The Sketch: To deem or not to deem? Only the Government has the answer

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The Independent Online

Gather round, semantic fans. Or fans of semantics as we semanticists prefer to say. Let us begin with "deemed". Try this out as a principle. Whenever politicians use the word "deemed" they're up to mischief. When South Africa's apartheid laws worked against the interests of the state, particular black people could be "deemed" to be white.

These days, hospital chairs can be "deemed" to be beds, for the purpose of fiddling hospital statistics. Trains that are five minutes late are "deemed" to be on time, to fiddle rail statistics. To the same end buses can be "deemed" to be trains.

Lord Lloyd drew our attention to a "deemed" in the new Terror Bill. If you glorified any terrorist act - past, present or future - you could be deemed to be likely to be understood to be encouraging members of the public to emulate that act.

Look at the tortuous path through human behaviour that sentence represents. Deemed. Likely. Understood. Encouraging. Emulate. Five levels of uncertainty, now we look at it, inherent in this one new criminal offence (seven years in jail). "But," Lord Lloyd went on, "if I read a statement glorifying the activities of the Africa National Congress, I am not at all likely to understand it as a personal encouragement to commit a terrorist act, so why should I be deemed to have understood it as such?"

Why? The Government drafts Bills like this so it may be deemed to be doing something to protect the public, even while encouraging terrorism at home and abroad.

Very large changes to the structure of British justice are taking place through these semantics. The presumption of innocence was a long-term principle. That went out a year or two ago, on a flick of the wrist. Lord Gresford pointed out a new one: where there is insufficient evidence to charge someone they can now be "charged prospectively".

Actually, that's a principle already established by this government. Control orders are not meant as a punishment for doing something wrong but to prevent people from doing something wrong.

But that's just semantic. "Intent", as more than one peer pointed out, has been introduced to the drafting, and that's held out as a great advance. You have to intend people to emulate the terrorist act you are glorifying to be guilty of the offences.

But appearances are deceptive. You don't, in fact, have to intend to encourage people. You can say something recklessly that has that effect even though you didn't mean it. And "recklessly" has been defined in the Bill as "carelessly".

Mere semantics? A large body of law turns on the difference. People have died to illustrate the two propositions, and maybe they will again.

"We must never be complacent!" the Government cries. Maybe a little complacency would be preferable to frenetic legislative therapy.