§ 28. The Royal Pharmaceutical Society of Great Britain.").
§ On Question, amendment agreed to.1007
§ Schedule 1 [Persons having the appropriate permission]:
Lord Cope of Berkeley had given notice of his intention to move Amendment No. 159A:
Page 83, line 1, leave out paragraph 4.
§ The noble Lord said: The issues pertaining to Amendment No. 159A were discussed when dealing with the related amendments grouped with Amendment No. 139A. Therefore, I do not propose to move it.
§ [Amendment No. 159A not moved.]
§ [Amendment No. 159B not moved.]
§ Schedule 1 agreed to.
§ Clause 47 [Disclosure of information in place of key]:
Lord Bach moved Amendment No. 159C:
Page 51, line 7, leave out from beginning to ("unless") in line 21 and insert—
("(1) A section 46 notice imposing a disclosure requirement in respect of any protected information shall not contain a statement for the purposes of section (Effect of notice imposing disclosure requirement)(3)(c)").
§ On Question, amendment agreed to.
§ [Amendments Nos. 160 and 161 not moved.]
§ Lord Bach moved Amendment No. 161A:
§ Page 51, line 23, leave out ("a section 46") and insert ("the").
§ On Question, amendment agreed to.
§ [Amendments Nos. 162 to 164A not moved.]
§ Clause 47, as amended, agreed to.
§ Clause 48 [Arrangements for payments for key disclosure]:
§ [Amendment No. 164A A not moved.]
§ Clause 48 agreed to.
§ 9.45 p.m.
§ Clause 49 [Failure to comply with a notice]:
Lord Bassam of Brighton moved Amendment No. 164AB:
Page 52, line 2, leave out from ("person") to end of line 6 and insert ("to whom a section 46 notice has been given is guilty of an offence if he fails, in accordance with the notice, to make the disclosure required by virtue of the giving of the notice.").
§ The noble Lord said: I am happy to deal with this group of amendments if the Committee so desires. I understand entirely the motives behind the amendments in the group. We have been considering whether or not the offence at Clause 49 can be redrafted so as to retain its effectiveness while removing any potential for harm to justice. It will be noted that we tabled Amendments Nos. 164AB, 167B, 167C and 167D as a result of our deliberations.
§ These are difficult issues and it is a difficult offence to formulate. It involves many technicalities—the possession of a key—which it will be difficult for the prosecution to prove. However, I shall try to address the amendments as briefly as I can.
§ Amendments Nos. 164B and 164C seek to introduce the notion of intent into the offence. It is said that it should not he enough for the prosecution simply to 1008 prove that an individual did not comply with the notice, but also that there should have been some intent on their part. We resisted this in the past and shall continue to do so. A Section 46 notice will impose a legal burden. The offence is clear. It is simply a failure to comply with the notice. There is of course a defence for those who were not able to comply because it was not practical to do so.
§ I can be more helpful on Amendment No. 164C. This would say that a person is only guilty if he intentionally fails to comply; in other words, a person who fails to comply because he never received the notice or through sheer inadvertence is not guilty. We do not feel the strict liability which the offence imposes is onerous or unjust and do not believe the amendment is necessary. In the light of what I have said, I hope that Members of the Committee will agree that to raise the burden on the prosecution any higher would be unnecessary and would remove the efficacy of the deterrent. I hope noble Lords will consider not moving those amendments.
§ In Amendment No. 164D the noble Earl, Lord Northesk, seeks to add a stipulation that the offence will only work where someone failed to comply with a valid notice served under Section 46. We agree with the sentiment behind this amendment but believe it to be a clarification too far. There can be no question, under the Bill as currently drafted, that the offence will only work if the Section 46 notice is valid.
Turning to Amendment No. 165, there are difficulties with the notion of proving that a person,
has had possession of the key".
§ Let me spell out why the Government included this in Clause 49(1)(b). This limb to the offence is included not because we intend that people should be prosecuted where they have had possession of a key but have no longer got it when they are served with a notice; that is not now and never has been our intention. Rather, this part of the offence is there as explicit recognition of the extreme difficulty of prosecuting these offences.
§ The real issue created by the second limb of the offence is what burden is placed on the defendant where the prosecution has only been able to prove prior possession of the key. We have tabled an amendment making it clear that where the prosecution has been able to prove previous possession, that alone cannot lead to a conviction if the defendant raises some doubt as to whether or not he stilt has the key. I believe that that will deal with the issue addressed by Amendment No. 165.
§ Amendment No. 166 tries to add the possibility that the prosecution need only prove possession of a key or that someone was reasonably able to obtain such possession. I believe that that possibility is already provided for in Clause 52(2), to which we have tabled a slight amendment. Amendment No. 166 is therefore unnecessary and I ask the noble Lord not to move it.
§ Amendments Nos. 167 and 167A. come from broadly the same motives. Amendment No. 167A includes the notion of intention, with which I dealt in my comments on Amendments Nos. 164B and 164C.
The rest of the thrust of Amendments Nos. 167 and 167A deals with the time by which a person may have had possession of a key and the difficulties caused by including in Clause 49(1)(b) the notion that a person may be guilty of an offence where he,
has had possession of the key".
Those issues are addressed by government amendments.
§ We have tabled amendments that make it clear that proof of previous possession can lead to a conviction. However, it will not do so if the defendant raises an issue about whether he still has possession of the key. Once that happens, the burden falls back on the prosecution in the normal way. I believe that that will deal with the issue addressed by Amendments Nos. 167 and 167A. Accordingly, I hope that noble Lords will not press those amendments.
§ Lawyers refer to this as placing an "evidential" burden on the defendant, as opposed to a "persuasive" or "legal" burden. It means that the defendant simply has to raise some evidence to discharge the burden. That could be done, for example, by the defendant going into the witness box and saying that he has lost his key, or by producing some evidence that his system has crashed.
§ I believe that I understand the intent behind Amendment No. 168. In providing for a defence to the offence under Clause 49, the noble Lord, Lord Lucas, wishes to ensure that it will be sufficient for an individual to hand over any key that enables possession of the information to be obtained rather than a key that is specifically demanded. As I said earlier, it will not be possible under the Bill for the authorities to identify a specific key that they wish to be handed to them—rather, they must identify the protected information in question. That being the case, any key that unlocks the protected information will work for the purposes of the defence at Clause 49(3)(c). Again, we have tabled amendments to make that clearer.
§ Amendment No. 168A tabled by the noble Earl, Lord Northesk, is an attempt to make it plain on the face of the Bill that, where a key has been destroyed as part of routine practice designed to protect confidentiality, this should be a defence against any prosecution. Once more, that is already catered for in the Bill as drafted. All the circumstances set out in this amendment would undoubtedly meet the threshold required to be proved by a defence in a case where previous possession has been proved. Indeed, in as far as this amendment only provides for destruction of keys as part of "routine" practice, it may not go as far as the current situation outlined under the clause as drafted. As currently drafted—and even more so if government amendments are accepted—it should be enough just to explain that a key has been destroyed in a particular set of circumstances.
§ Amendment No. 168B seeks to lower the burden of proof on the defendant in this case to an evidential burden. I am sure that Members of the Committee will have noticed that a similar amendment has been tabled 1010 under my name. However, there is one significant difference. As drafted, Amendment No. 168B would seek to lower the burden of proof on the defendant in those cases where his defence is that compliance with the requirement was impractical. The Government's intention is only to apply this to the defence of showing lack of possession.
§ We do not see the need to lower the burden on the defendant as outlined in this amendment. This defence is for someone who, on the face of it, has committed the offence. The notice has been proved to have been served on him; he has been proved to be in possession of the key; he has not complied with the notice; but he is claiming that there are circumstances which made it impractical for him to comply. Necessarily, those circumstances are within his knowledge. Therefore, it must be for him to show them. In the light of this and the changes proposed by the Government, I ask noble Lords not to press the amendment.
§ The discussion that we are having on Amendments Nos. 168C and 169A was forecast at Second Reading and also in another place. Although I share to a considerable extent the concerns expressed and can see the attractions in moving in the direction proposed, I believe that there are constraints on us in this respect. In the final analysis, I do not believe that we can make such a move.
§ Amendment No. 168C is a very straightforward proposition—the maximum sentence for failure to comply with a Clause 46 notice should be 10 years, not two. This would be designed specifically to cater for the circumstance in which an individual sought to conceal his activities by not handing over a key in the full knowledge that, were his activities to be revealed, he would be facing a much longer sentence. How will the prosecuting authorities, or the judiciary, ever know the nature of protected information in a case where an individual has not complied with a Section 46 notice?
§ I share some of the frustrations of those who seek to move these amendments, but we need to focus on the offence in question. The offence is not complying with a notice under Section 46. By any view, a sentence of 10 years for such an offence must be disproportionate.
§ I turn to Amendment No. 169. I believe that in the fundamental interests of justice we must focus on the offence at Clause 49. That offence is failure to comply with a notice served under Section 46. By definition, if someone fails to comply with a Section 46 notice, the prosecution will not know the nature of the material that has been protected. They may have strong suspicions but they cannot know what the material is.
§ Even where the nature of other charges against an individual may lead one to have suspicions that the material has been protected, I still believe that the interests of justice dictate that the sentence for this offence must focus solely on what that offence is. I believe that a situation in which a person can be convicted of, say, an offence of unlawful possession on the assumption that unknown material is treated as incriminating risks offending against the presumption of innocence. I appreciate that Amendment No. 169 involves a different way of trying to achieve a similar 1011 objective to that in Amendments Nos. 168C and 169A. We need to focus on the offence. For that reason we believe that the appropriate sentence for this particular offence should not exceed a two year prison term and/ or fine.
§ I have outlined our views in detail and I have tried to draw attention to the issues which I think are dealt with by the Government amendment in this group. In the light of that I ask noble Lords not to move their amendments. I beg to move.
§ Lord Phillips of Sudbury
I thank the Minister for Amendments Nos. 167B to 167D, which go to the very heart of the unease felt on these Benches—and, indeed, on the Government's own Benches—about the standard of proof which prevailed in this important clause. As the noble Lord, Lord Bassam, pointed out in the course of rejecting one of the amendments in the group, the maximum sentence for breaching this clause is two years' imprisonment and a fine.
I shall speak briefly to Amendments Nos. 164B and 167, which stand in my name and those of my colleagues. We propose to withdraw Amendments Nos. 167A and 168B. However, I hope that I may raise just one point on the question of intent, on mens rea, in relation to offences under Clause 46. Given that it is a serious criminal offence, I am not content merely to have the Minister assert that the Government do not propose in this case to apply the normal test which is basic to our criminal legal system; namely, that there should be no serious criminal offence found without an intent to commit the crime. The Minister might, in responding to this short debate, say something about that.
The second point I wish to raise concerns our Amendment No. 167. In our view, there is virtue—I believe that others share this approach—in requiring any notice to be time limited so that the person or persons to whom it is addressed know where they are in terms of the length of its validity. Our proposed Amendment No. 167 is probing in this regard. Again, I should be glad if the Minister could say whether he sees any problem with that because it seems to us that a time limit is a practical and sensible restriction on the scope of the notices.
Finally, I raise two questions of interpretation on government Amendments Nos. 167B and 167C. Amendment No. 167B provides that if it is shown that a person was in possession of a key and so on, certain consequences flow. I should like to refer to the key phrase,if it is shown that that person was in possession of a key".Is that, as I hope and assume it is, a test on the balance of probabilities and not therefore a test beyond reasonable doubt? If that is correct—I believe it to be so—we have no trouble with it. If, on the other hand, the person who is at risk under that provision has to show at that stage beyond reasonable doubt, we do not think that the amendment works.
1012 My second query is in relation to the crucial amendment, Amendment No. 167C. Paragraph (a) states that,sufficient evidence of that fact is adduced to raise an issue with respect to it"."Sufficient evidence", I assume and hope, in this context means prima facie evidence and does not mean a balance of probabilities. We are content with the arrangements proposed under this amendment to throw the burden of proof beyond reasonable doubt back on to the prosecution but only if the evidence—the sufficient evidence that has to be produced by the accused—is prima facie evidence. Subject to those points, we are content with the amendments tabled by the Government.
§ 10 p.m.
§ The Earl of Northesk
Perhaps I may comment very briefly on the amendments standing in my name in the group. I think I am content with the Minister's response to Amendment No. 164D. I shall certainly read the Minister's comments with care. As to Amendment No. 168A, I am less certain. One of the many difficulties I have with the Bill is that, in its strident efforts to be technology neutral, it often conveys the impression that either it is ignorant of the way in which current technology operates, or pretends that there is no technology at all. The issue with which this amendment, Amendment No. 168A, attempts to deal is the particular case in point. I shall certainly read the Minister's comments very carefully indeed., but I suspect that this will be an issue to which I shall have to return at a later stage.
§ Lord Lucas
All that Amendment No. 169 does is to try to draw a line from the current position on the right to silence—that is the right of the court to draw an inference from the silence of a defendant. What we are talking about here is just another instance of silence by a defendant. He has refused to provide a key to enable, the court to see what lies behind the files on his computer. I should have thought there should be a similar right for the court to draw conclusions from that as it sees fit.
§ Lord Phillips of Sudbury
I rise to oppose Amendment No. 169. I am more used to being in alliance with the noble Lord, Lord Lucas, on these matters, but it seems to me that this is not a good analogy with the existing inferences that the courts can draw where an accused is silent. This is rather piercing the veil, as one might put it, of past convictions, which is a key foundation of our criminal law. Someone who has been found guilty in the past shall not in the course of a new trial have that past guilt around his or her neck. That would be a backward rather than a forward step, although I understand the point behind the proposal.
§ Lord Cope of Berkeley
I am glad that the Government have moved on the question of burden of proof. It was important that they should do so. I shall not comment any further on the points made by Members of the Committee on that issue.
1013 Amendments Nos. 164C and 168C stand in my name and are essentially a pair. They seek to draw attention to the dilemma which, along with several other noble Lords, I mentioned at Second Reading. If someone is holding incriminating evidence on his computer, he may refuse to give the key because the incriminating evidence might incur a severe sentence. In those circumstances, if it is thought that someone has done that, that person deserves to receive a sentence longer than two years because he would receive a much longer sentence if he were convicted of an offence of, say, paedophilia as a result of the police gaining access to the computer.
However, this dilemma appears to be one that none of us can solve. I accept the Minister's point that a sentence of 10 years is a high penalty to impose in many of the cases that would be brought in this area. I fear that the dilemma remains and perhaps there is nothing that we can do about it.
§ Baroness Harris of Richmond
At last I feel the urge to join in. I am delighted that my noble friends Lord McNally and Lord Phillips of Sudbury have been leading on this extremely complex Bill. I regret that I have not been able to join in the debates that have been held since Second Reading. That has not been entirely helped by the Government's change of dates for the Committee stage. However, I can assure noble Lords that I have followed the deliberations avidly.
In the debate on Second Reading, I raised concerns about the problems surrounding the penalty for failing to disclose a key. I must say that the view expressed by the police is that they would definitely prefer to see a far more severe sentence. They feel that this offence must be an arrestable offence, along with powers of search as set out in Sections 18 and 32 of the Police and Criminal Evidence Act 1984. As it stands, serious and organised criminals might possibly risk the two-year penalty—the likely tariff would be six to 18 months—if the encrypted material could provide evidence of serious criminality such as drug trafficking or paedophilia. If convicted on that evidence, they would face prison sentences of 10 years to life. On the face of it, the penalty provides little deterrent for major criminals. I am sure that the Minister will recognise the concerns of the police here, although I note that he has given reasons why he does not feel that this can be taken any further.
However, I agree with the Minister that a blanket 10-year sentence will not provide the answer. We need to be far more specific about what such a sentence would mean in practice. It could be a draconian measure. As the Minister said, it could well be disproportionate.
§ Lord Bassam of Brighton
I believe that most of the questions that have been put to me were dealt with in my opening remarks. I do not intend to rehearse all those arguments again. There was perhaps rather too much of it even for my benefit and enjoyment.
1014 However, I should like to respond to one or two questions put by the noble Lord, Lord Phillips of Sudbury. He raised a question about the way in which a matter would be considered under Amendment No. 167B. The noble Lord said that he would be satisfied if the test was made on the balance of probabilities. So far as concerns the Government, it would not have to extend even as far as that; a weaker version of it would be acceptable. I hope that helps the noble Lord.
The noble Lord also asked the Government to look again at the issue of intent as it is covered in Clause 46. At present we hold the view that Amendment No. 164B is unworkable, but that Amendment No. 164C may be more effective. We should like to give it further detailed consideration. If the noble Lord is content, I shall return to that matter, perhaps on Report.
§ Lord Phillips of Sudbury
I am grateful to the noble Lord for giving way. Is it unfair to ask why he thinks that a normal criminal test of intent is unworkable?
§ Lord Bassam of Brighton
That is not what I am saying. I said that we shall look at the issue in relation to Clause 46. We believe that Amendment No. 164B is not workable, but we believe that the way the proposal is expressed in Amendment No. 164C may well be workable. It is for that reason that I want us to have the time to give it further consideration. I am not querying the issue of intent as an issue in itself and how one expresses and understands it. That is not the point of the observation.
The noble Lord asked about "sufficient evidence". We see "sufficient evidence" as being any evidence that raises an issue. It is, if anything, less than prima facie evidence. I hope that that resolves that issue.
The noble Baroness spoke with considerable wisdom in addressing issues relating to the penalty, as did the noble Lord, Lord Cope. But I do not think that it is an easy matter for us to resolve. Both are right, but it is a matter of getting it right for the nature of the offence. At the end of the day, it comes down to an issue of compliance. That is what we have to satisfy. Those were the main additional points which were perhaps not covered in my earlier comments.
On Question, amendment agreed to.
§ [Amendments Nos. 164E to 167A not moved.]
Lord Bach moved Amendment No. 167B:
Page 52, line 7, leave out from ("section,") to end of line 8 and insert ("if it is shown that that person was in possession of a key to any protected information at any time before the time of the giving of the section 46 notice, that person shall he taken for the purposes of those proceedings to have continued to be in possession of that key at all subsequent times, unless it is shown—").
§ The noble Lord said: I have already spoken to this amendment. I beg to move.
§ On Question, amendment agreed to.1015
Lord Bach moved Amendment No. 167C:
Page 52, line 10, leave out from ("it") to end of line 14 and insert—
("( ) For the purposes of this section a person shall be taken to have shown that lie was not in possession of a key to protected information at a particular time if—
- (a) sufficient evidence of that fact is adduced to raise an issue with respect to it; and
- (b) the contrary is not proved beyond a reasonable doubt.").
§ The noble Lord said: I have spoken to this amendment. I beg to move.
§ On Question, amendment agreed to.
Lord Bach moved Amendment No. 167D:
Page 52, line 16, leave out from ("defence") to end of line 31 and insert ("for that person to show—
- (a) that it was not reasonably practicable for him to make the disclosure required by virtue of the giving of the section 46 notice before the time by which he was required, in accordance with that notice, to make it; but
- (b) that he did make that disclosure as soon after that time as it was reasonably practicable for him to do so").
§ The noble Lord said: I beg to move this amendment, to which I have already spoken.
§ On Question, amendment agreed to.
§ [Amendments Nos. 168 to 169 not moved.]
§ Clause 49, as amended, agreed to.
§ Baroness Thornton moved Amendment No. 169A:
§ After Clause 49, insert the following new clause—