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Terrorism Bill

I support my noble friend Goodhart in this amendment. Reference has been made to the case of Caldwell by the noble and learned Lord, Lord Lloyd. That was reversed in the case of R v G in 2003. It is quite instructive to look at the speech of the noble and learned Lord, Lord Steyn, in that case. This is what he said about it:"““The surest test of a new legal rule is not whether it satisfies a team of logicians but how it performs in the real world. With the benefit of hindsight the verdict must be that the rule laid down by the majority in R v Caldwell failed this test. It was severely criticised by academic lawyers of distinction. It did not command respect among practitioners and judges. Jurors found it difficult to understand: it also sometimes offended their sense of justice. Experience suggests that in Caldwell the law took a wrong turn””." I have to accept, as the noble and learned Lord has pointed out, some responsibility for that, since my argument failed in Caldwell. The noble and learned Lord, Lord Steyn, went on:"““That brings me to the question whether the subjective interpretation of recklessness might allow wrongdoers who ought to be convicted of serious crime to escape conviction””." The noble Lord, Lord Waddington, earlier this afternoon asked whether bringing in a subjective test of recklessness would have this effect. The noble and learned Lord, Lord Steyn, continued:"““Experience before the R v Caldwell did not warrant such a conclusion. In any event, as Lord Edmund-Davies explained,””—" and I have to say that he agreed with my argument—"““if a defendant closes his mind to a risk he must realise that there is a risk and, on the evidence, that will usually be decisive . . . One can trust the realism of trial judges, who direct juries, to guide juries to sensible verdicts and juries can in turn be relied on to apply robust common sense to the evaluation of ridiculous defences””." That was the decision of the Judicial Committee, having to interpret recklessness in an existing statute—that is, the Criminal Damage Act. That is a difficult concept and it is unnecessary when one is dealing with the speech offences, with which this Bill is concerned. We are concerned not with how a person acts but with what he says and what its effect will be on the audience. Either he is trying to encourage them, in which case it is arguable that he should be punished for doing that, or he is not. It has to be a statement. It is not enough for him merely to applaud a speaker or to shout in a crowd to encourage people. He has to be saying something to people. He knows what he is saying. If he is trying to encourage, he should be punished. If he is not trying to encourage and somebody takes it the wrong way in a way that he cannot possibly foresee, he should not be punished. That is the issue with which we are concerned, and I fully support my noble friends in his attempt to exclude entirely from the Bill this very difficult concept of recklessness in the criminal law.