My Lords, my noble friend Lord Thomas of Gresford and I oppose this clause standing part of this Bill. I agree with my noble friend Lady Hamwee that it goes well beyond what is necessary for the protection of the public against terrorism. While I quite understand the point just made by the noble Lord, Lord Carlile, that imagery is in many circumstances unacceptable, I disagree with him that this provision meets that problem. We have seen no evidence from the Government that persuades me that the terms of this proposed new section would reduce terrorism or make terrorists easier to catch. I believe that it departs from the sensitive balance between the protection and the security of the public, and the public’s civil liberties, in a way that is irredeemably bad.
The Government seek to define an objective—deterrence of displays encouraging terrorist groups—but offer no evidence as to why the new offence in these terms is needed. That is the first reason why it should be opposed. In other words, if we apply the first test I suggested at Second Reading for considering these measures—what is the purpose of this provision, which is a measure criminalising publication only; and what is the mischief it seeks to address—the Government leave both questions unanswered. Because the purpose is left undefined, it is not possible even to move to the second test of whether the measure is necessary to achieve that purpose.
The second reason why this clause should be opposed is that a person might be convicted of an offence under proposed new Section 1A, even if no mens rea of any kind is proved. To introduce a new offence criminalising behaviour where the prosecution is not required to establish any mental state on the part of the alleged offender is a very serious matter, and needs compelling justification. No such justification has been advanced in support of this clause. This is an absolute offence of publication, the only indicator of a guilty mind being that publication takes place,
“in such a way or in such circumstances as to arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation”.
No requirement is proposed that the person charged should have deliberately, or even recklessly, given rise to such suspicion; no requirement that that person should be a member or supporter of a proscribed organisation; or even that the person should in fact have done anything to make anybody think that he or she was such a member or supporter. There is not even a requirement that the publication itself should be deliberate. A person who accidentally captures an offending image and unwittingly publishes it might be committing the offence merely because other reasonable people might regard the publication as casting suspicion on the person who publishes it. As for the images published that may be caught by this clause, the range is very wide. It follows, applying the test of proportionate response, that this measure is disproportionate, and it is no surprise that this term was used frequently in the first report on the Bill by the Joint Committee on Human Rights.
For the reasons given by my noble friend and other noble Lords who have amendments in this group, Amendments 7, 8 and 9 would make the clause considerably less offensive. However, I suggest that introducing new offences such as this is an unjustified intrusion of the criminal law into an area from which it should be excluded, in a way that is unacceptable. I agree with the Joint Committee on Human Rights that the clause,
“risks catching a vast amount of activity and risks being disproportionate, particularly given the lack of incitement to criminality in the mens rea of this offence. It risks a huge swathe of publications being caught, including historical images and journalistic articles, which should clearly not be the object of this clause … it risks a disproportionate interference with Article 10”.
Finally, there is no evidence relied on by the Government that the offence would be in any way an effective weapon in the battle against terrorism, which we all strongly support.
As for the seizure provisions relating to the offence proposed in new subsection (4), because the principal offence is too wide, so are the seizure provisions. They move some way down a road to police powers that I suggest are excessive, obtrusive, arbitrary and unnecessary. Such powers being ancillary to an absolute offence of publication such as is proposed would carry the risk of alienating exactly those whose support for the police we should be trying to win.