Police and Justice Bill

Well, my Lords, that may well be the case, but I invite the noble Earl to consider that we are trying to write terminology into the Bill that has a proven track record of being tested in a court of law. That is very important. I do not know how the noble Earl can make that judgment about those tools being used primarily or only by hackers. I am not sure how he reaches that conclusion. In a sense, that is otherwise from this debate. That is his view, but I invite him to bear with me while I complete my commentary so that he can better understand where we are coming from. As I said, having listened to the debate in Committee and to industry, we accept that it would not be reasonable in all cases for the manufacturer of a tool to be held responsible for its subsequent illegal use if they had no such intent. I have been persuaded that the circumstances relating to making or adapting a tool are often too far removed from the use of it for the person to form a solid belief in the likelihood of criminal use. However, the same does not apply to those who supply the articles believing that it is likely that they will be used to commit offences. As we discussed in Committee, ““believing that it is likely”” is a high test in practice; the prosecution would need to prove beyond reasonable doubt that the person supplying the tool knew that it would be used for unlawful purposes in most instances. We think on balance that that is the right, sensible and appropriate approach. Obviously, those in the legitimate IT security sector make, adapt and supply these tools as part of their daily work. They rightly need the confidence that the new offence will be used appropriately—one might also argue proportionately—to ensure that their practices and procedures fall entirely within the law. The DPP will write and publish guidance on how the new offence will be dealt with, with particular focus on the factors that prosecutors will take into consideration in determining, in accordance with the code for Crown prosecutors, whether there is sufficient evidence to prosecute and whether it is in the public interest to do so. Finally, we have made amendments to Clause 43 that make transitional provisions to ensure that the changes which the Bill makes to the Computer Misuse Act 1990 do not have an impact on offences committed before the Police and Justice Act comes into force. A question was asked about the assessment made by the noble Earl, Lord Northesk, of the clause’s impact. The assessment, which was given ample voice by the noble Baroness, Lady Anelay, differs from ours. We have consulted industry members and the CBI on these provisions and have had no representations from them suggesting that the provisions will force them out of the UK market. In fact, the provisions will not criminalise general applications such as browsing, as it is used more legitimately than criminally. Therefore, no one could believe it likely that they will be so used. We have taken industry views into account and, as I say, have not received the sort of representations to which the noble Baroness alluded. That said, I simply invite the noble Baroness to withdraw the amendment in the name of the noble Earl, Lord Northesk, and the noble Earl, Lord Erroll, not to move his amendment. I hope that they will accept the government amendments.