Serious Crime Bill [HL]

moved AmendmentNo. 5: 5: Clause 2, page 2, line 26, after ““has”” insert ““conducted himself in a way that was unreasonable in the circumstances and, by doing so, has”” The noble Lord said: My Lords, we discussed these amendments at length in Committee. Your Lordships will recall that the Bill provides for a person to rely on a defence that he was acting reasonably in all the circumstances. The problem is that the Bill placesthe burden of proving that he acted reasonably on the defendant. In other words, it reverses the ordinary burden of proof that applies in the vast majority of criminal offences. All these amendments would do is put on the prosecuting authority the requirement to establish that a person was acting unreasonably before an order could be made. The matter that must be established is whetherthe actions in question were reasonable in the circumstances. That is not a test of whether the actions were reasonable in the defendant’s mind. Because the words ““in the circumstances”” are used, it is clear that an inquiry is required into whether the actions were objectively reasonable; the defendant’s state of mind is not determinative of that in any way. As we have found in many areas of the criminal law, objective reasonableness is a vague concept that is difficult to establish. Moreover, we are dealing not with a jury but with applications made to a single High Court judge. The problem is that it is the High Court judge’s view of what is reasonable, rather than what the defendant considered at the time he performed the actions, that is likely to rule. We do not believe that it is fair to impose this burden on the defendant. I hope that I have the support of the noble Baroness, Lady Anelay, because she made the apposite comment in Committee that it was not possible to see, "““any justification for applying the reverse burden of proof””.—[Official Report, 7/3/07; col. 279.]." We entirely agree with her and bring forward these amendments accordingly. I beg to move.