---

Terrorism Bill

moved Amendment No. 11:"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)(b), 2(7)(b) and 3(5).”” The noble Lord said: My Lords, the amendment relates to the standard of proof on matters that have to be proved by the defendant. A defendant is never required to prove anything beyond reasonable doubt, but there are two possible standards that a defendant may be required to meet. The higher of the two is that the defendant must prove his or her case on the balance of probabilities. The lower level is that there is what is known as an evidential burden of proof; that is, if the defendant produces enough evidence to raise an arguable case, the burden shifts back from him or her to the prosecution to disprove that defence beyond reasonable doubt. The lower standard—simply having to show an arguable case—has been applied in a number of terrorist defences; for example, the evidential burden of proof applies to seven different sections of the Terrorism Act 2000 by virtue of Section 118 of that Act. Requiring a defendant to prove particular facts as part of his or her defence, of course, conflicts with the general presumption of innocence and must, therefore, be used only with great care and when really necessary. I accept that in some circumstances where the facts are in the particular knowledge of the defendant, requiring the defendant to give evidence of those facts may be justified. But a reverse burden of proof should not be used beyond that. This amendment applies to three provisions. The first two apply respectively to Clauses 1(6)(b) and 2(7)(b), which are similar. They both provide that it is a defence for the defendant on a charge of publishing or disseminating terrorist statements to show that what was published or disseminated did not represent the defendant’s own views and, furthermore, clearly did not represent those views. It can be argued that the first issue—that the statement did not represent the views of the defendant—is wholly within the knowledge of the defendant and, therefore, requiring him or her to prove that on the balance of probabilities is acceptable. But the second issue—was it made clear in the context that they did not represent the defendant’s views—is different. Let us look, for example, at a magazine which publishes an article which is sympathetic to the terrorist acts of Hamas. The magazine contains an article also which puts the contrary view. The magazine is prosecuted and the prosecution says that it has been acting recklessly. The publishers of the magazine satisfy the court that they do not agree with the article which is sympathetic to Hamas and that that article does not therefore represent their view. But the question arises: have they made that clear? That seems to be to a large extent an objective test. It depends not on the views of the defendants but on the likely reaction of readers, which is not something that is in within the specific knowledge of the defendants. I believe that it should be beyond doubt that once the defendants have shown what steps they took to make clear their disagreement with the views expressed in the article, it is for the prosecution to show that those steps were insufficient. The third clause to which this amendment applies is Clause 3(5). This arises out of the problem of repeat statements; that is, where a blocked statement reappears in the same form through the same Internet service provider, which is very difficult to prevent. It is a defence under the Bill to show that the Internet service provider has taken every step it reasonably could to prevent a repeat statement being transmitted. It is reasonable to require an Internet service provider to give evidence about what steps it took. But the question of whether it should have taken further steps is technical, because it is a matter of having to tell the court what other steps might have been available to be taken, and objective, because it is a test of reasonableness. The burden of showing that the ISP could reasonably have taken further steps must once again be on the prosecution. I accept, reluctantly, that it is legitimate to require the defendants to explain their views, or what steps they have taken to publicise those views or to prevent repeat statements being published. But it is wrong to require a defendant to prove matters which may not be within his own knowledge and may be objective in their application. The amendment aims to prevent what I believe would be an injustice and is inconsistent with the rules of our criminal process and the need to prove the guilt of the defendant. Any reverse burden of proof should be limited only to those elements of the offence which are primarily within the knowledge of the defendant and should not go beyond that, as the Bill now does. I beg to move.