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Terrorism Bill

moved Amendment No. 61:"After Clause 4, insert the following new clause—"    ““DEFENCES (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), 2(8) and (9) and 3(5).”” The noble Lord said: My Lords, this amendment, which is again a significant amendment, concerns the special defences that are provided in Clause 1(6), Clause 2(9) and Clause 3(5). I have accepted the various changes that the Government have made to these amendments, but in Committee I argued that they were unnecessary if an intent test was applied, whether or not they were combined with a—I apologise to the House, I was reading from the wrong page. Amendment No. 61 concerns the standard of proof where legislation requires the defendant to prove something as a defence. The normal rule is that the defendant must prove the facts that he or she is required to prove on the balance of probabilities. However, where an Act so provides, it is possible to impose a lower standard of evidential burden. If a defendant shows that there are arguable grounds for his defence, the burden shifts back to the prosecution to disprove that beyond reasonable doubt. That was done in comparable circumstances in Section 118 of the Terrorism Act 2000. Recklessness is, as I argued earlier today, an unsatisfactory ground for conviction in these cases. The real test will be in relation to the relevant provisions in Clauses 1 and 2 over the defence that the defendant made it clear that the publication did not express his views. That means that it will be necessary to look at the disclaimer—using disclaimer in the broad sense, including not merely formal disclaimers but any equivalent which has been published—along with the overall tone of the publication, and so on. The dispute on whether a disclaimer or other material is enough to show clearly that the statements did not express the defendant’s view is objective, not subjective. Therefore, where there is some kind of disclaimer, it should be for the prosecution to show that it is not clear enough. It is not for the defendant to show that it was. This is a case where making the burden of proof evidential is necessary and essential. In this case, these defences are going to be of great importance so long as the recklessness test remains in the Bill, as it clearly will, since they will be the only way out in a potentially large number of cases where it is possible to say that the material one has been putting out could encourage terrorism among people who were likely to be vulnerable to that encouragement. In those cases, such a defence will be important; for example, to all the major media outlets—both broadcast, like the BBC, and press—that may want to do things which they are well aware could technically cause support or encouragement for terrorism among some people. I believe, therefore, that it is essential that the test be made a reasonably low one. Once the defendant has produced some grounds for saying that it does not represent his views—and that he made it clear that it does not—then it should be for the prosecution to show that there is no sufficient clarity and that the offence has, in fact, been committed. I beg to move.