My Lords, Amendment 3 is in my name and that of my noble friend Lady Hamwee. I will speak also to our other amendments in the group, Amendments 4, 5, 8 and 9.
It is a little confusing, but Amendment 15, in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark, was initially in this group, because it deals with it not being an offence to go to a designated area if you have good reason to do so. However, because Amendment 15 also contains a list of reasons that would make it legitimate for you to go to a designated area, it conflicts with the government amendment in group five and has therefore been placed in this group. However, with the leave of the House, I will address in this group the element of Amendment 15 that relates to something not being an offence.
I will start with the offence of being in a designated area, which is the subject of Amendments 8, 9 and 15. Noble Lords are rightly exercised about humanitarian aid workers, journalists and others going to a designated area and committing an offence—to which charge there is a defence, but apparently the defence cannot be mounted unless and until somebody has been charged. This means that those wishing to see a seriously or terminally ill relative, to use another example, may well be deterred from making the journey as, in the way the law is currently drafted, they will commit an offence whatever reasonable excuse they may have.
Our Amendments 8 and 9, and Labour’s Amendment 15, which we will debate in group five, effectively seek to put the reasonable excuse up front so that people are able to travel to a designated area with good reason, safe in the knowledge that, provided that the purpose of their visit is reasonable and legitimate, they will not be committing an offence. The wording we have used is similar to that in the Prevention of Crime Act 1953: the offence of possessing an offensive weapon in a public place,
“without lawful authority or reasonable excuse”.
In the case of offensive weapons—there is a precedent for this approach—a person does not commit an offence if they have lawful authority or reasonable excuse. This is instead of committing an offence and being able to use a reasonable excuse defence if and only if charged.
As the Bill is drafted, the person charged with an offence can tell the court that they have a reasonable excuse and the prosecution would have to prove that this was not the case. Section 118 of the Terrorism Act 2000 states that if the accused,
“adduces evidence which is sufficient to raise an issue with respect to the matter the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not”.
What then would be the drawback of saying that someone does not commit an offence, if they have evidence that is sufficient to raise an issue that amounts to a reasonable excuse with respect to entering or remaining in a designated area? If the police have evidence that the person is not intending to travel for the purpose for which there is a reasonable excuse, or that they did not engage in the activity that they said was the purpose of their visit, when they return to the UK the person can be arrested on the grounds that the police have reasonable cause to suspect that they may be about to commit, or have committed, an offence: that is, travelling to or remaining in a designated area without reasonable excuse.
At this point, I will address an issue raised by the noble Lord, Lord Carlile, on a previous group. The fact is that the grounds on which a police officer can make an arrest are very low. A constable can, for example, arrest somebody whom they have reasonable cause to suspect may be about to commit an offence. That is a very, very low threshold, and much lower than in the CPS charging guidelines. I give way.