Lord Goldsmith (Attorney General, Law Officers' Department; Labour)
My Lords, I cannot agree with that. On the example given, I am not sure that it would be necessary for the defendant to give evidence. However, for the purpose of argument, let us assume that. But what about the next limb of Clause 3(5) which, again, by the amendment, the noble Lord takes out of a legal burden on the defendant: that part of the defence is showing that he was a person to whom subsection (6) applied? Subsection (6) includes the fact that he is not aware of the publication of the repeat statement. The effect of the amendment would be—I am happy for him to intervene and explain otherwise but it seems clear—that the legal burden would be on the prosecution to prove that the defendant was someone who was aware of the publication of the repeat statement. There can be nothing more within the knowledge of the defendant than his own state of mind. We are at Third Reading; there is no coming back on the amendment. If the amendment were passed, there would be a real problem with the Act as then passed.
On Clauses 1(6)(b) and 2(7)(b), I accept that the noble Lord has been more precise in the parts that he has taken out. But let us examine the purpose of the defence. The defence would arise in circumstances where somebody published—and the prosecution would have to prove it—a statement which was, to put it crudely, a direct or indirect inducement to terrorism, as so understood by reasonable people. So the person has published the statement. He also has sufficient knowledge of the risk that the statement will induce terrorism, but is subjectively reckless about taking it. I do not want to try to define precisely what "subjective recklessness" means; it has been discussed before. The person publishes the statement and has sufficient knowledge that it may be an inducement to terrorism, but is prepared to take that risk.
I can imagine circumstances in which somebody—perhaps a broadcaster—is prepared to do that. That person says, "I realise that if I publish this on the television, or wherever, it may have the effect of inducing people to commit terrorism, but I think it is justifiable to take that risk because it is in the public interest". In those circumstances is it unreasonable to say to that person, "It is a defence for you to do that provided you do not endorse that view, and it is clear that you do not endorse that view"? Is it really unreasonable in those circumstances to say that that person needs not only to have the burden of taking that risk but of proving that that was the circumstance? I respectfully suggest that, given that we are providing this exception to meet that category of offence, it is not at all unreasonable to say, "You may take that risk but you must prove that you did not endorse the view expressed, and it was clear that you did not endorse it". That will very clearly put on to the person who chooses to take that risk the burden of making it clear that they did not endorse the view expressed, which would be an easy enough thing for them to do.
I respectfully suggest that the amendment would plainly require the prosecution to do something that would not be within its knowledge, at least in relation to the point that I made on Clause 3(5). It would also be unreasonable not to say to someone who is publishing this material with subjective recklessness, "You must take the risk and you must prove it". We must consider what lies behind this. I think that the House is agreed on the fundamental principle—we must stop people publishing statements which may encourage other people to commit acts of terrorism. I invite the noble Lord not to press the amendment.