Counter-Terrorism and Border Security Bill

Lord Thomas of Gresford Excerpts

2nd reading (Hansard): House of Lords
Tuesday 9th October 2018 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I join the noble Lord, Lord Faulks, in his welcome to the noble and learned Lord and former submariner, Lord Garnier. I have a wonderful picture of the two of them as adolescents together discussing football and human rights over a pint. I welcome the noble and learned Lord’s strong expression of his belief in the rule of law and of freedom of expression. I am sure that we shall hear a lot more from him about that.

There are many aspects of this Bill that we shall no doubt consider in Committee, but I will confine myself to three. First, I consider Clause 1 to be unnecessary and a disproportionate interference in the right to free speech. Secondly, I want to emphasise the importance of private consultations with legal advisers. Thirdly, I have some comments about the proposed designated areas offence.

Clause 1 penalises the expression of an opinion or a belief that is supportive of a proscribed organisation. The state of mind of the accused must be that, in expressing that opinion, he is reckless as to whether a person is encouraged to support that proscribed organisation. There is already an offence, under Section 12(1) of the Terrorism Act 2000, of inviting,

“support for a proscribed organisation”.

As for hate preachers, Section 12(3) of the 2000 Act reads:

“A person commits an offence if he addresses a meeting and the purpose of his address is to encourage support for a proscribed organisation or to further its activities”.


The same words in that legislation appear in the Bill before us, so what lacuna does this new offence fill? It adds “reckless” to “purpose”, but “reckless” is a word that has caused difficulties in the past in defining its meaning.

Back in 1981, I argued the case for a Mr Caldwell against the Metropolitan Police Commissioner before the Judicial Committee of this House. Caldwell had in a drunken moment broken a window and set fire to a hotel. The flames were quickly extinguished and no serious damage was caused, but he was charged with the aggravated criminal damage offence of being reckless as to whether life was endangered. His defence was that he had been so drunk that he had given no thought as to whether life would be endangered and was therefore not reckless. The issue was whether recklessness should be judged objectively or subjectively. The problem with the subjective test is that the prosecution has to prove the defendant’s state of mind—that he foresees the risk of harm. The problem with the objective test is that it criminalises those who genuinely did not foresee a risk of harm, including young children, people whose mental capacity is impaired and indeed drunks. Lord Diplock in the Judicial Committee, contrary to my argument in favour of a subjective test, held that the defendant was reckless if he had not given any thought to a risk which he should have appreciated. At that time, the committee plumped for the objective test. It was not until 2003, in the case of R v G and Another, that my argument succeeded and the Judicial Committee, in a rare exercise of its powers, overruled Caldwell and decided that the subjective test was appropriate. The case involved two 11 year-old boys who had set fire to a wheelie bin; the fire spread to the roof of a Co-op store and caused £1 million worth of damage. They had given no thought at all to the risk that might be involved by what they did.

So what does “reckless”, under its current definition, mean in the context of Clause 1? It means that the prosecution will have to prove that the defendant foresaw the risk that the person to whom his opinion or belief was directed would be encouraged to support a proscribed organisation but nevertheless went on to express it. What does that add to the current criminal acts of speaking or writing with the purpose of encouraging or inviting such support? The use of “reckless” does not catch a person who does not realise the effect of his words on the listener or reader of a column. The test of recklessness is no longer objective.

Simply expressing your opinion is not enough, as the right reverend Prelate the Bishop of Newcastle’s apt quotation from Elizabeth I pointed out earlier. A person at Hyde Park Corner can say, “I believe in Scottish independence, and I think the best way to achieve this is through Scottish Dawn”, which is a proscribed organisation; perhaps that could also be said by someone from a Wee Free pulpit. That person would not be committing an offence under the proposed clause; he is merely opening the window into his soul, as Elizabeth I put it. If what he says is an invitation to join Scottish Dawn, he would commit an existing offence under Section 12(1) of the present Act. If his purpose in so speaking is to encourage listeners to join Scottish Dawn, it is already covered by Section 12(3) of the existing law.

My noble friend Lord Marks set out a number of tests, one of which asks, very appropriately, what mischief the clause is aimed at. In the Choudary case, the Court of Appeal considered whether Section 12 of the Terrorism Act offended against the European Convention on Human Rights. The court said:

“When considering the proportionality of the interference, it is important to emphasise that the section only prohibits inviting support for a proscribed organisation with the requisite intent. It does not prohibit the expression of views or opinions, no matter how offensive, but only the knowing invitation of support from others for the proscribed organisation. To the extent that section 12(1)(a) thereby interferes with the rights protected under article 10 of the Convention, we consider that interference to be fully justified”.


Clause 1 seeks to punish the expression of an opinion with up to 10 years’ imprisonment. I suggest to your Lordships, as I will argue in Committee, that it is a disproportionate interference in the right to free speech protected by Article 10.

I turn to legal professional privilege. Paragraph 26 of Schedule 3 mirrors Schedule 7 to the 2000 Act. Under paragraph 23(1) of Schedule 3, there is the right to consult a lawyer “privately … at any time”, but paragraph 26(1) states:

“A direction under this paragraph may provide that a detainee who wishes to exercise the right under paragraph 23”,


to consult a lawyer privately may, if the direction is made,

“consult a solicitor only in the sight and hearing of a qualified officer”—

that is, an eavesdropping officer. That direction may be made by a senior officer in certain circumstances, such as interference with evidence or the alerting of a person who is suspected of having committed an offence but has not been arrested for it. Maybe a tiny minority of legal professionals pass on illicit information—there are rogues in any profession. If caught, they will go to prison and be struck off or disbarred. The noble Lord, Lord Rosser, talked about the suggestion made in the other place of an approved panel of lawyers being set up to advise people detained under the Bill. I fully support that. I look forward to hearing more about it.

If criminal lawyers want to make a successful living, they need to get the truth from their client. There must be a firm platform on which to base a defence. Initially, the client might not be open with his own lawyer. He might tell lies through consciousness of guilt, fear or a misplaced desire to cover up for somebody else. Perhaps he says he cannot remember. But when his own lawyer rubs his nose in the evidence, the story frequently changes. It should be remarked that, of the cases that appear in the Crown Court, between 60% and 70% plead guilty, very largely due to this activity carried out by the defendant’s own lawyer. It is obvious that this sometimes subtle, sometimes vigorous process cannot take place in the presence of someone listening in from the investigating authority. The provision that appears in this schedule, as it appears in Schedule 7 to the 2000 Act, is contrary to the public interest in the wider sense.

I remember being in the Court of Appeal when we lost an appeal in a murder case. Afterwards, my client turned to me and said, “Well, now I’ll tell you the true story”. He gave me an account entirely consistent with the prosecution case, which would have provided him with a defence, but he had not told me and there was nothing I could do about it. It is important for people to realise that defence solicitors and barristers need to have professional privilege to see their client privately to carry out the sometimes rough interrogation of their own client, which can lead only to the proper result.

Finally, on Clause 4 on designated areas and the reasonable excuse defence, your Lordships should remember that, although the Minister, Ben Wallace, now says that a reasonable excuse will,

“cover persons entering or remaining in the designated area … for the purpose of providing humanitarian aid; to carry out work for a foreign government … or the UN; to work as a journalist; or to attend a funeral of a close relative”,

he said:

“It would be for the defendant to demonstrate that the defence applied. Once a defendant has raised the defence the burden of proof (to the criminal standard) to disprove the defence would rest with the prosecution”.


That is right, but there has to be some evidence to support the defence. It cannot be raised simply by argument, so a burden is placed on the defendant in these circumstances to explain why he was in the designated area. I agree with Rowan Popplewell of Bond and with my noble friend Lady Hamwee that there should be a system of pre-visit authorisation of people who wish to visit designated areas for a particular purpose. Nothing could be simpler to arrange and it could avoid unnecessary prosecution of a person.

There is much further to discuss as the Bill goes through.