§ Mr. Simon Hughes
I beg to move amendment No. 182, in page 25, leave out lines 4 to 11.
I hope the House will agree that the amendment is important. This is the only opportunity that we shall have to discuss two matters that were central to previous debates. The first is whether the Bill, as drafted, is compatible with the European convention on human rights. The second is whether it is right that there should be powers to create what is sometimes described as the reverse burden of proof—whereby people have to prove that something is not the case, rather than the prosecution having to prove that it is the case.
The amendment applies to clause 56, which creates the offence of possession for terrorist purposes. The clause says:A person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism.If those circumstances give rise to a reasonable suspicion, it is a defence for the person charged with the offence to prove that his possession was not for a purpose connected with that act. He has a statutory defence if he can show that the inference is wrong.
436 The following subsection is particularly dangerous, and the amendment will remove it if the House agrees with us. It says:
In proceedings for an offence under this section, if it is proved that an article … was on any premises at the same time as the accused, or … was on premises of which the accused was the occupier or which he habitually used other than as a member of the public, the court may assume that the accused possessed the article, unless he proves that he did not know of its presence on the premises or that he had no control over it.I hope that by simply reading the clause, without any argument, I begin to make the case that this is, in the words of my hon. Friend the Member for North Cornwall (Mr. Tyler), a "guilty until you prove yourself innocent" clause rather than an "innocent until you prove yourself guilty" clause. There are significant reasons from case law for believing that the provision falls foul of the convention. I have been given clear legal advice that the provision breaches the convention.
§ Mr. Hughes
The hon. Gentleman, who is a practising member of the Bar, confirms that. He may want to contribute to the debate.
I shall not reiterate all the points made in Committee, but I refer colleagues to the debate on 1 February in the seventh sitting which begins in column 244 of Hansard. The arguments about clauses 55 and 56 were subject to the same criticism, and this is only one of many examples in the Bill of a reverse provision where one has to prove that one did not know about something. Self-evidently, that is an extremely difficult thing to do.
I draw the attention of the House to the breadth of the provision. First, any article can render one guilty; it does not have to be a firearm, ammunition, Semtex or a knife. The Bill says:
A person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion.The second issue concerns possession. I have not yet said that being found guilty of the offence means that one would be liable to 10 years' imprisonment, so we are talking not about a minor criminal offence, but abut a serious one punishable by a significant period of imprisonment. One can be assumed to be guilty of possession simply because the article is found on the premises at the same time as one is there.
That need not be one's own house, caravan, land or car; it can be the house of a person with whom one is staying, of a person whom one is visiting, of a member of one's family, or of a work colleague; it can be the farm house if one is a farm worker, or a barn on the farm if one is the farm owner. The fact of an article being found on any and all of those premises is sufficient to reverse the burden of proof.
The clause does not apply to public buildings, such as pubs or shops, but it does apply to any premises of which one is an occupier, or which one habitually uses, or in which one was present at the same time as the article in question. That means that one would be guilty even if the article was on those premises when one was not there, because one was the occupier of those premises.
437 The legislation does not apply solely to Northern Ireland; these events could occur in London, Belfast, Birmingham or Glasgow. I am the occupier of my house, so if an article now in my house were to be found there, I could be presumed to be guilty of an offence. It will be apparent to the House that we are entering a realm of culpability extending beyond any previous provisions applicable to this country.
The third objection is the presumption of guilt and the reversal of proof. The House understands that criticism perfectly well, and the reasons for it. I am not being mischievous or partisan, I just want to put on record the fact that people who are now members of the Government argued against such provisions only a few years ago, when they were in opposition. The Attorney-General—this country's senior Law Officer—has argued against such provisions and made the case. In similar cases, involving exactly such provisions, we as a country have been found to be in breach of the convention.
There is case law, which I shall not detail as people can easily find the relevant references. One does not even have to prove a prima facie case to pass the reasonable suspicion test; extremely thin evidence may be considered sufficient to establish a subjective reasonable suspicion. A case from the highest legal authority, the Privy Council, confirms that, as do several others.
The fourth argument rests on the fact that the Bill is not applicable solely to Northern Ireland. It could apply to international organisations based abroad and to premises abroad that one occupies, such as a holiday villa or flat, or a rental property. There are all sorts of ramifications extending beyond this country.
If the Government want to persuade us that such legislation is required, the burden of proving that rests with them. That is putting it gently. If Ministers want us to agree to the provision, which is repeated throughout the Bill, they must persuade us that it is both justified and a good thing.
It is true that, in this matter, on the balance of judgment, Lord Lloyd was on the Government's side. The argument rests on how far we want anti-terrorism legislation to go. It is also true that there have only ever been two prosecutions in respect of legislation such as this. Even so, it strikes me that the more important issue is that of the clear legal advice, based on case law, that I have received. The question is whether we want to fly so flagrantly in the face of such strong authority.
The Minister has said, and I believe him, that the legal advice that he has received is that the provision is compatible with the convention. I tried to be as open as I could and asked to see it. Obviously, lawyers may disagree and there may well be two legal opinions, but at least let us examine the arguments which suggest that the provision is compatible with the European convention. That advice has not been forthcoming. I understand that even if we had the most wonderful freedom of information legislation, such advice to the Government would probably not be required to be produced.
Unless the Government can produce such independent authority against the backdrop of the case law, they are not passing the test of showing the case to the House. I shall not detain the House further. We shall press the amendment to a Division.
The Home Secretary sold the Bill to us on the basis that it would be UK-wide legislation. It will not be for part of the United Kingdom, but for all of it. It will not 438 be for people only in the United Kingdom, but for people beyond it. It will not be for a limited period, but indefinitely.
We cannot legislate in a way that is compatible with our legal obligations and the rights of our citizens if we put such legislation on the statute book. I hope that people will realise that the good British legal tradition that a person is innocent until proven guilty should remain, unless the Government can advance an overwhelming argument for it to be changed. They have not made that case.
§ Mr. Corbyn
I shall be brief, as the hour is late. I endorse what the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) said in support of his amendment.
The basic principle of all law must be that a person is innocent until proven guilty. The clause appears to go in the opposite direction. It would indict someone who has been regularly on the premises where it is believed that some material that could be used for terrorist activities is held. It would also require a person to prove his lack of knowledge—in other words, to prove his innocence, rather than the prosecution proving a case against that person.
On a number of occasions, people have been arrested under the existing PTA and subsequently convicted and imprisoned, or arrested under other legislation, and have subsequently proved to be innocent. I am thinking of the case of Danny MacNamee, who spent many years in prison and was finally acquitted. He was charged with possession. It was later proved that he could not have done what he was supposed to have done with the material that he had.
Draconian legislation is proposed. I endorse the comment of the hon. Member for Southwark, North and Bermondsey that the Bill is different from other Bills. It is a permanent, not a temporary provision. Someone could be convicted on the basis that, because of regular visits to a place, it could be claimed that he had knowledge of what was going on there. In those circumstances, it would be difficult for the person to prove otherwise.
I fear that, if the Bill is enacted in its present form, we will return to the miscarriages of justice of yesteryear, which we hoped to have left behind us, with the changes in attitude and legislation following the release of the Birmingham Six, the Guildford Four and others. We may want to deal with the problems of people who place bombs that kill innocent people, but this is not the way to do it. We are being urged to convict the innocent along with the guilty. That prejudices the entire judicial process.
I ask the Minister to explain the justification for stating in the Bill that one must prove a lack of knowledge of something. It is virtually impossible to do that. The onus should be on the prosecution, rather than on the defence, to prove that. The provision goes against the principle that the burden of proof should lie with the prosecution. It states that the burden of proof must lie with the defence. That cannot be right. It is contrary to the basic principles of our law.
§ Mr. McNamara
I shall not detain the House long. The hon. Member for Southwark, North and Bermondsey (Mr. Hughes) and my hon. Friend the Member for Islington, North (Mr. Corbyn) have made most of the points. I shall make two observations.
439 When the Bill was first published, it contained the fiat from the Home Secretary that nothing in it was contrary to the human rights convention. The hon. Member for Southwark, North and Bermondsey read out the clause, so I do not intend to do that. However, I shall repeat article 6 of the European convention on human rights. Article 6.2 states:Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to the law.It is incumbent on the Government not merely to claim that, on best advice, their actions are compatible with the convention, but to produce evidence of that. That reverses the burden of proof, and puts the onus on the Government to prove their case and their innocence.
§ Mr. Lidington
As I understand the report of Lord Lloyd of Berwick, the comparable provision in the emergency provisions Act led to no fewer than 24 convictions since the power was first introduced in 1991. We should therefore pause before we accept the dilution of the law that the amendment would allow.
According to my interpretation of clause 56, the prosecution has to prove that an article found during an investigation is incriminating of likely terrorist activity. That is an unqualified burden on the prosecution when the case comes to court. The reversal of the burden of proof applies only when the defendant wants to argue that, although the article was present and was found in circumstances that created a reasonable suspicion that it was connected with terrorist activity, he did not possess it and was not aware of its presence. That proposal is not as unreasonable as the hon. Members for Southwark, North and Bermondsey (Mr. Hughes) and for Islington, North (Mr. Corbyn) suggest.
I agree with Lord Lloyd of Berwick, who argued that if,during a search of premises occupied by a suspected terrorist, the police … find materials such as timers or chemicals in highly incriminating circumstances without also finding explosives or other prohibited materials—possession of which would count as an offence—the relevant person shouldbe required to account to the court for his possession of the articles.That is reasonable. For that reason, I do not support the amendment.
§ Mr. Charles Clarke
The debate was rehearsed in Committee in columns 252–53. The general question of whether the clause constituted a reversal of the burden of proof has also been considered at length.
First, let me refer to the report of Lord Lloyd of Berwick. The possession offence for which clause 56 provides is useful and effective. Lord Lloyd sets it out clearly. The hon. Member for Aylesbury (Mr. Lidington) provided some details. The provision reflects the prevention of terrorism Act. We are satisfied on the basis of the Lords ruling in Kebilene that the provision is not incompatible with the European convention on human rights.
§ Mr. Bermingham
Does the Minister agree that the comments of the hon. Member for Aylesbury (Mr. Lidington) were sheer rubbish? If one finds timers, explosives and so on, they are per se objects of terrorism. We are arguing about whether the reverse burden is applicable. It is not applicable in view of article 6 of the European convention on human rights.
§ Mr. Clarke
I do not agree with the analysis of my hon. Friend. For the purpose of clarity, I shall go through clause 56. Subsection (1) states:A person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism.That condition, which is not trivial, must be fulfilled.
Subsection (2) states:It is a defence for a person charged with an offence under this section to prove that his possession of the article was not for a purpose connected with the commission, preparation or instigation of an act of terrorism.There is therefore a statutory defence. It is not the only defence, but, statutorily, it is a defence to demonstrate that possession was not for a purpose connected with terrorism. Again, that approach runs through the Bill in a number of different aspects. It stands up absolutely and is a statutory defence that can protect innocent people.
Subsection (3) is specifically addressed by the amendment. Again, the point is clear: the court may assume that the accused possessed the article unless he proves that he did not know of its presence on the premises or that he had no control over it.
A series of hurdles would have to be overcome by the prosecution to get to an offence in this particular area. We are dealing with serious issues, as set out in Lord Lloyd's report. I hope that the House agrees that the amendment should be defeated if put to the vote, but I also hope that the hon. Member for Southwark, North and Bermondsey will withdraw it, as he did in Committee.
§ Mr. Simon Hughes
We went round the course once in Committee and then considered the components of the clause in the clause stand part debate. I expressly reserved our position at that stage, as the Minister fairly recognises, and sought to amend the clause—which I thought would be of practical value—in a significant and material way that we think would correct the balance. This is a symbolic effort because there are similar clauses, but rather than test it ad nauseam through the evening, we think it right to put our amendment to the vote. I shall not withdraw it because even if, with draconian powers, some success would be achieved, it is at least unwise to provide a balance that is so weighted and so unusual—in more than one way, there is a double balance in favour of the prosecution—when there is clear controversy and specific advice that the measure falls foul of the European convention.
441 In the very year in which we are introducing the convention into British law—the hon. Member for Hull, North (Mr. McNamara) referred to it—putting the Bill on the statute book permanently does not send the right signals either to Northern Ireland, where people are seeking to re-establish normal criminal justice, or to the rest of the country, where we are seeking to uphold our traditions well. We do not want the Bill to be permanent and I regret greatly the inclusion of such provisions. Of course the prosecution will be more likely to succeed if the burden of proof is reversed. That is self-evident. If there were no defence rights, there would be more convictions. That, too, is self-evident. The fewer rights there are, the more likely that the defence will have difficulties.
We cannot afford to risk the miscarriages of justice that such provisions will enable and it is important that the House, with as much support as possible, either defeats the Government and amends the clause or at least signals its clear view that the other place should reconsider the matter.
§ Question put, That the amendment be made:—
§ The House divided: Ayes 35, Noes 239.444
|Division No. 113]||[12.48 am|
|Allan, Richard||Heath, David (Somerton & Frome)|
|Ashdown, Rt Hon Paddy||Hughes, Simon (Southwark N)|
|Baker, Norman||Jones, Dr Lynne (Selly Oak)|
|Ballard, Jackie||McDonnell, John|
|Beith, Rt Hon A J||Maclennan, Rt Hon Robert|
|Breed, Colin||McNamara, Kevin|
|Bruce, Malcolm (Gordon)||Moore, Michael|
|Burnett, John||Morgan, Alasdair (Galloway)|
|Burstow, Paul||Rendel, David|
|Campbell, Rt Hon Menzies (NE Fife)||Russell, Bob (Colchester)|
|Chidgey, David||Stunell, Andrew|
|Corbyn, Jeremy||Tonge, Dr Jenny|
|Cotter, Brian||Tyler, Paul|
|Davey, Edward (Kingston)||Webb, Steve|
|Fearn, Ronnie||Willis, Phil|
|Foster, Don (Bath)|
|George, Andrew (St Ives)||Tellers for the Ayes:|
|Hancock, Mike||Mr. Tom Brake and|
|Harris, Dr Evan||Sir Robert Smith.|
|Ainger, Nick||Browne, Desmond|
|Ainsworth, Robert (Cov'try NE)||Burgon, Colin|
|Allen, Graham||Butler, Mrs Christine|
|Anderson, Janet (Rossendale)||Campbell, Alan (Tynemouth)|
|Arbuthnot, Rt Hon James||Campbell—Savours, Dale|
|Atkins, Charlotte||Cann, Jamie|
|Austin, John||Caplin, Ivor|
|Banks, Tony||Casale, Roger|
|Barnes, Harry||Cawsey, Ian|
|Beard, Nigel||Chapman, Ben (Wirral S)|
|Beckett, Rt Hon Mrs Margaret||Clapham, Michael|
|Benn, Hilary (Leeds C)||Clark, Dr Lynda (Edinburgh Pentlands)|
|Bennett, Andrew F|
|Benton, Joe||Clark, Paul (Gillingham)|
|Bermingham, Gerald||Clarke, Charles (Norwich S)|
|Berry, Roger||Clelland, David|
|Blackman, Liz||Clifton-Brown, Geoffrey|
|Blears, Ms Hazel||Clwyd, Ann|
|Boateng, Rt Hon Paul||Coaker, Vernon|
|Borrow, David||Coffey, Ms Ann|
|Bradley, Keith (Withington)||Cohen, Harry|
|Bradshaw, Ben||Collins, Tim|
|Colman, Tony||Kilfoyle, Peter|
|Connarty, Michael||Kumar, Dr Ashok|
|Cook, Frank (Stockton N)||Laing, Mrs Eleanor|
|Corston, Jean||Laxton, Bob|
|Cousins, Jim||Lepper, David|
|Cox, Tom||Levitt, Tom|
|Cranston, Ross||Lewis, Ivan (Bury S)|
|Crausby, David||Lewis, Dr Julian (New Forest E)|
|Cryer, Mrs Ann (Keighley)||Lidington, David|
|Cryer, John (Hornchurch)||Linton, Martin|
|Cummings, John||Lock, David|
|Cunningham, Jim (Cov'tiy S)||Love, Andrew|
|Curtis-Thomas, Mrs Claire||Luff, Peter|
|Darvill, Keith||McAvoy, Thomas|
|Davey, Valerie (Bristol W)||McCabe, Steve|
|Dawson, Hilton||McDonagh, Siobhain|
|Day, Stephen||McFall, John|
|Donaldson, Jeffrey||McGuire, Mrs Anne|
|Dowd, Jim||McIsaac, Shona|
|Eagle, Angela (Wallasey)||Mackinlay, Andrew|
|Eagle, Maria (L'pool Garston)||McLoughlin, Patrick|
|Ennis, Jeff||Mactaggart, Fiona|
|Fisher, Mark||McWalter, Tony|
|Flint, Caroline||Mahon, Mrs Alice|
|Flynn, Paul||Mallaber, Judy|
|Foster, Rt Hon Derek||Marsden, Paul (Shrewsbury)|
|Foster, Michael J (Worcester)||Marshall-Andrews, Robert|
|Gapes, Mike||Maxton, John|
|George, Bruce (Walsall S)||Meacher, Rt Hon Michael|
|Gerrard, Neil||Merron, Gillian|
|Gibson, Dr Ian||Miller, Andrew|
|Gilroy, Mrs Linda||Moffatt, Laura|
|Godman, Dr Norman A||Moonie, Dr Lewis|
|Godsiff, Roger||Moran, Ms Margaret|
|Goggins, Paul||Morgan, Ms Julie (Cardiff N)|
|Golding, Mrs Llin||Morley, Elliot|
|Gordon, Mrs Eileen||Mountford, Kali|
|Griffiths, Jane (Reading E)||Murphy, Denis (Wansbeck)|
|Griffiths, Win (Bridgend)||Murphy, Rt Hon Paul (Torfaen)|
|Grogan, John||Naysmith, Dr Doug|
|Hall, Mike (Weaver Vale)||O'Brien, Bill (Normanton)|
|Hall, Patrick (Bedford)||O'Brien, Mike (N Warks)|
|Hamilton, Fabian (Leeds NE)||O'Hara, Eddie|
|Hanson, David||Olner, Bill|
|Heal, Mrs Sylvia||O'Neill, Martin|
|Healey, John||Organ, Mrs Diana|
|Heathcoat-Amory, Rt Hon David||Pearson, Ian|
|Hepburn, Stephen||Pendry, Tom|
|Heppell, John||Pickthall, Colin|
|Hesford, Stephen||Pike, Peter L|
|Hinchliffe, David||Plaskitt, James|
|Hope, Phil||Pollard, Kerry|
|Howarth, Alan (Newport E)||Pope, Greg|
|Hoyle, Lindsay||Pound, Stephen|
|Hughes, Kevin (Doncaster N)||Prentice, Ms Bridget (Lewisham E)|
|Hurst, Alan||Prosser, Gwyn|
|Hutton, John||Purchase, Ken|
|Iddon, Dr Brian||Quin, Rt Hon Ms Joyce|
|Illsley, Eric||Quinn, Lawrie|
|Ingram, Rt Hon Adam||Rammell, Bill|
|Jackson, Helen (Hillsborough)||Rapson, Syd|
|Jamieson, David||Reed, Andrew (Loughborough)|
|Jenkins, Brian||Rooker, Rt Hon Jeff|
|Johnson, Miss Melanie (Welwyn Hatfield)||Rooney, Terry|
|Ross, Ernie (Dundee W)|
|Jones, Rt Hon Barry (Alyn)||Rowlands, Ted|
|Jones, Mrs Fiona (Newark)||Ruane, Chris|
|Jones, Helen (Warrington N)||Russell, Ms Christine (Chester)|
|Jones, Jon Owen (Cardiff C)||Ryan, Ms Joan|
|Jones, Martyn (Clwyd S)||Salter, Martin|
|Keeble, Ms Sally||Sawford, Phil|
|Keen, Alan (Feltham & Heston)||Sedgemore, Brian|
|Kemp, Fraser||Shaw, Jonathan|
|Kennedy, Jane (Wavertree)||Simpson, Alan (Nottingham S)|
|Khabra, Piara S||Singh, Marsha|
|Kidney, David||Smith, Rt Hon Andrew (Oxford E)|
|Smith, Angela (Basildon)||Stringer, Graham|
|Smith, Miss Geraldine (Morecambe & Lunesdale)||Stuart, Ms Gisela|
|Taylor, Rt Hon Mrs Ann (Dewsbury)|
|Smith, Llew (Blaenau Gwent)|
|Soley, Clive||Taylor, Ms Dari (Stockton S)|
|Taylor, David (NW Leics)|
|Squire, Ms Rachel||Thomas, Gareth R (Harrow W)|
|Starkey, Dr Phyllis||Timms, Stephen|
|Steinberg, Gerry||Tipping, Paddy|
|Stewart, David (Inverness E)||Todd, Mark|
|Stinchcombe, Paul||Touhig, Don|
|Stoate, Dr Howard||Turner, Dennis (Wolverh'ton SE)|
|Strang, Rt Hon Dr Gavin||Turner, Dr Desmond (Kemptown)|
|Straw, Rt Hon Jack||Turner, Neil (Wigan)|
|Twigg, Stephen (Enfield)||Winterton, Ms Rosie Doncaster C)|
|Vis, Dr Rudi||Wise, Audrey|
|Walley, Ms Joan||Wood, Mike|
|Ward, Ms Claire||Woolas, Phil|
|White, Brian||Worthington, Tony|
|Widdecombe, Rt Hon Miss Ann||Wright, Anthony D (Gt Yarmouth)|
|Williams, Rt Hon Alan (Swansea W)||Wyatt, Derek|
|Williams, Alan W (E Carmarthen)||Tellers for the Noes:|
|Williams, Mrs Betty (Conwy)||Mr. Gerry Sutcliffe and|
|Winnick, David||Mr. Clive Betts.|
§ Question accordingly negatived.