Digital Switchover (Disclosure of Information) Bill

That is an unlikely occurrence, given past efforts in this respect. If there is a problem with offences under Clause 3(1), there is a problem with offences under Clause 3(2) as well, so I am somewhat surprised that attention has been drawn to the offences under subsection (1) but not to those under subsection (2). If we are to debate this issue any further, I hope that at least an amendment will be tabled to cover both. There does not seem to be any logic in the Opposition’s contention that we will have an extremely principled argument about the law in respect of this matter but that we will gloss over the offences in Clause 3(2). I think that the Opposition always put forward highly principled arguments—it would be beneath them not to do so—but I think they just happen to be wrong in this respect. It is not the case that we are reversing the law of the land and that the presumption of innocence will be thrown away by the proposals in these subsections of Clause 3. The presumption of innocence is absolutely central to our criminal law and it is also enshrined in the European Convention on Human Rights, so the department will not disregard it lightly. In fact, that presumption underpins the offences in Clause 3, and I include all the offences there. In a case of alleged unauthorised disclosure, it will be for the prosecution to prove beyond reasonable doubt: that a disclosure of information took place; that it was made without lawful authority; that it was not a disclosure falling within subsection (4)—a disclosure of information already in the public domain, for example; that the information hadbeen supplied originally to a relevant person under Clause 1 of the Bill; that the defendant falls into one of the classes of person who can be prosecuted forthe offence—a ““relevant person””, for example, or an employee of a relevant person; and that the defendant made the disclosure. So there is no change in British law there, and the prosecution has to prove that before it can secure a conviction. What is different is that subsection (5) then comes into play. It is open to the defendant to prove—to the lesser standard of the balance of probabilities—that, in short, he or she made an honest and reasonable mistake. Noble Lords who proposed these amendments say that it should be for the prosecution to prove that the defendant did not make such a mistake—in short, that the defendant was culpable to a degree that makes it right to convict him with a criminal offence. That would put subsection (5) on the same footing as the matters mentioned in subsections (1), (2) and (4). We do not agree with that contention. The Bill requires only that the defendant should prove that it is more likely than not that certain extenuating circumstances applied; then he will be entitled to be acquitted. Those are circumstances which the defendant will be in the best position to know about—perhaps only the defendant will know about them. Those matters relate to his state of mind, or, more precisely, to what the defendant knew or believed at the time of the offence, and the factual circumstances surrounding the offence that made it reasonable for him to have that state of mind. Perhaps, for example, the defendant had been told mistakenly by a manager that it would be within the scope of his job to disclose the information, or perhaps he thought he had seen the information in question published in a local newspaper, or that the person concerned had consented to the disclosure of the information. If those mistaken views were honestly and reasonably held, then the defendant should be acquitted. But to ask the prosecution to prove beyond reasonable doubt that they were not so held would place an unreasonable burden on the prosecution. It would make prosecutions too difficult to bring, and acquittals too easy. The deterrent effect of Clause 3 about important information—and to which we attach great importance—would be lost, and the security of citizens’ personal data correspondingly weakened and jeopardised. This is not a unique provision. We need look no further than Section 123 of the Social Security Administration Act 1992—with which at least one noble Lord opposite is probably much more familiar than myself—which makes similar provision in relation to social security information in the hands of the DWP. I emphasise that we are not changing the burden of proof. We are not making a presumption of guilt, with the defendant having to prove their innocence. We are saying that, in an area where difficult judgments must be made on how the balance should be struck in the operation of the law, it is unreasonable for the prosecution’s case to have to stand on their being able to prove the state of mind of the individual committing the offence, rather than establishing that the offence has been committed. We are not offending against the presumption of innocence. We are merely saying that this is the nature of the offence. If an individual is guilty of the offence, a breach of the law has occurred. The Opposition’s amendments propose an extra burden of proof which we reject. That is why we hope the amendment will be withdrawn.