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Terrorism Bill

I will certainly think about the noble Baroness’s question, although I do not think that it could. The noble and learned Lord, Lord Lloyd, is absolutely right. We are not removing recklessness. We are saying that the test is subjective and not objective. The House should accept that we have moved a long way, not least because it makes this offence considerably more difficult to prosecute, and we have accepted that. The question is whether it makes it impossible to prosecute. Noble Lords should be aware of the argument that the concession would make it almost impossible for there to be a prosecution, and we had to think very carefully as to whether that was the case. We believe that it would be possible—I emphasise ““possible””—to prosecute using the subjective test, but no one should be left in any doubt as to the difficulties of satisfying that test. It would be difficult even as it is currently structured. Whether the burden of proof should be placed on the defendant is a difficult issue. Placing the burden on the defendant must be assessed to ensure that it does not breach, for example, Article 6 of the ECHR, which guarantees the right to a fair trial. The Government’s view is that it is proper and fair for the defendant to bear the burden of proof in those circumstances. Placing a burden on the defence is fair and reasonable for a number of reasons. First, endorsement is not an element of either offence; therefore, the defences are aimed at the exception to the offence. Secondly, whether or not a person endorsed a statement or was expressing his view is within his particular knowledge. Whether that person examined a publication or intended it to be useful to terrorists is also within his particular knowledge. Finally, the defendant is in the best position to bring forward evidence of how he runs his electronic service and to show that the electronic material on it did not have his endorsement. The reason why I said that I would consider the point raised by the noble Lord, Lord Goodhart, was to see whether there was anything further that we could do. Of course we will look at this matter, but I should make it clear that I do not believe, having moved such a considerable way forward, that any further movement is likely and it would be wrong of me to leave that impression in your Lordships’ minds. This move is very considerable indeed.