Serious Crime Bill [HL]

My Lords, I can confirm what I set out in the letter as being the correct position. We believe that it would be better to provide one defence to all the offences included in Part 2. Amendments Nos. 59 to 61 would remove the crime prevention or prevention or limitation of harm defence in Clause 45 and extend the application of the defence of reasonableness in Clause 46 to all the offences under Part 2. That makes it a great deal clearer. We also believe that it would be sensible, given this proposed extension, to put in the Bill some factors that the court could consider when determining whether an act was reasonable. That is the effect of Amendment No. 62. This is a non-exhaustive list consisting of the purpose for which a person claims to have been acting, any authority by which a person claims to have been acting and the seriousness of the offence that he believed or intended would be committed. For these reasons, we resist Amendment No. 63. As we discussed in relation to previous amendments, the reasonableness defence was proposed by the Law Commission as a limit on the potential liability for the belief offences. I believe that it is necessary in that regard to proceed as we now propose. I remember that, when this amendment was discussed in Committee, the noble Baroness, Lady Anelay, queried whether the reasonableness defence would cover a whistleblower—a point that has been repeated by the noble Lord, Lord Henley—and gave the example of a civil servant who encourages a journalist. In my letter, I sought to respond to that, following that conversation. As the noble Lord said, I explained that a whistleblower could seek to rely on this defence, but whether the jury accepts that argument is another matter; it is a matter for the jury to judge whether it is reasonable. Both the Home Office and the Law Commission recognised that unmeritorious defendants will seek to rely on this defence. We believe that government AmendmentNo. 62, which gives examples of factors that can be considered in determining reasonableness, will help to guard against this, and so I hope that noble Lords will support it. We believe that juries will see through unmeritorious arguments. Indeed, in the example given, the fact that a civil servant is bound by the Official Secrets Act would no doubt be borne in mind by the jury when determining whether he had acted reasonably. Nevertheless, it could be that a jury, considering all the facts, would accept this defence. Of course, the defence would not exempt the civil servant from liability under the Official Secrets Act. I hope that that has explained why we have made these changes. Our debates have been very helpful in that regard. We were worried whether people would take adventitious advantage of the reasonableness defence, but we think that this will be a simpler and easier way and agree with the general import of what was said in that regard. I thank all those who participated in the debates, because it has enabled us to make some quite productive changes. I hope that, on that basis, your Lordships will accept government Amendments Nos. 59 to 62. On Question, amendment agreed to. Clause 46 [Defence of acting reasonably]: