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Lord Bassam of Brighton: I am grateful to the noble and learned Lord, Lord Cameron of Lochbroom, for his amendment because it enables me to explain Clause 4 in greater detail. As has already been explained, Clause 3 does not create a new offence or give the police the power to remove material from websites. Rather, it provides a means by which the police can serve notices on those who host information on websites requiring them to remove or modify statements which the police reasonably believe encourage terrorism or are useful in the commission or preparation of terrorist activity.

Under Clauses 1 and 2, which create the offences of encouragement to terrorism and dissemination of terrorist publications respectively, a person who provides an electronic device such as a website host has a defence to the offences in those clauses if he can show, among other things, that a statement or publication did not express his views and did not have his endorsement. It is an element also of the defence in Clause 2(8), which applies whether or not a person is providing or using an electronic service, that the matter in the publication did not have the defendant's endorsement.

The effect of Clause 3 is to deem a person providing an electronic service to have endorsed a statement if he has received a notice under Clause 3 and has failed to comply with it. If the person is accused of an offence under Clause 1 or 2, the effect of Clause 3 is that he cannot take advantage of the defence of non-endorsement in Clauses 1 and/or 2. These notices require that the person on whom the notice is served ensures that the information is not available to the public within two working days of receipt of the notice. Previously, the text referred only to "days", but the Government changed it to "working days" to make it clear that people who receive these notices should not be penalised if they fail to respond over weekends. Clause 3 does not create any new offences; rather, it
 
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provides that if a person fails to comply with a notice which has been served, he will no longer be able to argue that material on a website does not have his endorsement and therefore will not be able to take advantage of the defences in Clause 1(5) and Clause 2(8) or (9).

Clause 4, to which the noble and learned Lord's amendment relates, sets out the method by which a notice may be served. It simply provides that a notice may either be served in person to the individual to whom it relates or may be served by recorded post or delivery. The use of the postal service in the serving of a notice is not a new provision. It is an accepted fact that the postal service is a trustworthy means of transmitting legal documents and notices. I remind the Committee that all sorts of legal documents, from summonses and notifications of legal duties such as jury service right through to electoral polling cards, are delivered safely by post.

The amendments would remove the possibility that the police may issue a notice under Clause 3 by recorded post, which would create a disparity between serving a notice under this Bill and other notice-serving provisions that exist. It would also significantly reduce the flexibility of such a system, and could foreseeably increase the cost of doing so, requiring that a constable is sent on lengthy trips to serve a notice that could far more efficiently and cost-effectively be delivered by recorded post.

I contend that these amendments could create an illogical disparity between notices served under Clause 3 and any important legal notices served under other legislation. There appears no logical reason for restricting the issue of notices in that way, and precedent stands against it. So on those terms, I suggest that the noble and learned Lord withdraws his amendment.

Lord Cameron of Lochbroom: I am grateful to the Minister for giving that explanation, but I am not entirely content with it. This is all to do with trying to prevent material being published on the Internet, so it is important that steps should be taken as soon as possible. It appears to me, with respect to what has been said in reply to these amendments, that the best way of securing that that is done quickly and efficiently is to get the notice delivered to the persons who can take the steps as soon as possible to bring the transmission to a halt. Those are the persons who are named as individuals in the clause—the secretary of a body corporate in subsection (2), the partner of a firm in subsection (3) and a member of the governing body of an unincorporated body or association in subsection (4).

I shall study the reply, but I hope that the Government do not look unfavourably on what I have said. These are not just the ordinary notices that are given to acquaint somebody of something by way of recorded delivery; it has a much more proper purpose, which is to bring the risk of such transmissions to an end and to inform the responsible persons of the possibility that they are about to transmit, or are transmitting, unlawfully terrorism-related articles,
 
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records or statements. In view of the reply, I am content at this stage to look again at what has been said and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 71 to 73 not moved.]

Clause 4 agreed to.

9 pm

Lord Goodhart moved Amendment No. 74:


"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(7), 2(8) and (9) and 3(5)."

The noble Lord said: Amendment No. 74 is very important. Its purpose is to ensure that special defences under Clauses 1 to 3 of the Bill require an evidential burden of proof only and not a full burden of proof. That is a second best to putting an intention test into Clause 2, in which case this amendment would be unnecessary. Without either of these, we are in very deep water.

In general, when a defendant is required to prove something as a defence, he has to prove it on the balance of probabilities. Sometimes, however, the standard of proof can be reduced so that all the defendant has to do is show that there is an arguable issue. If so, the burden then switches back to the prosecution to disprove beyond reasonable doubt the claim raised by the defendant, and that is what is known as an evidential burden.

There is an important precedent for this in Section 118 of the Terrorism Act 2000. In the case of that Act, the Government accepted that there should be an evidential burden in several cases. They introduced what is now Section 118 in Committee in your Lordships' House.

Section 118 covers a number of offences under the Act. Section 12 makes it an offence for someone to arrange a meeting that he knows is to be addressed by a person who belongs to a proscribed organisation. Under Section 12(4), it is a defence for the defendant to prove that he had no reasonable cause to believe that the speaker would support the proscribed organisation or its activities. The maximum penalty for a breach of Section 12 is 10 years, so this is obviously regarded as a serious offence.

Under Section 39 it is an offence to carry out acts likely to threaten a terrorist investigation. Under Section 39(5) it is a defence if the defendant did not know, and had no reasonable cause to suspect, that his acts were likely to affect a terrorist investigation. The maximum sentence for that is five years—again, a serious offence.
 
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Under Section 54 there is an offence of providing or receiving weapons training. It is a defence to that for the defendant to prove that the action was wholly for a purpose other than terrorism. That section carries a 10-year sentence. Section 57 makes it an offence to possess a terrorist article. It is a defence to prove that possession was not for a purpose connected with terrorism. The maximum sentence is 10 years. Section 58 makes it an offence to collect information of a kind likely to be useful to terrorists. It is a defence that the defendant had a reasonable excuse for collecting that information. The maximum sentence is 10 years. There are similar provisions in Sections 77 and 103 of the Terrorism Act and in Northern Ireland legislation.

Amendment No. 74 applies the same principle to defences under this Bill. The first offence is under Clause 1(7). Following the Government's acceptance that offences under Clause 1 should be limited to cases of intentional subjective recklessness, I believe that Clause 1(7) is now otiose—as I said yesterday, though the Minister did not accept it—and I will discuss that no further. The remaining defences are those under Clause 2(8) and (9) and Clause 3(5).

Clause 2 covers dissemination of terrorist publications, an offence that requires no intent. Clause 2(8) provides a defence that the defendant had not read the publication and had no reasonable grounds to suspect it was a terrorist publication—which, incidentally, is an objective test; it is not open to the defendant to say that he was blind to what was going on—and the defendant must also prove that it did not have his endorsement.

Clause 2(9) provides a defence that the publication did not express the defendant's views or have his endorsement. Clause 3(5) is somewhat more complicated in its operation, and I will not try to explain it in detail, but it raises the same principle. Let me try to analyse what that principle is.

First, in the absence of an intention test in Clause 2, and subject to the specific defences in subsections (8) and (9), the offence of disseminating a terrorist publication can be committed by someone who does not know that what he is handling is a terrorist publication. Secondly, the risk is increased by the extreme width of the definition of terrorist publication and by the fact that whether any publication is a terrorist publication depends not only on its content but on the context in which it is disseminated and on the mental effect it is likely to have on the recipients rather than on the actual intention of the defendant. Thirdly, the offence carries a heavy penalty, a maximum of seven years' imprisonment. When you get into that category of case, it is I believe plain that people should be convicted of such offences only if they have a full mens rea.

The fourth aspect of the principle is that there are some circumstances, and I agree that the Terrorism Act 2000 was one, in which it is legitimate to require a defendant to explain his motives or actions rather than allow him simply to rely on silence. For example, someone who receives weapons training cannot under Section 54 of the Terrorism Act 2000 say, "You have
 
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to prove that I was there for a terrorist purpose". He has to provide an innocent explanation for his presence. But—the fifth point—if he produces an explanation that is not implausible, then under Section 118 it becomes the duty of the prosecution to disprove that explanation beyond reasonable doubt. If the burden of proof remains on the defendant to prove that explanation, there is a real risk of wrongful conviction, and more frequently people will be deterred by the risk of prosecution from disseminating legitimate information.

That is what we on these Benches fought for and obtained in the debates on the Terrorism Act 2000. That Act is an exact precedent for this Bill. The Government could of course avoid this problem entirely by accepting the intention requirement for Clause 2. But if they insist that they will not do that, I believe that they must at the very least accept that the burden of proof in special defences should be no more than an evidential burden of proof. If the Government will not accept either of those, then I believe they will face a real risk of wrongful convictions and the certainty of a chilling effect on legitimate discussion of issues relating to terrorism. It is more than likely that it will be held ultimately that this Bill is incompatible with the Human Rights Act. Why is it necessary in a democratic society that people should have to prove their innocence? I beg to move.


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