OFFENCES RELATING TO TERRORISM (Hansard, 13 April 1994)

§ Mr. Fraser
I beg to move amendment No. 224, in page 57, line 41, leave out from 'possession' to 'for' in line 43.

§ Madam Speaker
With this, it will be convenient to consider amendment No. 225, in page 57, line 41, leave out 'a reasonable suspicion' and insert 'the reasonable conclusion'.

§ Mr. Fraser
Clause 72 creates a new offence. These amendments are alternatives: the Government are free to choose one or the other. The offence that is being created is having an article in one's possession for a purpose connected with the commission, preparation or instigation of an act of terrorism to which the clause applies. No hon. Member wants a situation in which people go around in possession of articles intended for purposes of terrorism. The objection to the way in which the offence is formulated lies in the words in circumstances giving rise to a reasonable suspicion that the article is in his possession for a purpose connected with the commission, preparation or instigation of acts of terrorism".
Unfortunately, the nature of the offence being created does not derive from the defendant's actually having an article in his possession for the purposes of terrorism. It might be a gun, a detonator or some other explosive device, all of which would normally be articles illegally possessed. On the other hand, it might be a perfectly lawful object, 321 such as binoculars, a camera, a notebook, a mobile telephone or a measuring tape. The substance of the offence is not the possession of the article but the fact that the possession gives rise to reasonable suspicion.
Of course we want to strengthen the law against terrorists, but here we are creating sus law that is quite literally so. The problem about sus laws is that the issue becomes not what the defendant did or intended to do but what a police officer or some other person suspected he had done or intended to do. So, ultimately, the offence is literally a matter of conjecture and suspicion.
Theft is not defined as "he steals who takes and carries away something capable of being stolen, giving rise to the suspicion that the defendant intended to deprive the owner of the item". We do not define the offence of supplying dangerous drugs as "being in possession of drugs giving rise to a reasonable suspicion that they were intended for supply". And we do not define grievous bodily harm as "wounding somebody under circumstances that give rise to reasonable suspicion that somebody has been done harm".
The Government are free to choose between the two amendments as they wish. They create an objective test of whether the person was in possession of an article with a view to terrorist activity or in circumstances that give rise to a reasonable conclusion. It will then be left to the jury to reach an appropriate decision on whether an offence has been committed.
The problems with the formulation in the clause are, first, it is not good law; secondly, the innocent risk being convicted; and, thirdly and also important, it may give rise to a guilty person being convicted and then becoming a martyr. That does not fight terrorism but gives terrorism a chance of guilty martyrs who can then attack the law under which they were convicted.
If we are to unite against terrorism and create a new offence, let us do it in a sensible, acceptable way that will not lead to innocent people being convicted or guilty people having alibis in the eyes of their followers.

§ Mr. Maclean
Clause 72 makes it an offence, under the Prevention of Terrorism (Temporary Provisions) Act 1989, for a person to have any article in his or her possession in circumstances that give rise to reasonable suspicion that the article is in his or her possession for a purpose connected with the commission, preparation or instigation of acts of terrorism. It will be a defence for the person to prove that the article is not in his or her possession for such a purpose.
That follows the terms of the offence as it already exists in Northern Ireland under section 30 of the Northern Ireland (Emergency Provisions) Act 1991. Amendment No. 224 would require the prosecution to show beyond reasonable doubt that the article was in the person's possession for a terrorist purpose. That would effectively render the offence unworkable as it might often prove impossible for the prosecution to establish that.
For that reason, the present wording of the offence requires the prosecution to prove beyond reasonable doubt that, from the combination of the nature of the article, the circumstances of its possession and the statements of the accused, a terrorist purpose in the possession of the article can be suspected. If such a suspicion is established, it is not unreasonable then to require the accused to explain his or her possession of the article or to show that he or she was not in possession of it. I emphasise that it will not be the 322 simple possession of the article but its possession in circumstances that give rise to a reasonable of its connection with terrorism that will constitute the offence.
Amendment No. 225 would make no practical difference to the test of guilt in that offence. Unlike the concept of reasonable suspicion, the concept of reasonable conclusion is not commonly used in criminal law and its use here would give rise to uncertainty about the proper meaning of the provision.
I understand the concern of the hon. Member for Norwood (Mr. Fraser). I give him credit for his genuine concern and for seeking, in his view, to make the test fairer and safer. But the test in the new offence is fair and should remain. Despite his reasonable and courteous attempt, the route that he proposes would not work and would undermine the clause. That was not his intention, but I am sorry that I cannot accept his amendments.