Lord Lloyd of Berwick: I am not happy with this question being dealt with as part of a defence. I think that this is possibly the point which the noble Lord, Lord Eatwell, was worried about. Why is it not possible to catch those whom the Minister refers to as culpable by inserting in the substantive part of the clause, and not as part of the defence, the mental element of intention? That would enable you to catch those who are culpable and would let off those who are not. Why does it have to be done by way of a defence?

Baroness Scotland of Asthal: It is because of the way in which these issues have arisen. Having been intimately involved in reading the documents produced by the various committees of this House and the information we have from the reports of the noble Lord, Lord Carlile of Berriew, the noble and learned Lord is all too familiar with the fact that a lot of material is being disseminated and that a lot of it is terrorist material. A lot of that material has the ability to encourage others to commit and to help others to commit acts of terror. That is a mischief to which we have to address ourselves.

Once that material has been disseminated and those who are responsible on our behalf for dealing with this matter in the criminal justice system have those items in their possession, it is proper for them to make inquiry in the way that we have provided. We think it is appropriate for there to be a defence in relation to this to distinguish those who legitimately have this material for the purpose of academic and other study and those who do not—who want to use it to encourage others to commit acts of terror. That is a mischief to which the Government have been very clear they want to direct their attention, have been very clear that they want to stop and have been very clear that they want to do it in a proportionate way. That is to enable those who are not culpable to have proper defences, but just as importantly to enable those who are culpable to be caught—it is part of our job. If I can turn—

Lord Eatwell: I am terribly sorry but I really do not understand the content of the noble Baroness's answer to the noble and learned Lord, Lord Lloyd. Perhaps the following question will help. Is it the will of the Government that persons should be prosecuted who commit the offences listed in Clause 2 unintentionally?

Baroness Scotland of Asthal: Clearly it is not. That is why we have set out the defences in Clause 2, as I have
 
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just indicated. That is why we have listened. That is why I propose to make amendments. That is why we are amending Clause 2(9). We have already referred to further amendments because we do not intend to catch those who should not be deemed to be culpable in this regard.

Lord Thomas of Gresford: With the greatest respect to the Minister, the question of the noble Lord, Lord Eatwell, was whether the people concerned should be prosecuted. The defence does not arise until they are prosecuted. Does a person have to go through the prosecution process, and when the prosecution case has been made out produce his defence? Surely not. That is the whole point of including intent as an ingredient of the offence and not leaving it until late in the case.

Baroness Scotland of Asthal: I know, because the noble Lord is still in practice, that he is very conversant with the way in which these issues are now prosecuted. The noble Lord will know that before a charge of any seriousness is made the CPS has to look at the evidence, the nature of what is said and the possibility of charging or not charging. In those circumstances one looks at all the circumstances of the case. So it will be perfectly possible for the Director of Public Prosecutions to decide which cases should or should not be charged and which cases should or should not be prosecuted. The totality of the offence and the defences are looked at before charge.

Lord Kingsland: I wish to follow up what I think is a very important point that has been made by the noble Lord, Lord Thomas of Gresford. Of course, in undertaking this analysis, the CPS would have to consider, on the basis of this offence, only the actus reus of the offence. It would not have to consider the mens rea because there is no requirement for a mens rea under Clause 2. So the point of the noble Lord, Lord Thomas of Gresford, is indeed extremely important. The fact of the matter is that a wide range of people could be prosecuted simply because they had committed the actus reus but not a mens rea, and they would have to fall back on a statutory defence in court. Why should they be in court in the first place if they did not intend the offence of dissemination?

Baroness Scotland of Asthal: Let us be absolutely clear about this. In relation to prosecutions it is the duty of those who prosecute to look at all the facts of the case. The changes that we have made in the past year mean that once the police have collected all the material and the circumstances are known, the CPS has to look at those circumstances and at the totality of the information and decide whether to charge. We have made it plain—I have made it plain repeatedly from this Dispatch Box—that it will be the duty of the Director of Public Prosecutions to consider which cases should or should not be prosecuted. That onerous duty—and I know that each person who has held that post has discharged it with integrity and honour—is to see whether all the circumstances justify
 
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a prosecution. We have all agreed that such prosecutions would be few and far between and will be looked at with great care. Those circumstances should be known before a charge is laid and it will be possible to look at those issues properly. It is simply not right to suggest that this would not be an appropriate way to deal with this.

Lord Lyell of Markyate: Will the noble Baroness please look at this again, because there may be two misunderstandings? The first question that has been at issue in this extremely important debate is whether the prosecution should have to prove intent in these circumstances. In my opinion they should have to do that and nothing that the noble Baroness has said has indicated why it should be left to the librarian or other person to prove their innocence. If she has a good explanation, no doubt she will give it.

The second point, which I have heard several times in debates on this and other criminal justice matters, is that because such a case can be brought only with the consent of the Director of Public Prosecutions, the Government seem under the impression that the DPP will personally look at these cases. That is not what those words mean. If a Bill or Act of Parliament states that such a case must be brought only with the consent of the DPP, it means that it must be prosecuted by the Crown Prosecution Service. That is not the same as saying that it must have the consent of the Attorney-General, when one would expect him or the Solicitor General to be personally involved. It would, I hope and expect, be a fairly senior Crown prosecutor, and in any very serious case I would hope that the director would apply his mind, but it is not what those words in the Bill actually mean.

It is important that unless the Government can show why there will be special circumstances exonerating the librarian or academic or whoever, the intent must be proved by the Crown. Having listened carefully to the noble Baroness, who is always enormously courteous and helpful, I have not heard that reasoning explained.

Baroness Scotland of Asthal: The defendant, if he is charged and the matter comes before the court, would have to prove his defence on the balance of probabilities, and the Crown would have to prove beyond reasonable doubt that the offence was carried out. The noble and learned Lord, Lord Lyell, is correct to say that the Director of Public Prosecutions would not deal with each and every case, but the noble and learned Lord knows that due to the special difficulty and nature of certain offences, those matters are dealt with not only by very senior members of the Crown Prosecution Service. Often the director will look at the matter himself when it is delicate and/or specialist. I can hazard a guess—I am sure that the noble and learned Lord, Lord Lyell, will agree—that it would be unusual for offences of this nature, which we all recognise will be few and far between, not to receive the attention not only of a very senior CPS lawyer, but of the director himself. These cases are very rare and their importance is never underestimated. I am
 
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therefore confident that these sorts of cases will receive the highest quality attention that the CPS and, indeed, the director is likely to have.

Lord Goodhart: Does the Minister accept that the real danger is not so much wrongful prosecutions, which probably would be few and far between, but the general chilling effect that this Bill will have, not only on libraries and universities but on all sorts of organisations, in the knowledge that they face the risk of a charge and may be prosecuted if the DPP decides to go ahead?

5.30 pm