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Terrorism Bill

I am grateful to the noble Lord for tabling the amendment because it gives me the opportunity to bring a number of the different issues that we have been debating together. I hope that I can explain how the Bill is crafted so as to meet the concerns which noble Lords have indicated. I, of course, congratulate the noble Lord, Lord Kingsland, on his usual telegraphic delivery. As we have discussed extensively, Clause 1 creates an offence of encouragement to terrorism. Under this clause it will be an offence for a person to publish, or cause another to publish on his behalf, a statement when either they intend that it should be understood as an encouragement to terrorism or where they are reckless as to whether or not it is likely to be so understood. Clause 2 creates the offence of dissemination of terrorist publications. An individual is considered to have committed an offence if they disseminate a publication containing material that is likely to be understood either as direct or indirect encouragement to terrorism, or as information wholly or mainly intended to be of assistance in the commission or preparation of terrorist acts to those to whom it is likely to become available through such conduct. In deciding whether a publication amounts to a terrorist publication, the court must take into account the context of its dissemination at the time of that conduct, and the contents of the publication as a whole. I am putting that into context because it is important for us to see how the offences operate so that we can better understand why the defences provide the safeguards that we need. The provision that the court must take into account the context of the publication’s dissemination at the time of the conduct which may amount to an offence is very important because it ensures that those engaging in innocent pursuits will not be caught by the offence. So this new clause relates to the statutory defence under Clause 1, the two defences under Clause 2 and the provisions relating to repeat statements in Clause 3. It is a defence for a person charged under Clause 1 to show that he published the statement in respect of which he is charged or caused it to be published only in the course of provision or use by him of a service electronically, and that the statement neither expressed his views nor had his endorsement, and that it was clear in all the circumstances that it did not express his view nor had his endorsement. We have talked about the amendments that we propose to lay in due course in that regard. The defence is intended to provide protection for those providing an electronic service. Electronic services such as the Internet are, as we have discussed, a fast-moving medium. This, combined with the nature of websites such as those on which the public can post messages, often means that a person may not be aware of the content of their service. We have agreed all of that already. The defence in Clause 2(9) is similar to the defence in Clause 1(7). I hear what the noble Lord, Lord Goodhart, says—that Clause 1(7) is no longer necessary, and we have discussed why we disagree about that. It is a defence for a person charged under Clause 2 to show that he engaged in the conduct falling within Clause 2(1)—the dissemination of terrorist publications—only in the course of provision or use by him of a service electronically, that the statement so far as it encouraged terrorism neither expressed his view nor had his endorsement, that it was clear in all the circumstances that it did not express his view nor have his endorsement and that any information contained in that publication that may be of assistance to terrorism was not intended by him to be so useful. Under Clause 8, it is also a defence for a person prosecuted under Clause 2 to show that they had not examined the publication in respect of which they had been charged; that they had no reasonable grounds for suspecting that it was a terrorist publication; and that the matters contained in the publication did not have their endorsement. This defence provides an important safeguard to ensure that those unaware of the content of the matter they are disseminating are not wrongfully prosecuted. Clause 3 provides the power for a constable to issue a notice. We have discussed that clause at great length. A person who receives such a notice must ensure the offending material is no longer available to the public within two working days. If he fails without reasonable excuse to comply with the notice, he will be deemed to endorse it. Those defences provide that a person who receives a notice under Clause 3 will be responsible for repeat statements—statements that are the same as the one to which the original notice related—unless he can show that he had taken reasonable steps. That is so necessary because things can be taken down from the Internet in minutes, but they can be put back up in minutes, too. You could have a situation where things are taken off and put back on with great rapidity. The effect of this new clause would be to place only an evidential burden on the defendant. In other words, the defendant would only have to adduce sufficient evidence to put a defence or Clause 3(5) in issue for the prosecution to have to prove beyond reasonable doubt that the defence was not made out. There are significant differences from the evidential clauses under the 2000 Act, and these. Whether or not the burden of proof should be placed on the defendant is always a difficult issue. In the case that a burden is placed on the defendant, it must be assessed to ensure that it does not breach Article 6 of the ECHR, which guarantees the right to a fair trial. It is proper and fair for the defendant to bear the burden in these circumstances. Placing the burden on the defence is fair and reasonable for a number of reasons. First, endorsement is not an element of either defence. Therefore they are aimed at an exception to the offence. Secondly, whether or not a person endorsed a statement, or it expressed his view, is a matter within his particular knowledge. Whether a person examined a publication, or intended it to be useful to terrorists, is also within his particular knowledge. Finally, the defendant is best placed to bring forward evidence of how he runs his electronic service and show that material on it did not have his endorsement. For example, the defendant will be able to bring evidence of disclaimers, the amount of material on the service, and whether material is subject to editorial or sifting processes. All those issues will be peculiarly and particularly within the defendant’s knowledge. Placing a burden on the defence, in Clause 3(5), is also fair and reasonable for a number of reasons. First, the steps a person took to prevent repeat statements appearing are within his particular knowledge. Secondly, the process whereby a person becomes liable for repeat statements is a fair one. The reversal of the burden in any particular offence is not a small matter. It is not novel, however. The noble Lord, Lord Goodhart, has already acknowledged that. Section 18 of the Terrorism Act 2000, which Parliament passed only five years ago, creates the offence of money laundering of terrorist property, and provides that the defendant prove that he did not know, and no reasonable cause to suspect, that terrorist property was involved. That is a similar provision to those before us today. It will still be required for the prosecution to prove that a statement was published, or a publication was disseminated, much in the same way that Section 18 of the Terrorism Act requires the prosecution to prove that the facilitation of money laundering has taken place. In the case of Section 18 of the Terrorism Act, the prosecution must prove that property involved in the conduct was terrorist property. In much the same way, the prosecution will have to prove that a statement or publication was either encouraging terrorism or, in the case of a publication, wholly or mainly of the purpose of being of use to terrorists. The defendant is best placed to prove whether he did or did not endorse a publication and to make that clear in all the circumstances; and to prove that he did not endorse a publication on the balance of probabilities is not, if I may say respectfully, an onerous or difficult undertaking if he truly did not endorse it. However, it is a significant undertaking for the prosecution, to whom the facts will not be readily available. So accepting the amendment would make the defences to the offences of encouragement to terrorism and dissemination of terrorist publications too easy to establish. It is important that we create effective offences that are capable of prosecution, otherwise we will not be able to tackle the evil of those who create a climate in which violent acts of terrorism are more likely to occur. We have often discussed the importance and usefulness of law, but if we are to have these offences, they must have some teeth and some utility. It would be futile if we were to produce legislation that would disable us from dealing with some of the pernicious material that is currently being disseminated to our great detriment. In conclusion, it is right that I should invite the Committee to consider that Clauses 1 and 2 were extensively debated in the other place. They were voted on more than once and perhaps I may respectfully suggest that we need to look carefully and seriously at these matters in seeking a conclusion. We absolutely understand the concerns that have been expressed and I have indicated the ways in which we intend to deal with them, but the burden placed in relation to these specific offences is appropriate—it is the balance of probabilities, and it is a burden that could be discharged without too much difficulty by those who would face charges of this nature. On that basis, I invite noble Lords not to press their amendment. I would go so far as to invite them not to bring them back, but I imagine that I will get a fairly dusty response.