Yesterday's Committee Stage debate on the Terrorism Bill 2005 saw the promise of a Government concession, to extend to say, book retailers or libraries, the same defence available to the telecomms or internet industries, with regard to publishing terrorist statements etc. without actually knowing about them or supporting them.
Since the Government are still refusing, at the moment, to include the concept of "intent" in the "indirect incitement and glorification" offences, Baroness Scotland's promise needs to be looked at sceptically until an actual amendment is passed.
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Baroness Scotland of Asthal:
The question of intent and recklessness in Clause 1 has caused the most anxiety. There is clearly no doubt that intent should be part of the offence. Those who intend to encourage terrorism should find that their activities fall within the parameters of this offence. There is, however, some disagreement over the recklessness element. The question is whether the recklessness test should be objective or subjective. An objective test involves establishing whether the defendant could not reasonably have failed to know what the effect of his statement would be. A subjective test would involve establishing that that defendant in fact knew what the effect of his statement would be.
We are satisfied that if a person could not reasonably have failed to know what the effect of his statement would be, he should not be able to escape punishment simply by asserting that he did not actually know what the effect would be. We in the Government, however, have listened to the concerns expressed here and in another place, and I can confirm that the Government will accept a subjective recklessness test in Clause 1, which both Her Majesty's loyal Opposition and the Liberal Democrats voted for in another place. When we reach Amendment No. 9, tabled by the noble Lords, Lord Kingsland, Lord Henley and Lord Goodhart, and the noble and learned Lord, Lord Cameron of Lochbroom, we in the Government will support it. Similar issues arise elsewhere.
She went on to say:
I also signal that the Government will seek to make a further change to Clause 1. At present, there is a defence in Clause 1(7). The defence has three limbs: first, that the statement was published in the course of providing a service electronically; secondly, that the statement did not express the views of the person publishing it; and, thirdly, that it was clear in all the circumstances that the statement did not express the views of the person publishing it.
The Government now propose to extend this defence to everyone, not just those who provide a service electronically. This amendment will extend the scope of the defence considerably. The defence will be available to those who make a statement available to the public in the course of, for example, a news
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broadcast, if they could show that they did not endorse the statement and the circumstances surrounding the broadcast made that clear.
Likewise, academics who passed statements on to their students or who took up arguments that could be construed as encouraging terrorism, but only for the purposes of educating their students, could not be convicted, provided that they could show they did not endorse the statement and it was clear in all the circumstances that they did not. We intend to move an amendment to that effect on Report. Together with the move to subjective recklessness, this change would mean—
However the only actual Amendment which was passed yesterday, with Government support was:
Lord Kingsland moved Amendment No. 9:
Page 1, line 15, leave out subsection (3).
On Question, amendment agreed to.
i.e. they Government and the Lords agreed to remove:
"(3) For the purposes of this section the cases in which a person is to be taken as reckless as to whether a statement is likely to be understood as mentioned in subsection (1) include any case in which he could not reasonably have failed to be aware of that likelihood."Technorati tag: Terrorism Bill 2005