HC Deb 05 July 1973 vol 859 cc815-22
Mr. S. C. Silkin

I beg to move Amendment No. 14, in page 4, line 38, leave out from ' proved to the end of subsection and insert: 'as evidence of his possessing (and, if relevant, knowingly possessing) that article at that time; provided that if there is evidence that he did not at that time know of its presence in the premises in question, or if he did know, that he had no control over it, the court shall not convict the defendant unless it is satisfied that the offence was committed by him'. In my last remark on Clause 6 I welcomed the fact that the burden of proof in relation to that clause had by a Government amendment been returned to where it normally lies in a criminal trial. The purpose of this amendment is to try to produce the same in relation to Clause 7.

I say at once that I am not completely satisfied with the drafting of the amendment. But the House will be aware that drafting at very short notice was required in order to table the amendments in time for this stage of the Bill. If the Government were to say "We accept the principle and will put in our own drafting at a later stage" I should be more than happy.

Clause 7 is a startling change in the normal principles of criminal law. I referred to it in my speech on new Clause 1. The position under this clause is that anyone who is present in the same building, ship, aircraft or vehicle as a gun, ammunition or explosive, however remote he may be from where it is found and however little he may have to do with the existence or finding of it, is, from the mere fact that he is in the same building, vessel and so on, to be prima facie held to be guilty of the offence of possessing that article.

Though one sees the necessity for some such provision, as the Diplock Report explained, the way that it has been done in this Bill is a very startling change from that to which we are used. Once one has gone only that distance the burden is placed on the defendant to prove, in effect, that he was innocent. That is to say, either he did not know it was there—which in many cases will be by no means easy to prove—or that he had no control over the article.

Our amendment accepts the necessity for making a provision of this kind. But what it seeks to do in the end is to put the burden of proof back where it normally belongs, upon the prosecution. I hope the amendment fulfils that purpose. However, if it does not the Government can redraft it. I suggest to the Government that this is an important matter and an important question of principle, just as important as the one concerning their concession in their amendment to the previous clause.

Accordingly we want from the Government a clear undertaking that this point also will be considered with a view to the possibility—again I am not asking more than that—that at a later stage a proper amendment to change the burden of proof will be produced by the Government.

The Solicitor-General

This topic was the subject of a lengthy debate in committee. As the House will know, it arises directly from the Diplock Report, particularly an example given in that report. will quote paragraph 69. A striking illustration is provided by a case in which a gun was found in the bedroom in which three brothers slept. It was hidden under some male clothing on top of a chest of drawers. All three brothers were in the room when the gun was discovered by the police. All three disclaimed any knowledge of its presence. At the trial of the three accused the judge allowed the prosecution's case to go to the jury. None of the accused gave evidence in his own defence, so none could be cross-examined. Each elected to make an unsworn statement from the dock. It is a matter of no surprise that the jury convicted all three of them. The Court of Criminal Appeal set aside the convictions on the ground that there was in law not sufficient evidence against any one of the accused to justify his allowing the case to go to the jury That striking example is the foundation and basis for the clause in the Bill. There are similar, and in some cases more severe, provisions existing in legislation for this country such as the Prevention of Corruption Act 1916, which provides that upon proof of certain gifts having been made they shall be deemed to have been given corruptly unless the contrary is proved. That is rather more severe than the clause in the Bill, because the Bill says that the court may accept paragraphs (a) and (b) as proof of possession.

It is right to remind the House that when in those circumstances the burden shifts to the extent set out in the clause, it is nothing like the extent to which the burden rests upon the prosecution when it has to prove something either beyond reasonable doubt or to the court's satisfaction. In this case the burden upon the accused is to satisfy the court of the probability of that which the accused is called upon to establish.

If the court accepts the facts in paragraphs (a) and (b) as proof of possession in a particular case, the burden will shift to the defendant to show only that he probably did not know of, or had no control over, the offending objects in order to secure his acquittal. That seems a reasonable position, particularly when one bears in mind that striking example in the Diplock Report, which, unfortunately, stands not by itself but is hap- pening too commonly in Northern Ireland today.

Mr. S. C. Silkin

Before he sits down, would the hon. and learned Gentleman enlighten the House on this point? It seemed to me that the Diplock illustration would, if the clause were in the amended form which we suggest, be dealt with just as well as if it remained unamended. If the hon. and learned Gentleman does not agree with that, why not?

The Solicitor-General

Those who have been advising me upon this have, with the greatest respect to those who drafted the amendment, found it difficult to understand exactly what its consequences would be. In any event, we consider that the Bill as drafted would be more effective, and that is how we should prefer to leave it.

8.30 p.m.

Mr. McMaster

I make no apology for intervening. [Interruption.] I did not serve on the Committee, and as this is Report stage I feel that, as a Member who is concerned and as an Ulster Member, I might be allowed a word or two. I am rather upset that some hon. Members should think I am not entitled to speak on the amendment.

The tabling of the amendment illustrates yet again the unrealism in this House about the current state of affairs in Northern Ireland. If one studies the figures of crime, of those charged and those convicted, it is patently obvious that the ordinary rules of evidence are not adequate to deal with the situation. The Solicitor-General has read one example from the Diplock Report. There are other examples. All that a terrorist has to do when a weapon or explosives are found, apparently, is to refuse to give evidence. The onus of proof is then upon the prosecution. It is practically impossible to establish that the accused person was aware of the presence of the weapons and, therefore, is guilty. Unless one can shift the onus of proof on to the accused person to give evidence to establish that he did not know, if he refuses to give evidence at all he is entitled, under the existing rules, to the benefit of the doubt and he will be acquitted.

Many such cases have been cited to me in Belfast by my legal friends in which great trouble has been taken to secure the arrest and the bringing to trial of an accused person. This situation is an outrage which cannot be tolerated in present circumstances.

Mr. S. C. Silkin

I wanted to point out to the hon. Gentleman what I think he does not appreciate—I do not criticise him for that, because it is a question of drafting: that if the situation were as he described it and the defendant refused to give evidence, the amendment would do no harm whatever of the kind he has in mind.

Mr. McMaster

I am grateful for that point, which helps me. However, the amendment to some extent weakens the provisions of Clause 7 and thus helps the accused. I would say that there was no purpose in it unless it was to help the accused.

Because of the existing circumstances in Northern Ireland, it is very important that we should be particularly mindful of our prime duty, which is to protect the general public. Therefore, I cannot support any amendment, even though it does not go to the full extent of restoring the ordinary rules that apply in this country, which makes it in any way easier for the accused to escape conviction.

In other words, the extraordinarily severe—I say that advisedly—provisions, not only of Clause 7 but of the rest of the Bill, are necessary so that the public may be protected from the fanatical criminals who are carrying out their dastardly acts in Northern Ireland at such tremendous cost to the community. I feel that perhaps it is the argument of the end justifying the means.

In view of the earlier intervention of the hon. Member for Leeds, South (Mr. Merlyn Rees), may I say that I recognise the necessity for Opposition Members to question these rules. I do not imply in any way that by putting down these amendments and debating them they are seeking to undermine the Army, the police or the Government. Nevertheless, I also feel it my duty as a Member for a Northern Ireland constituency to speak out and express my feeling that these unusual provisions are unnecessary, and to draw the attention of the House to the ends to which terrorists, and particularly the Provisional IRA, are pre pared to go in Northern Ireland to achieve their end by violence. It is simply because of the existence of these people and the failure of the police and the ordinary course of justice to come to grips and deal satisfactorily with the situation that I support the provisions as set out in the Bill, and I ask the House to reject the amendment put forward by hon. Members opposite.

Mr. Fitt

I do not wish to detain the House on this amendment, but, having gone into it, I believe it was written with the intention of preventing the conviction of an innocent person. Anyone having any experience of Northern Ireland will know only too well that it is all too easy to create a set of circumstances whereby an innocent person could be convicted.

As at present drafted, the legislation refers to "premises". That could mean either business premises or residential premises, and a backyard could be part of the curtilage of such premises. It is not beyond the bounds of imagination that some particular kind of action could be taken by a man of violence, whether a member of the Provisional IRA, the UFF, the UDA or other extreme organisations. For example, in a Catholic area there might be a person who was opposed to the activities of the men of violence and he might be foolish enough to make his opinion known in that district, perhaps going into shops and talking to persons or making his position known at social functions and making clear that he was opposed to men of violence.

It is then quite possible for such a man to get a revolver and bullets and in the early hours of the morning to place them in the backyard of the particular residence, and then to use the confidential telephone to inform the security forces that it was suspected that arms were to be found at that residence. The security forces would then raid that residence and find the revolver and ammunition, and under the present legislation the person occupying those premises would have to prove that he had absolutely no knowledge that the weapon or the ammunition was there.

Mr. McMaster

The hon. Gentleman appears to be misunderstanding what I was arguing. All I am saying is that if a person in the circumstances described by the hon. Member for Belfast, West (Mr. Fitt) gives a reasonable explanation, that is sufficient. He has simply to give some satisfactory explanation. I have been giving a case, cited in the Diplock Report, where no evidence at all was given and where under the existing rules that person might well in those circumstances escape because of the rules relating to the onus of proof. But if he gives evidence and can give a satisfactory explanation that is the end of it.

Mr. Fitt

I believe the hon. Member will agree that under the proposed legislation the onus of proof rests on the person in the premises wherein the arms were found. This is not restricted only to members of the Catholic population who have shown abhorrence of the provisional IRA. It can also happen to many thousands of decent Protestants. Recently, in the polling in the Assembly elections they have shown that they have no time for the men of violence on their side; and exactly the same set of circumstances as I have illustrated could occur in the constituency represented by the hon. Member for Belfast, East (Mr. McMaster). Some tribute must be paid to the hon. Member's constituents because they rejected anyone who had the least association with para-military organisations in that area.

However, men of violence stop at nothing to win their war. They will use every unscruplous, filthy tactic to subject people opposed to them and who make their opinions known, if they are contrary to those of the men of violence, and who hope by making their opinions known to gain support in opposition to the men of violence.

The amendment is designed to protect innocent people. We recognise that emergency legislation of this kind is a gross departure from anything that has been passed in this House before; we recognise that it is a gross departure from British insistence on a fair and just judicial system. If it is implemented it will put the lives and fortunes of many people at serious risk in Northern Ireland. Surely the Government can have no serious objection to an amendment deliberately designed to prevent innocent people from being convicted because of the actions of their arch-enemies, the men of violence?

Amendment negatived.

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