Counter-Terrorism and Border Security Bill — House of Lords, 2018-10-29
Topic: Law and Crime
Frederick Richard Penn Curzon (Conservative, Centre-right): My Lords, as we have discussed, the offence of entering or remaining in a designated area, which would be inserted as a new Section 58B of the Terrorism Act 2000 by Clause 4, is subject to a reasonable excuse defence. We have already debated the circumstances which might give rise to a reasonable excuse and how these should be catered for within the Bill Amendment 18 addresses a different aspect of that provision: the question of how much the evidence is required to establish a defence to the new offence. Related to this is the question of whom the evidential burden is placed on. Section 118 of the 2000 Act sets out how the evidential burden applies to a number of defences to criminal offences within the 2000 Act, including the new designated area offence The noble Lord, Lord Rosser, is concerned that the current drafting of new Section 58B(2), which contains the defence to the designated area offence, is out of step with the existing provision in Section 118 of the 2000 Act and will place a greater burden on defendants to make out a reasonable excuse than is envisaged by Section 118 I understand and respect the noble Lord’s wish to ensure that defendants facing a charge under Section 58B are not placed in a worse position than those charged under other offences with a similar reasonable excuse defence. However, I hope that I can allay that concern and provide a clear assurance that this will not be the case if I explain how Section 118 interacts with the defence to the new Section 58B offence The wording used in the defence, which refers to a defendant proving that he or she had a reasonable excuse, is the exact same formulation used elsewhere in various defences to offences contained in the 2000 Act, including the defence to the Section 58 offence amended by Clause 3. It is vital to recognise that this reference in the defence to "prove" should not be read on its own; rather it is subject to the operation of Section 118, which makes further provision on what is required to prove a defence in this context Specifically, Section 118 provides that if a defendant, "adduces evidence which is sufficient to raise an issue with respect to the matter"— the matter that has to be proved under the wording of the defence— "the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not" This, together with relevant case law, has the effect that if a defendant puts forward sufficient evidence to reasonably support a suggestion that he or she has a reasonable excuse, then the burden of proof shifts to the prosecution to disprove that defence, which it must do to the normal criminal standard—beyond reasonable doubt. If the prosecution fails to do so, then the jury must assume that the defence is made out. The precise extent and nature of evidence required on the part of the defendant to invoke the defence in the first instance will be a matter for juries to determine in individual cases. Parliament has set a threshold which is not particularly high; all that is needed is, "evidence which is sufficient to raise an issue with respect to the matter" In practice, a trial judge would be cautious to rule out any proposed defence unless it was plainly incapable of being judged by a jury as a reasonable one. In relation to new Section 58B(2), the evidential burden placed on the defendant will not be any greater than that required in relation to any of the other offences to which Section 118 applies. Furthermore, were Section 118 to continue to apply to new Section 58B(2), the amendment would have no impact in practice. Whether new Section 58B(2) refers to the defendant stating or proving the defence, under Section 118, it will still be for the jury to decide whether the prosecution has disproved the defence beyond reasonable doubt.