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Mr. Grieve: I realise that I failed to welcome what the Government have done. I do so wholeheartedly, and I am grateful to the Minister for taking on board the representations that have been made.
Paul Goggins: I am grateful to the hon. Gentleman. In a sense, this amendment exemplifies the spirit in which we conducted the Committee stage. A great deal of consensus emerged.
A situation could arise in which a paedophile with many previous and serious convictions had repeatedly communicated with a number of children on the internet and in which there was clear evidence that he intended to commit perhaps a violent sex offence against one or more of them. He might set off to meet one of these children for this purpose, but the police might intervene to protect the child. We would all be clearly relieved that the offence of carrying out the sexual assault on the child did not take place but, in such cases, a maximum sentence of seven years' imprisonment may not be adequate. The proposed new maximum penalty of 10 years brings the offence in clause 16 into line with the preparatory offences in clauses 61 to 63 that also carry 10-year maximum penalties.
The hon. Gentleman spoke to amendment No. 146, and I remind the House that the child familial sex offences are primarily designed to protect children up to the age of 18 within the family environment where they are particularly vulnerable to sexual abuse and exploitation. Because of the balance of power within the family unit and the close and trusting relationships that exist within it, the family can create particular opportunities for exploitation and abuse.
A great deal of thought was given to the scope of this offence and the familial relationships that should be covered. It is clear that the most important factors are the proximity of the relationship and the balance of power that exists between the abuser and his victim, and these issues can extend beyond the immediate blood relatives of a child.
The definition of the family unit also needs to be drawn widely to reflect the fairly loose structure of the modern family and the sometimes transitory nature of familial relationships. Cousins have always been included in the scope of these offences and this view was generally supported in another place. The only issue raised for discussion in Committee there was the definition of the term "cousin" and the wish that this should be restricted to first cousins. That is the effect of the definition in clause 28(5)(b). I hope that the hon. Gentleman will be reassured on that point.
We believe that it is right to include cousins within the scope of these offences in circumstances where they live, or have lived, in the same household as the child or if they are, or have been, regularly involved in caring for, training or supervising the child. In such circumstances, when one cousin is so closely involved in the life of another, there will clearly be the opportunity for exploitative behaviour to take place and for an unsuitable relationship to develop. The hon. Gentleman asked for the reasons for our approach, and I have outlined why I cannot accept his amendment. I ask him not to press it.
Sir Paul Beresford: This has been an unusual Bill, and it was particularly so in Committee. The Committee kept to the timetable because we had a genuine interest in targeting our discussions on certain issues. The same thing has happened this evening. The Government have shifted their position in the other place and here in response to the pressures put on them, and this group of amendments is an example of that.
Amendment No. 146 pressed for the response that we had asked for in Committee. I think that my hon. Friend the Member for Beaconsfield (Mr. Grieve) will be satisfied that we have at least received some response.
We certainly support Government amendment No. 8. The Minister was pressed by both sides in Committee and we give him his considerable due for responding in the correct way even if he did not respond in quite the way that we would have liked.
New clause 5 was tabled to make sure that the Government were aware of the slips in court procedures that might allow a convicted and vicious paedophile to be let loose on children. The Minister has taken our points on board and clearly acted upon them. His face in Committee suggested that he would be helpful, and he has been this evening. I therefore beg to seek leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
New Clause 7
Encryption (No. 2)
'A person convicted of an offence under section 1 of the Child Protection Act 1978 and subsequently convicted of an offence under section 53 of the Regulation of Investigatory Powers Act 2000 is on the second conviction on indictment liable to—
(a) a term of imprisonment not exceeding seven years, or
(b) a fine, or
(c) both.'.—[Sir Paul Beresford.]
Brought up, and read the First time.
Sir Paul Beresford: I beg to move, That the clause be read a Second time.
Mr. Deputy Speaker: With this it will be convenient to discuss the following: new clause 8—Encryption (No.3)—
'1. After section 53 of the Regulation of Investigatory Powers Act 2000 there shall be inserted—
"53A Subsequent failure to comply with a notice where protected data likely to be indecent images
(1) Where the first and second conditions below are satisfied, section 53 of this Act shall apply as if the penalties were—
(a) on conviction on indictment, to imprisonment for a term not exceeding seven years or to a fine, or to both;
(b) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both
and the offence shall be treated as a relevant offence for the purposes of Part II of the Sexual Offences Act 2003.
(2) This first condition is—
(a) a person has been previously convicted of an offence contrary to section 53 of this Act, and
(b) that person has been previously convicted of an offence contrary to section 1 of the Protection of Children Act 1978 or section 160 of the Criminal Justice Act 1988.
(2) The second condition is a further notice has been issued under section 49 of this Act.".'.
Amendment No. 190, in page 26, line 16 [Clause 46], at end insert—
'(5) Section 5 of the Protection of Children Act 1978 (c.37) shall be amended as follows—
(a) After subsection (6) shall be inserted—
"(6A) Where a person is convicted or cautioned in respect of an offence under section 1(1) of this Act, then any equipment that has been used to take, make, store or distribute indecent images of children shall be forfeited.
(6B) Section 14(1) of the Powers of Criminal Court (Sentencing) Act 2000 (c.6) shall not apply for the purposes of this section.
(6C) Where equipment has been the subject of forfeiture under section (6A) above, a person, other than the person convicted under section 1, shall be entitled to apply to the relevant magistrates' court for return of the equipment if—
(a) the equipment forfeited belonged not to the person convicted under section 1 but to the applicant, and
(b) the applicant did not have knowledge of the taking, making, storing or distributing of indecent images of children, nor could he be reasonably expected to have known.
(6D) The burden of proof for the purposes of section (6C) shall be on the applicant, and the standard of proof shall be the preponderance of probabilities.
(6E) Where the court is satisfied that the conditions set out in (6C) above are met, they may order the return of the equipment to the applicant so long as any indecent images that remain on the equipment can be permanently erased."
(b) In the first line of subsection (7) the words "(2), (6) or (6A)" shall replace "(2) or (6)".'.
Government amendments Nos. 83 and 84.
Sir Paul Beresford: New clauses 7 and 8 and amendment No. 190 are the result of what happened in Committee, where I raised the issue of encryption because I was beginning to become aware of the difficulties that it involves. Encryption is already recognised as a problem under part II of the Regulation of Investigatory Powers Act 2000—RIPA, for short—
under which the maximum sentence for failing to produce a code to obtain access to encrypted material is two years.Anyone with an interest in the activities of paedophiles knows that they collect volumes of pictures and videos of children being sexually abused, and that they film themselves. Such things are quite horrendous and it would be inappropriate for me to continue talking about them as it is not yet 8 pm. Paedophiles use such material for self-stimulation, to join paedophile groups and as a means to purchase photos, drawings and films, which are frequently kept digitally on computers, remote servers, floppy discs, CD-ROMs, storage pens and digital versatile discs. If a person is convicted of possessing such material, the sentence is usually considerably more than two years, and if the material becomes available to the police, the individual runs the risk of being prosecuted for other offences. An individual who is pressed to reveal the encryption code for such material is most unlikely to do so because if he failed to do so he could only be sentenced to two years under RIPA, and would not be put on the sex offenders list.
The Home Office and the police have told me that they try to break the encryption, which can be done in various ways and by several agencies, including national agencies. An expert who works for the Home Office and the police told me that 80 per cent. of codes have been broken so far, which means that 20 per cent. have not been broken. However, I have some doubt about the figure of 80 per cent. because information that I have received from the police shows that materials that are sent for code breaking often do not return and, if they do, there is only a 50:50 chance that the code will be broken. De-encryption also costs a lot of money and takes a long time.
I spoke to an expert from the private sector about this matter. He smiled quietly and pointed out that the technology has reached the stage of using 128-bit encryption, which is effectively impossible to break. There are now programmes to achieve 256-bit encryption and, even more worryingly, they are available to download for free from the internet. Although the programmes are slightly complicated, they are rapidly becoming easier to use.
The new clauses would provide that if individuals who had been convicted of sex offences against children failed to give an encryption code, they would face a sentence considerably lengthier than the current two-year sentence under RIPA. I would hope that the threat of a potential seven-year sentence would inspire such individuals to save the police and de-encryption individuals and groups a lot of time and money by coming forward with information, although I appreciate that one would not expect 100 per cent. of people to react to that.
The Minister listened with interest to the debate on encryption in Committee and we heard soothing noises and were told that the Government would come back to it, which is why I have tabled two new clauses. I hope that he is positive about choosing one of them and although I suspect that I am being more hopeful than anything, one can but hope that he will react in such a way.
Amendment No. 190 is quite simple and its provisions were discussed in Committee. When the police take information technology equipment from individuals who are charged with sexual offences against children, they use it to assist their investigation of the crime. Details of the data are often used in the court case. In practice, the police generally keep the equipment, often even if the owner is cautioned rather than convicted. That happens because returning the equipment to the individual would go against natural justice. It would be rather like giving lollies back to a child, if that is not bad phraseology, because it would give individuals the opportunity to return to their activities. As any IT technician knows, even if attempts are made to erase data, it is quite possible for erased data to be restored. If the data are encrypted, the police have no surety that they are destroying the material or clearing the discs.
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