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Terrorism Bill

My Lords, I rise with a little trepidation as I have not taken part in this debate before. The House may know that I am deputising here for my noble friend Lady Scotland. As the noble Lord, Lord Goodhart, has made clear, this amendment relates to the defences in Clauses 1 and 2 of the Bill, including as they are applied by Clause 3. The House has debated Clauses 1 to 3 at length, and plainly I do not want to go back over that ground. It is right, however, to remind the House that this is an area where the extensive amendments which have been brought forward into Clauses 1 and 2 have done two things. First, they make it clear that the Government have been prepared to listen to the concerns expressed in Committee and to refine Clauses 1 and 2 to take account of those. I refer particularly to the acceptance that the test of recklessness should be subjective rather than objective. Secondly, flowing from that, the result is the heavy burden on the prosecution in each of these offences. It was always a heavy burden, but it is heavier still. In particular, when one looks at the offences of recklessness, the prosecution will now have to prove beyond reasonable doubt the criminal standard; not simply that it would be reasonable to be concerned about the risk, but that there were those aspects of the defendant’s own state of mind sufficient to justify subjective recklessness. It is important because one does not get into the defences under Clauses 1 and 2 until and unless the prosecution has proved that. I know that at an earlier stage the noble Lord, Lord Goodhart, indicated that the switch of evidential or legal burden was a poor substitute for changing the intent that was necessary, and that the House has not gone quite as far as he wanted on that occasion. It is right to say that although this is not limited only to intent, it is subjective recklessness which is the only addition to it. I also recognise that in these amendments the noble Lord accepts, in relation to Clauses 1 and but not Clause 3, that the elements in the defence should be treated differently. He accepts that, he said, reluctantly. I am not sure why he said that, but never mind; he accepts that a defendant should have to show whether he himself endorsed these views. He accepts that in relation to Clauses 1 and 2, and therefore the defendant will continue to bear the legal burden in respect of that element. His concern in relation to Clauses 1 and 2 is showing whether it was clear in all the circumstances that the statement or publication did not express the defendant’s view or have his endorsement. Under the amendment, the defendant would bear the evidential burden only in respect of this element; one needs to be quite clear what that means in practice. Having the evidential burden means no more than raising the issue, whereupon it is for the prosecution to prove—it may well do so before the defendant ever reaches the witness stand—that the defence is not made out. In previous debates, the question of whether a burden should fall on the defendant has been discussed. It is not a straightforward matter. The House is also well aware that ultimately it may be for a court to determine whether it is appropriate to have placed a legal burden on the defendant in the particular circumstances. What is being provided by the Government in these clauses does not prevent the court from taking that view. The Government’s view would be that it is perfectly right, appropriate, proper and compatible to place the burden in these circumstances on the defendant; but it would be ultimately for a court to say so. The noble Lord’s final remark was that this is contrary to principles and present law. If that were so to the extent that it made the trial unfair, that is a matter the court could deal with. I then look to why, in the Government’s view, it is fair and reasonable to place the legal burden on the defendants in these cases. I start with Clause 3(5). I was a little unclear about what the noble Lord said. I may have misheard him but I understood him to accept that it was reasonable that the defendant should have to prove what steps he had taken. But the amendment would take that burden away from the defendant because it applies to the whole of the defence in Clause 3(5), not just a part of it.