Serious Crime Bill [HL]

Amendments Nos. 95B and 96B have been proposed to us by Liberty. They would remove the defence of acting reasonably and in its place require the prosecution to establish that a defendant’s act was unreasonable in order to convict him of an offence under either Clause 40 or Clause 41. The need for a defence to cover the kinds of behaviour envisaged clearly demonstrates the extensive scope of the Clauses 40 and 41 offences. The defence of acting reasonably in Clause 46 is designed to enable a defendant—whom I will call ““D”” to carry on the nomenclature of initials that we seem to have established in our debate this afternoon—to escape liability for the new offences in the following kinds of situations. These are minor but important examples. First, D, a motorist, changes motorway lanes to allow a forthcoming motorist, P, to overtake, even though D knows that P is speeding. Secondly, D—let us call him a reclusive householder—bars his front door to a man trying to get into his house to escape from a prospective assailant. The third example is that D is a member of a DIY shop’s checkout staff and believes that the man P purchasing spray paint will use it to cause criminal damage. I believe that we would all agree that, in the examples that I have cited, the defendant should not be convicted of a criminal offence. The behaviour described is not criminally culpable. There can be little doubt that it would be entirely reasonable for some people to continue with an action even if they believed that it would encourage or assist the commission of an offence. Nevertheless, under the Bill as presently drafted, a person would be committing an offence in such circumstances unless he could prove that he was acting reasonably. In our view, the offences in the Bill present an unjustifiably low evidential hurdle for the prosecution, given the very wide scope of the offences. Once that has been crossed, in order to escape unjustifiable criminal liability, the defendant is then required to jump a very high hurdle: he has to persuade the jury that his actions were reasonable and should not, therefore, carry criminal liability. That may well prove difficult given the inherently uncertain concept of ““unreasonableness””. We believe that the burden of showing the reasonableness of the defendant’s actions should be borne by the prosecution. Shifting the burden in this way would appropriately limit the scope of the otherwise excessively broad offences.