerns of the ISPA also extend to the possibility of forfeiture of members' servers under Clause 28. If that happened, it would be disastrous for an Internet service provider. My own view is that a court would have no power to do this and therefore I have not tabled an amendment on the point. However, the ISPA would be comforted if the Minister can confirm that this is also the Government's view. I beg to move.

Lord Bassam of Brighton: My Lords, this amendment would ensure that service providers who fall within the definition of "mere conduits" are able to avail themselves of the protections in the Electronic Commerce (EC Directive) Regulations 2002 against criminal liability. "Mere conduits" are, broadly speaking, providers who supply transmission and access services. These are usually Internet service providers who may also perform a number of other functions.

During discussions between officials, the UK Internet Service Providers Association and LINX, the ambiguity of the relationship between the regulations and the Bill was of clear concern to the industry. The Government have been less concerned, although obviously not complacent, because of the way the offences in Clauses 1 and 2 are structured. The intent and subjective recklessness tests and the defences of non-endorsement in both clauses mean that mere conduits who would be very unlikely to know about the presence of statements equally would be very unlikely to be considered criminally liable under the terms of the Bill. However, to provide additional clarity, during the Report stage, I confirmed to the House that the Government intend to bring forward a statutory instrument which will apply the protection against criminal liability currently enjoyed by mere conduits to the Terrorism Bill, as well as other provisions of the regulations. It is the Government's aim to do so as soon as is practicably possible with the aim that it will be completed within this parliamentary Session. So I can say that all sides of your Lordships' House are committed to achieving the same effect. In essence we are seeking to examine the best means to provide the necessary protections via the statutory instrument which we intend to bring forward.

I cannot advise the House to accept the amendment as it confers far wider protection than is granted under the terms of the e-commerce regulations. I am sure that the noble Lord will accept that point. It does so by conferring protection on transmissions rather than just the mere conduits protected by the regulations. We believe that the approach I have outlined to solving this little problem is the best way forward, given all the other safeguards that exist, not least the requirement for intent or subjective recklessness. I do not believe that the short gap that may occur between Royal
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Assent and the making of the statutory instrument will place anyone at undue risk and certainly the industry does not seem concerned about the issue either.

The noble Lord, Lord Goodhart, sought another assurance about the seizure of articles under Clause 28. I can give the assurance on the ISPA request regarding search and seizure that the powers to search, seize and forfeit cover only articles that can be disseminated under Clause 2. Servers and other IT equipment owned by ISPs do not come under that definition. The noble Lord asked whether the Government accept that exemptions are not overridden—yes we do and, as I explained, we will deal with the matter through secondary legislation.

I hope that having heard what I said about the amendment and about our intention to bring forward a statutory instrument as soon as we can, the noble Lord will feel happy to withdraw his amendment.

Lord Goodhart: My Lords, as I said at the beginning, I do not wish to test the opinion of the House on this amendment. Discussions between the Government and the ISPA and LINX are not concluded and no doubt there will be further issues. As regards your Lordships' House, for the time being we must leave the matter there. I hope that what the Minister said will prove satisfactory to the organisations concerned. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart moved Amendment No. 10:

"( ) In this section "appropriate judge" means—
(a) in England and Wales, a circuit judge or a judge of the High Court;
(b) in Scotland, a sheriff or a judge of the High Court of Judiciary;
(c) in Northern Ireland, a High Court judge."

On Question, amendment agreed to.

Lord Goodhart moved Amendment No. 11:

(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)(b), 2(7)(b) and 3(5)."

The noble Lord said: My Lords, the amendment relates to the standard of proof on matters that have to be proved by the defendant. A defendant is never required to prove anything beyond reasonable doubt, but there are two possible standards that a defendant may be required to meet. The higher of the two is that the defendant must prove his or her case on the balance of probabilities. The lower level is that there is what is known as an evidential burden of proof; that is, if the defendant produces enough evidence to raise an
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arguable case, the burden shifts back from him or her to the prosecution to disprove that defence beyond reasonable doubt. The lower standard—simply having to show an arguable case—has been applied in a number of terrorist defences; for example, the evidential burden of proof applies to seven different sections of the Terrorism Act 2000 by virtue of Section 118 of that Act.

Requiring a defendant to prove particular facts as part of his or her defence, of course, conflicts with the general presumption of innocence and must, therefore, be used only with great care and when really necessary. I accept that in some circumstances where the facts are in the particular knowledge of the defendant, requiring the defendant to give evidence of those facts may be justified. But a reverse burden of proof should not be used beyond that.

This amendment applies to three provisions. The first two apply respectively to Clauses 1(6)(b) and 2(7)(b), which are similar. They both provide that it is a defence for the defendant on a charge of publishing or disseminating terrorist statements to show that what was published or disseminated did not represent the defendant's own views and, furthermore, clearly did not represent those views. It can be argued that the first issue—that the statement did not represent the views of the defendant—is wholly within the knowledge of the defendant and, therefore, requiring him or her to prove that on the balance of probabilities is acceptable. But the second issue—was it made clear in the context that they did not represent the defendant's views—is different.

Let us look, for example, at a magazine which publishes an article which is sympathetic to the terrorist acts of Hamas. The magazine contains an article also which puts the contrary view. The magazine is prosecuted and the prosecution says that it has been acting recklessly. The publishers of the magazine satisfy the court that they do not agree with the article which is sympathetic to Hamas and that that article does not therefore represent their view. But the question arises: have they made that clear? That seems to be to a large extent an objective test. It depends not on the views of the defendants but on the likely reaction of readers, which is not within the specific knowledge of the defendants. I believe that it should be beyond doubt that once the defendants have shown what steps they took to make clear their disagreement with the views expressed in the article, it is for the prosecution to show that those steps were insufficient.

The third clause to which this amendment applies is Clause 3(5). This arises out of the problem of repeat statements; that is, where a blocked statement reappears in the same form through the same Internet service provider, which is very difficult to prevent. It is a defence under the Bill to show that the Internet service provider has taken every step it reasonably could to prevent a repeat statement being transmitted. It is reasonable to require an Internet service provider to give evidence about what steps it took. But the question of whether it should have taken further steps is technical, because it is a matter of having to tell the court what other steps might have been available to be
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taken, and objective, because it is a test of reasonableness. The burden of showing that the ISP could reasonably have taken further steps must once again be on the prosecution.

I accept, reluctantly, that it is legitimate to require the defendants to explain their views, or what steps they have taken to publicise those views or to prevent repeat statements being published. But it is wrong to require a defendant to prove matters which may not be within his own knowledge and may be objective in their application. The amendment aims to prevent what I believe would be an injustice and is inconsistent with the rules of our criminal process and the need to prove the guilt of the defendant. Any reverse burden of proof should be limited only to those elements of the offence which are primarily within the knowledge of the defendant and should not go beyond that, as the Bill now does. I beg to move.

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