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Lord Glentoran moved Amendment No. 20:

("Inferences and forfeiture orders


(" .--(1) This section applies where a person is charged with an offence under this Part.
(2) Subsection (4) applies where evidence is given that--
(a) at any time before being charged with the offence the accused, on being questioned under caution by a constable, failed to mention a fact which is material to the offence and which he could reasonably be expected to mention, and
(b) before being questioned the accused was permitted to consult a solicitor.
(3) Subsection (4) also applies where evidence is given that--
(a) on being charged with the offence or informed by a constable that he might be prosecuted for it the accused failed to mention a fact which is material to the offence and which he could reasonably be expected to mention, and
(b) before being charged or informed the accused was permitted to consult a solicitor.
(4) Where this subsection applies--
(a) the court, in considering any question whether the accused is guilty of an offence under this Part, may draw from the failure inferences relating to that question, but
(b) the accused shall not be committed for trial, be found to have a case to answer or be convicted solely on the basis of the inferences.

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(5) Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.").

The noble Lord said: My Lords, in moving the amendment, with the leave of the House I speak also to Amendment No. 21. The amendment is based on Clauses 108 to 111 which form part of Part VII, relating to Northern Ireland. I propose that the redrafted Clauses 109 and 111 should be inserted after Clause 64.

As drafted at present, Clauses 108 to 111 apply,

    "where a person is charged with an offence under section 11".

Clause 11 states:

    "A person commits an offence if he belongs or professes to belong to a proscribed organisation".

In the light of that the individual is considered to be a serious terrorist and comes within the provisions of Clauses 108 to 111. For the purposes of the amendment, I speak only to Clauses 109 and 111. Clauses 108 to 111 refer to proscribed organisations and persons belonging to them.

However, terrorism is more than proscribed organisations or organisations which might be proscribed. There may well be individuals who are per se terrorists. They do not necessarily have allegiances or alliances, other than perhaps the odd financial contract, to any of the world's terrorist organisations. Those individuals could be specialists in a specific field. They could specialise in doing extraordinary things on the cybernet. They could be specialists in communication activities of a sophisticated nature. They could be specialist murderers. In any sense of the word, they are terrorists.

I inquired in the Public Bill Office as to how an individual terrorist as opposed to a terrorist organisation could come within the scope of the Bill. It did not appear that he did. Therefore we propose this amendment which inserts the new clause as printed on the Marshalled List--I shall not read it; noble Lords have had the amendment for a day or two--after Clause 64, at the end of Part VI. Part VI relates to terrorist offences committed, presumably, by individuals. Clause 54 states:

    "A person commits an offence if he provides instruction or training in the making or use of"--

and there follows a list. Part VI lays down how an individual commits a terrorist offence under the Bill. That is good.

One of the issues about which I feel strongly is that we should not be talking about two or three different classes of terrorists. Part VII is an anomaly: it refers only to Northern Ireland or Irish terrorism. The Bill protects this nation against international terrorism from wherever it may come until such time as your Lordships and another place amend it or pass another Bill. I am anxious that because of inhibitions with regard to human rights, and so on, the Bill will not be strong enough; that we shall leave loopholes and will not make the best use of our experiences in particular in Northern Ireland, spilling over into this country, in legislating against terrorism.

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Clauses 109 and 111--they are rewritten in the amendment--are extremely useful and valuable in the fight against terrorism; otherwise they would not have been in the Bill in the first place. I can see no reason why Clauses 109 and 111 should apply to proscribed organisations and those within them but that another law should apply to those outwith currently proscribed organisations. That is mainly why I move the amendment.

When fighting terrorism, the terrorist knows no bounds. There is no Geneva Convention. Virtually no rules are accepted. We need to ensure that the security forces--they may be the police or specialist forces--have all the weaponry at their disposal that we can give them.

I can see occasions on which these provisions could be most useful. One of the most difficult things to do to a skilled terrorist, a specialist of the type at which the provisions might be aimed, is to arrest him. Unless one can operate within a Bill such as this, one must have evidence, a reason, for the arrest. I believe that if the amendment is agreed, your Lordships will have improved the Bill and increased the protection that it is able to give to the people of this nation against terrorism. I beg to move.

5.30 p.m.

Lord Lester of Herne Hill: My Lords, we hope that the Government will not be in favour of the amendments. One of the changes that the Government have made to the Bill, which we welcome, relates to Clause 118. They have placed the legal burden of proof on the prosecution; it must prove its case beyond a reasonable doubt. In doing so, they have made it clear that the Bill will fully comply with Article 6 of the European Convention on Human Rights, the presumption of innocence and the privilege against self incrimination, commonly referred to as the right of silence.

The effect of the amendments is to permit the drawing of inferences in relation to offences in Part VI as a result of a failure to mention material facts during questioning. If the amendments were accepted, apart from the complex burdens they would place upon judges and juries in attempting to give effect to them, they would create serious inroads into the right to a fair trial, including the presumption of innocence and the privilege against self incrimination.

Of course we all want to use effective means to combat terrorism, but one means that none of us wants to see introduced is a means that results in unfair trials, the miscarriage of justice and the kind of disrepute into which the criminal justice system would no doubt be brought if there were miscarriages of justice. For those reasons, we hope that the Government will not be in favour of the amendments because in our view they would be incompatible with the Convention rights under Article 6.

Lord Molyneaux of Killead: My Lords, I want to make one brief point. I agree with the noble Lord,

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Lord Glentoran, that, given the numerical increase in the number of terrorist groupings and then the further splintering of those organisations, we need to consider his amendment. I fear that we are about to enter a phase in which terrorists will be operating on a do-it-yourself, solo basis motivated by a grudge not against political parties, nations or governments but against someone of their own religious view. I have known of such cases and I am concerned about the numbers multiplying.

It is not even a case of being able to say, "Where two or three are gathered together", as is said in the Prayer Book. There does not need to be two or three; just someone with a burning desire to get at someone else. Whether there is one solo person or whether there are two or three people, we can be assured that they will be accorded a suitable title--the title which they claim themselves--whether Continuity or Real IRA.

However, I am afraid that the number of such organisations will multiply because there is money to be made. We have seen it happen in drug dealing and so forth and there are rich pickings for people who have the means--one or two guns--and the expertise which they obtained when serving in the larger organisations. They can pose a very real threat to society and to government. We need to project our thinking forward and to take the necessary measures. I can think of no better vehicle than this Bill which the Government have brought forward.

Lord Falconer of Thoroton: My Lords, the amendment would bring two of the "post-Omagh" provisions into Part VI of the Bill. The provisions referred to as "post-Omagh" were introduced in the special Sitting in the summer of 1998 in the wake of the Omagh atrocity in August that year. My noble and learned friend the Attorney-General described the post-Omagh provisions as pushing the law to its limits. We believe that we were justified in pushing the law to its limits and that we are justified in continuing to do so in order to deal with those people who still oppose the peace process.

However, we believe that those provisions remain necessary in response to that particular threat. As your Lordships are aware, they have been placed in Part VII of the Bill. That means that they extend only to Northern Ireland and that they are time-limited to five years, during which time they must be annually renewed by Parliament. We believe that that is the right balance.

We do not therefore support the inclusion of these provisions in the permanent UK-wide part of the Bill. They are a carefully targeted response to the particular problem of organisations opposed to the peace process in Northern Ireland. We see no basis on which they should be applied to other offences in the Bill. I therefore hope that the noble Lord will agree to withdraw his amendment.

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