My Lords, as the noble Lord, Lord Kennedy, has said, Amendments 15 and 16 are the same. What constitutes a reasonable excuse will obviously be a matter for the jury. I accept that one cannot identify reasonable excuses in the abstract without knowing exactly in what circumstances a person undertook a particular action, but citizens should know when it is likely that they will be committing a crime. I think that that is accepted in the ECHR memorandum on this clause, where the Government say:
“There should be some degree of latitude for a person legitimately to explore political, religious or ideological matters, and the criminal law should acknowledge that, without the person actively seeking it, this may lead him to online material that crosses the line into that which is likely to be useful to a terrorist”.
Having some guidance would give a framework for the citizen to assess the matter.
At this stage, I shall not oppose Clause 3 standing part of the Bill—the intention to do so appears in a separate group—because we have covered more ground than I had anticipated. However, I will say now that it occurred to me that there might be a point of comparison between Clause 3 and legislation on child sexual exploitation. The Criminal Justice Act 1988 creates an offence of a person having an indecent photograph or pseudo-photograph of a child in his possession, and possession includes a physical and a mental element. I understand that the CPS guidance states that a person who views an image on a device which is then automatically cached on to the device’s memory would not be in possession of that image unless it could be proved that he or she knew of it. At first blush at any rate, it looks as though Clause 3 goes further than that provision, which requires possession, control or custody of images as opposed to viewing them.
Coming back to Amendment 15, I hope that the Government can give serious consideration to some way of assisting members of the public on this whole matter. Guidance will not override the provisions of the legislation but it can be what it is intended to be—that is, helpful.