Serious Crime Bill [HL]

moved AmendmentNo. 43: 43: Clause 40, page 25, line 18, at end insert ““; and (c) his act was unreasonable”” The noble Lord said: My Lords, we are back in the field of reverse burdens of proof, which has exercised the human rights court on many occasions. These are matters that we raised in Committee, but I am grateful to Liberty for focusing our minds on the issues again. The amendments would require the prosecution to establish that a defendant’s act was unreasonable in order to convict him of an offence under Clauses 40 or 41. We also support Amendment No. 63, which would remove Clause 46, under which a person has a defence if he can prove in relation to Clauses 40 and 41 that he has acted reasonably. In an article in the Criminal Law Review in December 2006 entitled ““Inchoate Liability for Assisting and Encouraging Crime—the Law Commission Report””, GR Sullivan said that, "““the belief differs from the intent offence in that it will sweep up persons who have to deviate from normally lawful routines to avoid criminal liability: taxi drivers, fertiliser sellers, weighbridge operators, generous hosts, shopkeepers and so on. If they carry on providing their services or ministrations, knowing or believing that they will assist a crime, they will commit the belief offence. The offence will enlist a mixed cast: there will be sheep and goats””." The Government themselves acknowledged that the offences in Clauses 40 and 41 would, in principle, inappropriately cover some kinds of activity, giving the examples: "““D, a motorist, changes motorway lanes to allow a forthcoming motorist (P) to overtake, even though D knows that P is speeding; D, a reclusive householder, bars his front door to a man trying to get into his house to escape from a prospective assailant; D, a member of a DIY shop’s checkout staff””—" the defendant— "““believes the man (P) purchasing spray paint will use it to cause criminal damage””." In each case, the defendant has done nothing criminal himself but believes that what he is doing, which is perfectly lawful, may assist someone in committing an offence—pulling from the outside lane of the motorway into the centre to allow a speeding motorist to go by, and so on. In its 2006 report, the Law Commission also highlighted how the belief offences could sweep up justified behaviour. In paragraph 3.45, it said that it recognised that, "““extending liability beyond cases where it is D’s intention that the conduct element of the principal offence should be committed, raises the spectre of””," the defendant, "““incurring criminal liability for ostensibly lawful acts. A protestor may believe that his or her lawful protest will encourage the commission of retaliatory criminal conduct by others””." You might take for an example someone waving a placard in front of a crowd that he knows will react to it and cause a riot. The Law Commission continued: "““Authors, journalists and publishers may believe that material which highlights what some would consider to be cruel or barbaric practices will encourage others to commit offences against those carrying out the practices””." An example would be writing a newspaper article highlighting cruelty to foxes, or something of that nature. Where an action is entirely reasonable and isnot intended to encourage or assist in the commission of an offence by another person, we believe thatit should not be criminalised. That much is uncontroversial. The question is who should bear the burden of showing that the actions in question were reasonable. At present, the offences in Clauses 40 and 41 cast the net very wide, catching the kinds of behaviour set out above. Under the Bill, the Government expect the defendant to do the work of using the vaguely worded defence in Clause 46 to try to wriggle out of the net. He is the person who has to establish that his actions were reasonable in the circumstances and so should not lead to a criminal conviction. That could mean that the motorist who lets the speeding driver go by, the reclusive householder who bars his front door to a man trying to get into his house to escape from an assailant or the person on the check-out staff might be subject to the stress of being prosecuted and having to defend themselves in court. Secondly, establishing the reasonableness of one’s actions is a very high hurdle to cross. The defendant has to persuade the jury that his actions were reasonable and that they should not carry criminal liability. I referred earlier to the difficulty of proving the inherently uncertain concept of acting reasonably. We, together with Liberty, believe that the burden of showing the unreasonableness of the defendant’s actions should be borne by the prosecution and that the belief offences in the Bill should cover only actions that are proved by the prosecution to be unreasonable in the circumstances. In response to this argument, the noble Baroness, Lady Scotland, said that only the defendant is in a position to explain why he acted as he did. She said: "““The particular circumstances that justify their behaviour will be peculiarly within their own knowledge. As in all cases in which the burden of proving a defence is on the defendant, the standard of proof is the balance of probabilities””.—[Official Report, 21/3/07; col. 1245.]" We do not agree with that argument. The matterthat has to be established by way of a defence isthat the actions in question are ““reasonable in the circumstances””—not reasonable as the defendant considers or believes them to be, but objectively reasonable. The question is: would the average person in the street consider the actions reasonable? The defendant’s state of mind is not determinative of this in any way. Objective reasonableness—having to prove when you are a defendant in court that you have objectively acted in a reasonable way—is not a fair burden to impose on a person facing the sort of offences suggested against him. I beg to move.