Counter-Terrorism and Border Security Bill

Lord Rosser Excerpts

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

Moved by

[Lord Rosser]

18: Clause 4, page 3, line 10, leave out “prove” and insert “state”

[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”.

--- Later in debate ---

[Lord Rosser]

I thank the Minister for his response, other noble Lords who have participated in this debate and, not least, the noble and learned Lord, Lord Judge, for his intervention. There is an inconsistency and I think the Minister knows that in his heart of hearts. The defence for continuing with it seems to be that it appears in other places and in other parts of the 2000 Act, which seems a pretty lousy way of trying to defend an inconsistency. It is surely time to seek to put it right. My amendment takes out the reference to “prove” and puts in the word “state”. However, I would have no objection to the Government taking this away and agreeing to come back on Report with an amendment of their own which reflects the intention of this amendment. If the wording was at least the same as in Section 118, with its reference to,

“adduces evidence which is sufficient to raise an issue”,

there would then be a degree of consistency—as has already been said—between what is in the Bill and what is in Section 118 of the Terrorism Act 2000.

The Minister has kindly agreed to reflect further on this matter. I accept this, without commitment, and will await the outcome of that reflection. I hope he accepts that it is not really a defence of a clear anomaly to say that we are going to continue with it because it is repeated on occasion elsewhere. I beg leave to withdraw the amendment.

Amendment 18 withdrawn.