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Mr. Maclean: No, I was not suggesting that they would be applied differently in Scotland. I was merely suggesting that the Scottish legal system, which is based on Roman-Dutch law, whereby judges could rule that something was contra bonos mores and interpret the law more flexibly than case law in England, could be said--this is merely an academic argument of the type that might take place in some of the Scottish universities when Scots law and its future in Britain or, indeed, Europe are debated--to enable it to deal more flexibly with new customs, technology or crimes that Parliament has not yet decided to outlaw. Scottish courts, for example, took a slightly different view of the practice of wheel clamping than did the English courts.
There is no question of interpreting the law differently. It is merely that, by habit, custom and coming from different theological bases, Scots law and English law have developed different flexibilities.
We do not want there to be any doubt on this subject. The law being passed today--which hopefully will receive a Third Reading today--will apply equally in both countries of the Union, as it will, of course, in Wales and Northern Ireland through clause 4.
Mr. Batiste:
For many years, I have been very interested in the issue of extra-territoriality and in the technological aspects of the internet. My right hon. Friend has just made some very positive statements about the Internet and about how messages on it would be covered by this legislation. There are, however, some very significant differences, which I shall try to draw out in a little more detail shortly in a speech.
Mr. Maclean:
I believe it does, because the amendment states:
If the wording was
it would have a severe limitation, and would not be relevant to the Internet. The fact that someone is "surfing the net" or "scanning"--or whatever the jargon is--and receives the message is sufficient to trigger this clause. There would be no problem in relation to the legal position.
There will, of course, still be a practical problem if that person in Bangkok who was mentioned by my hon. Friend the Member for Elmet (Mr. Batiste) never leaves Bangkok or returns to Britain, because we will physically not be able get our hands on him. Nevertheless, the crime will have been committed.
Mr. David Congdon (Croydon, North-East):
I should like to continue with the point about intent in relation to sending a message and whether it has been received. As a non-lawyer, my concern is whether someone would be able to drive a coach and horses through the clause by arguing that, by sending the message to a bulletin board, they were not intending necessarily that it should be received by someone in England. Would not a clever lawyer--there are plenty of clever lawyers in this place, as there are elsewhere--be able to use that as a defence?
Mr. Maclean:
I would say no, in no circumstances could it be used as a defence. We know what bulletin boards are, and we will get more details about how the Internet works. Bulletin boards are not a dead end in themselves, but a means of ensuring that messages are kept anonymous so that it is difficult to discover who sent the message. The sender knows that the message will then be transmitted to another web of computers and received by other people.
It would not be a defence for someone to say, "I invented a message and put it on the bulletin board, but of course I never expected anyone to read it." That defence would be disingenuous, and I do not think that it would hold water with any judge, magistrate or jury.
Mr. Jenkin:
What would happen if the message in question is in a foreign language? Could it be argued that, even though the message is available in the UK and of course available for translation, because the message is in French or Spanish, for example, it is not intended to be read in this country? Could that be used as a defence?
Mr. Maclean:
I do not think that that would hold water as a defence, either. In many of those examples, it would be a matter of proof and the facts of the case. According to the amendments' wording, the message would still have been received in the United Kingdom, and it would still be an offence however the message was communicated--in whatever language it was communicated. Many people in this country speak Spanish, and somewhere in this country every language is spoken by someone. Despite the language, it would still be an offence.
The amendment is certainly worded in such a manner that it would catch those messages. It would then be a matter for the police and the prosecuting authorities to decide in each case whether they had sufficient evidence to justify a prosecution, and of course whether they physically have the fellow who did it--and I say "fellow" advisedly.
I was saying before I ventured into my biased Scots law aside that there should be certainty. These amendments must provide such certainty. Any act of incitement by means of a message, however communicated, shall be deemed to take place in England and Wales if its effect is felt and received there. The second amendment deals with exactly the same situation in Scotland.
Thus, no one can claim that they are outside the jurisdiction of the Bill because they sent the message by Internet from Hong Kong, used a mobile phone in Venezuela or posted a letter in Egypt. If the message was received in this country or sent from here, the news is--by virtue of these amendments--they are caught.
That is the message that I should like to go out from the House today when the Bill is reported--that we are after those people in future. The message should be not only that we can now catch their physical acts against children, but that--when this Bill goes through its stages today, through the other place and then receives Royal Assent--the people hiding on the Internet or sending their filthy messages by that means of communication will be caught by this Parliament and by this Bill.
Mr. Garnier:
My right hon. Friend may have uttered a slip of the tongue. He used the expression "sent or received"--which is in the amendment--but he also used the expression "the effect of", which is not quite the same as "sent or received". I wonder--bearing in mind the case of Pepper v. Hart, which allows the courts to look at what Ministers say in Committee--whether he could be a little clearer about the use of the expression "the effect of", because we are talking incitement.
Mr. Maclean:
I thought that it was quite clear that the act shall be deemed to have taken place in England or
The person does not necessarily have to go and commit an act of indecency with a child. The person does not have to carry it into effect. Because the incitement has been put on the Internet--perhaps to come to Bangkok to do things with children--does not mean that the person who receives the message has to go to Bangkok and physically carry out an act before the crime is committed. The person who put the message on the Internet similarly does not have to ensure that someone carries out an act before he is guilty of an offence. The fact that the message has been put on the board and has been received here is the offence, not whether any physical act is then perpetrated.
Mr. Michael:
I am grateful to the right hon. Gentleman, because I think that he is helping to clarify the intention of the Bill, as I understand it. May I try my own words to clarify the position? The act of the putting information on an electronic bulletin board is the first step of a piece of communication that would be caught under these amendments. That is how I interpret the words in the amendments, and I believe that that is what the Minister intends, is it not?
Mr. Maclean:
As I understand it, yes; I think that we are in agreement on that--but, of course, it has to be received here for the offence to be triggered.
Lady Olga Maitland:
On the point about "received", what would happen if the recipient received material that was totally unsolicited? The offence, therefore, must have been perpetrated by the sender. If the sender is overseas, it is clearly not an offence, but the person receiving unsolicited material in this country could be deemed to be committing an offence. I am sure that that is not what my right hon. Friend intended.
"if the message is sent or received".
"if the message is sent with the intention that it may only be received in England by a willing recipient",
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