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Terrorism Bill

I rise to speak to Amendments Nos. 2, 7, 12, 18 and 34 in the same line. We share the concerns of the noble Lord, Lord Cameron of Lochbroom, about the matter to which he referred your Lordships. Our solution is slightly different to that of the noble Lord, but we are entirely with him in what he intends to achieve. In Clause 1, your Lordships are faced with two objective tests for a criminal offence. The first will be dealt with in a line of amendments a little later. It refers to the concept of objective recklessness—a concept which I hope that noble Lords will in time decide to expunge from the Bill. The second objective test is the one to which the noble Lord, Lord Cameron of Lochbroom, referred. It finds itself on page 1, line 5 of the Bill. The noble and learned Lord, Lord Cameron of Lochbroom—and I apologise for not adding ““and learned”” so far—has, after the word ““statement””, used the expression,"““which members of the public to whom it is published could reasonably be expected to understand””." Our approach has been simply to replace the expression ““is likely to”” with the expression ““would””. It now reads:"““This section applies to a statement that is likely to be understood by members of the public to whom it is published””." We would replace that with:"““This section applies to a statement that would be understood by members of the public””." We accept that the test should continue to be objective on that aspect of the offence. But in our submission the concept is too vague and introduces a standard of proof that is more suited to the civil law than the criminal law; that is, the standard of the balance of probabilities. It will always be difficult for someone, before he or she makes a statement, to guess what effect it is going to have. A balance of probabilities test is wholly inappropriate where one is talking about offences in relation to things said. In our submission, ““would”” is the appropriate answer to the problem posed by the Government’s wording. A jury would clearly understand how to interpret the expression,"““a statement that would be understood by members of the public””." We believe that it would be absolutely clear to a jury what that meant and it would have no difficulty in fulfilling the task presented to it once the evidence in the trial was over.