Counter-Terrorism and Border Security Bill

Baroness Hamwee Excerpts

Committee: 1st sitting (Hansard - continued): House of Lords
Monday 29th October 2018 Lords Chamber

[Lord Rosser (Lab)]

In Clause 4, new Section 58B, entitled “Entering or remaining in a designated area”, states that:

“It is a defence for a person charged with an offence under this section to prove that the person had a reasonable excuse for entering, or remaining in, the designated area”.


Under Clause 4, the burden of proof would appear to be clearly on the person charged with the offence, not on the prosecution to prove the guilt of the individual charged. The Government have said that that is not the case and that once the reasonable excuse defence has been raised, the burden of proof is on the prosecution, as laid down in existing legislation—Section 118 of the Terrorism Act 2000, which would still apply.

Even with that being the case, it nevertheless appears odd that a new section should say something incorrect: that the person charged with the offence of entering or remaining in a designated area has to prove that they had a reasonable excuse for being there, rather than the prosecution having to prove that they did not have a reasonable excuse. Our amendment would rectify this apparent anomaly by removing the Bill’s requirement for the person charged to prove they had a reasonable excuse as their defence, and instead make it a defence for the person charged simply to state that they had a reasonable excuse for entering, or remaining in, the designated area.

If the wording of the amendment does not find favour with the Government, I hope that its intention does and that the Government will agree to come back with an amendment of their own to new Section 58B at Report. We surely cannot agree to a clause which says the opposite of what is intended and is in apparent conflict with the terms of the legislation. I beg to move.

[Baroness Hamwee (LD)]

Perhaps I can ask both the noble Lord and the Minister a question: first, one to the Minister. Is the requirement for proof found in any other provision for reasonable excuse? I have been looking during the past few minutes; I could not find an example, but I did not get my iPad out to start reading through the whole of the Terrorism Act.

Secondly, I see the attraction of the term “state”. On who has to show what and in what order, we have been referred to Section 118 of the Terrorism Act. The terminology of that is “adducing evidence”. I am not sure whether the term “state” used by the noble Lord, Lord Rosser, is intended to be the equivalent of “adduce evidence”.

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, as we have discussed, the offence of entering or remaining in a designated area, which would be inserted as a new Section 58B of the Terrorism Act 2000 by Clause 4, is subject to a reasonable excuse defence. We have already debated the circumstances which might give rise to a reasonable excuse and how these should be catered for within the Bill.

Amendment 18 addresses a different aspect of that provision: the question of how much the evidence is required to establish a defence to the new offence. Related to this is the question of whom the evidential burden is placed on. Section 118 of the 2000 Act sets out how the evidential burden applies to a number of defences to criminal offences within the 2000 Act, including the new designated area offence.

The noble Lord, Lord Rosser, is concerned that the current drafting of new Section 58B(2), which contains the defence to the designated area offence, is out of step with the existing provision in Section 118 of the 2000 Act and will place a greater burden on defendants to make out a reasonable excuse than is envisaged by Section 118.

I understand and respect the noble Lord’s wish to ensure that defendants facing a charge under Section 58B are not placed in a worse position than those charged under other offences with a similar reasonable excuse defence. However, I hope that I can allay that concern and provide a clear assurance that this will not be the case if I explain how Section 118 interacts with the defence to the new Section 58B offence.

The wording used in the defence, which refers to a defendant proving that he or she had a reasonable excuse, is the exact same formulation used elsewhere in various defences to offences contained in the 2000 Act, including the defence to the Section 58 offence amended by Clause 3. It is vital to recognise that this reference in the defence to “prove” should not be read on its own; rather it is subject to the operation of Section 118, which makes further provision on what is required to prove a defence in this context.

Specifically, Section 118 provides that if a defendant,

“adduces evidence which is sufficient to raise an issue with respect to the matter”—

the matter that has to be proved under the wording of the defence—

“the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not”.

This, together with relevant case law, has the effect that if a defendant puts forward sufficient evidence to reasonably support a suggestion that he or she has a reasonable excuse, then the burden of proof shifts to the prosecution to disprove that defence, which it must do to the normal criminal standard—beyond reasonable doubt. If the prosecution fails to do so, then the jury must assume that the defence is made out.

The precise extent and nature of evidence required on the part of the defendant to invoke the defence in the first instance will be a matter for juries to determine in individual cases. Parliament has set a threshold which is not particularly high; all that is needed is,

“evidence which is sufficient to raise an issue with respect to the matter”.

In practice, a trial judge would be cautious to rule out any proposed defence unless it was plainly incapable of being judged by a jury as a reasonable one. In relation to new Section 58B(2), the evidential burden placed on the defendant will not be any greater than that required in relation to any of the other offences to which Section 118 applies. Furthermore, were Section 118 to continue to apply to new Section 58B(2), the amendment would have no impact in practice. Whether new Section 58B(2) refers to the defendant stating or proving the defence, under Section 118, it will still be for the jury to decide whether the prosecution has disproved the defence beyond reasonable doubt.

--- Later in debate ---

[Earl Howe]

My Lords, my noble friend is quite right. “Prove” is used in some six other sections of the 2000 Act, including Sections 57, 58 and 58A, so it is not inconsistent with the generality. However, as the noble and learned Lord has picked this out, I can do no other than to take the point very seriously, and I undertake to do so. If he will suspend his scepticism for a moment, I want to make the point that, in addition to creating an inconsistency between the designated area offence and others with a similar reasonable excuse defence, this would also unsettle a well-established legal position with which the courts and prosecutors are very familiar, and on which there is clear case law.

I very much hope that, on this basis, the noble Lord will be content to withdraw his amendment, subject to the undertaking that I have just given.

[Baroness Hamwee]

Before the noble Lord responds, I am not sure whether I heard the Minister correctly. It sounded as if he said that the requirement for proof elsewhere was proof on behalf of the prosecution. I may well have misheard him, but I am making the point now because that would not be an answer to this point, which is about proof by the defendant.

[Earl Howe]

My Lords, if I misspoke or misread, I apologise. I was seeking to say that, as long as a defendant puts forward sufficient evidence to reasonably support whatever suggestion he is making—that he has a reasonable excuse—then the burden of proof shifts to the prosecution to disprove that to the criminal standard.

--- Later in debate ---

[Lord Anderson of Ipswich]

I thank the Minister for his thoughtful response. It made me wish that we had had a full consultation on this novel offence prior to the introduction of the Bill, or at the very least that we had not seen it introduced to the Bill at such a late stage. However, we are where we are. I concede nothing but will consider carefully what the Minister has said.

[Baroness Hamwee]

Before the noble Lord withdraws his amendment, does he share my concern about the creation of a provision where the boundaries are so woolly and grey? His amendment would have the benefit of being quite clear about proscribed organisations—everyone would know where they were. Essentially we have heard the Minister say that the Executive and the agencies that support them will know things that the rest of us do not know and will stop travel in a situation that they cannot necessarily describe. I am not entirely sure how in that situation Parliament can scrutinise the decision through the procedure to which we have been referred.

--- Later in debate ---

Debate on whether Clause 4 should stand part of the Bill.

[Baroness Hamwee]

My Lords, we have debated Clause 4 pretty thoroughly. I will make just a couple of points and ask a question to add to the agenda that I suspect we will come back to at the next stage.

I make my two points on behalf of the JCHR. There is concern that Clause 4 criminalises conduct that is not in itself wrongful or inherently criminal in nature. That adds to the previous point made by the noble Lord, Lord Anderson. It attracts a potentially very high penalty. Secondly, the question of boundaries of territory under the control of terrorist organisations—or, more widely, places where there is concern about British citizens going—is one of not just agility but clarity. It may be difficult to designate areas with sufficient clarity for citizens to regulate their conduct accordingly.

My question concerns the exception that no offence is committed if,

“the person is already travelling to, or is already in, the area … and … leaves the area before the end of the period of one month”,

after the notification. The Government have clearly thought hard about this and realised that people may be caught in a difficult situation. Have they thought about how people will be told that if they stay beyond a month they are committing a criminal offence? It may be that the thinking has not gone that far, but given the indication that the Government have tried to put themselves, at any rate in this provision, into the minds and the shoes of those who may be affected, I am interested to know if they have thought through the practicalities.

--- Later in debate ---

[Earl Howe]

My Lords, it is probably best if I write to the noble Baroness in response to her specific questions. The broad answer is that we have thought of the practicalities. As regards informing people who are already in the designated area that it has been designated and that they therefore have 28 days to leave, there would be FCO travel advice that would almost certainly have pre-existed the designation. The regulations would be given significant publicity, including as part of the requested debate of the designation regulations. There would be a notice on the government website and we would consider other methods of publicity depending on the area being designated.

On the question of the noble Lord, Lord Stunell, about innocent people who have already been caught up in events and the situation within a designated area, the reasonable excuse defence would kick in. As we said in our earlier debates, where it is perfectly obvious that someone is in a designated area for an innocent reason, it is almost unthinkable that the authorities would spend time trying to make a case against them. Their reasonable excuse would be advanced and the circumstances of the case, if they are innocent, would be obvious from the outset. As I have said, we have had the reasonable excuse defence in place for 18 years and, as far as I am aware, there have been no instances of innocent people being arrested or convicted.

That is as far as I can go at the moment, although I am conscious that I have not completely covered the issues raised. However, I will write and copy my letter to all noble Lords who have taken part in this debate.

[Baroness Hamwee]

My Lords, when the Minister writes, could he confirm that the “one month” in new Section 58B(3)(b) is 28 days? He said 28 days; the wording is “one month”. I am sure somewhere we are told whether it is a calendar month or 28 days, but perhaps he could let us know.

[Earl Howe]

I must correct myself. I did not mean a lunar month; I meant a calendar month.

[Baroness Hamwee]

So it could be different depending on the month.

Clause 4 agreed.