Serious Crime Bill [HL]
Baroness Scotland of Asthal (Minister of State, Home Office; Labour)
My Lords, I know that the noble Lord, Lord Thomas of Gresford, has been concerned about this issue but we do not think that that concern is merited. These amendments have been proposed because the scope of the offences committed with belief is potentially wide and could cover activities that are considered to be everyday. The examples given during our Committee debate, in the Law Commission report and, indeed, repeated today of the motorist who moves over to let a speeding driver pass or a salesperson who sells spray paint that he believes will be used to commit criminal damage may be technically possible but, I believe, in the event are highly unlikely to be proceeded with.
As I said in Committee, I agree entirely that these offences should not criminalise conduct that is considered reasonable. However, the Government agree with the Law Commission that it would be better to rely on a defence of acting reasonably in the circumstances, which is included in Clause 46.
It is important to make it clear that the offences do not simply apply where a person carries out an act capable of encouraging or assisting an offence that he believes will happen. The prosecution must also show some awareness on D's part—belief or recklessness—that the principal offender will operate with the necessary fault element for the principal offence or with any necessary circumstances or consequences. If we accept that perhaps this element would be made out, then the question is: should the prosecution have to prove that D's behaviour was unreasonable, as would be the case under these amendments, or should D have to prove that his behaviour was reasonable, as would be the case under the Bill?
We believe that it is sensible for the burden to fall on the defendant. As I said in Committee, the prosecution will already have proved that the defendant has done something to assist or encourage an offence, believing that it will be committed. The burden is on the defendant to prove that it was reasonable for him to act as he did in the circumstances that he knew or believed to exist. As I hope I explained, in both cases, only the defendant will be in a position to explain why he acted as he did and why it was reasonable for him to do so. The particular circumstances justifying his behaviour will be peculiarly within his own knowledge. As with all cases where the burden of proof is on the defendant, the standard of proof will be the balance of probabilities. We consider that it is fair and reasonable to impose a legal burden in the context of the reasonableness defence.
The burden of proving all the elements of the offence falls on the Crown, whereas the defence turns on facts which are peculiarly within the knowledge of the defendant and which therefore may well be difficult for the prosecution to disprove. It is well established in case law that there are situations in which it is fair to put a legal burden on defendants where these criteria are taken into account. We consider that this is such a situation and I therefore ask the noble Lord to withdraw his amendment.