Police and Justice Bill

I listened with interest to the noble Earls, Lord Northesk and Lord Erroll, as I always do when they speak on these subjects, and I certainly understand the thinking behind their amendments. I also understand that they reflect a concern about how subsection (1)(b) of the new Section 3A offence will be interpreted. The noble Earls explained carefully and very well that the concern rests on how paragraph (b) deals with dual-use tools. Obviously it is not the article that is at issue but how it is likely to be used, and that takes us to the heart of the matter. The noble Earl, Lord Northesk, is proposing to remove subsection (1)(b), which provides that an offence is committed if a person does any of the listed acts believing that the article is likely to be used to commit a relevant offence. Removing the paragraph would limit the use of the subsection to instances where the prosecution could prove that the article was intended to be used to commit computer misuse offences. We consider it important that the offence covers those who believe it is likely that the article will be used to commit offences, irrespective of intent. Further, the clause as drafted sets a high test to protect those with legitimate intentions. The supplying offence that we are talking about here is very narrowly drawn, and the high threshold that we require to prove the offence underlines that. The noble Earl, Lord Erroll, has proposed something slightly different. I am extremely impressed by his extensive consultation arrangements on the 9.19 am from Surbiton, or wherever his train was from. It seems a novel way of carrying out consultation on computer misuse; nevertheless, it is valuable for the potential thesaurus that it supplies us with. We do not believe that his proposed alternative—that of exchanging ““likely”” with ““primarily””—differs significantly from the current draft. Asking whether a person believes that the primary use of an article is to commit offences seems to be the same as asking whether he believes that an article is likely to be used to commit offences. Also, the proposed formulation would not deal adequately with a case where the primary purpose could be said to be legitimate but the article in question was supplied by a person who believed that it would be likely to be used to commit offences. The noble Earl, Lord Erroll, might like to consider that nuance further. The burden on the prosecution of showing that the accused believed that the article was likely to be used in the commission of an offence under Sections 1 or 3 of the Act will not, as I said earlier, be an easy one to discharge. It would not be sufficient for the producer of the article to show that it had been used for such a purpose on some occasions because that does not show a belief that the article in question will be so used. On the contrary, the producer will be taken to believe that the article would be used honestly, as it is in the majority of cases. The prosecution may need to prove that the supplier knew something about the person to whom he supplied the article on which to base a belief of dishonest use. Obviously, that will not be an easy task. We recognise the concerns of legitimate product manufacturers, the IT security industry and the research community about the need for clarity on how these provisions will apply to them. We have carefully considered the standard to be applied and we are satisfied that we have struck the right balancebetween protecting those who develop or supply tools for legitimate use and criminalising those who deliberately or recklessly develop or supply them for criminal use. I hope that what I have said provides that clarity. I express my gratitude again to both noble Earls for providing the Government with the opportunity to clarify our intentions. I invite them to withdraw their separate but distinctive amendments.