| Sexual Offences Bill [Lords]
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Mr. Randall: I am querying what would happen if the photographs were viewed by somebody else, albeit in a technical sense—bearing in mind that we are talking about photographs of children under 18, rather than adults. Beverley Hughes: We are talking about activities being investigated by the police or Crown Prosecution Service that involve people who have taken part in a meaningful way in the production of photographs or pseudo-photographs without the consent of the child. A person who developed photographs could technically be liable, as is the case now, but it is unlikely that they would be prosecuted if they had simply developed the photographs. The focus of the police investigation and prosecution would be on the people who had perpetrated what was regarded as the core of the offence. Mr. Grieve: I am sorry but I am going to take the Minister of State back to the other point. She said that the person has to consent, but the person has to consent to the taking of the photographs at the time when they were taken. Six months later, when the so-called enduring family relationship has come to an end, that person might be unhappy about those photographs still being in circulation, but there is no criminal sanction in those circumstances with regard to the retention of the photographs in someone's wallet for the rest of his life. Beverley Hughes: That may well be the case, but that person would have other forms of redress, as the hon. Gentleman knows. However, if originally there was consent, that would not come within the province of this criminal offence. Column Number: 251 Government amendment No. 91 makes the relationship that I have been talking about the central feature of the exception. I am confident that the amendment will allow persons in a marriage or other enduring relationship to make, take, possess or show pictures of each other to each other but will not allow anybody else to be involved in the commission of those activities. The exception will cover a person who can prove that he was living as a partner in an enduring family relationship with the child, or that he was married to the child. Having proved the marriage or other relationship, there is an evidential burden on the defendant to raise an issue in relation to the child's consent to the taking, making or possession of the picture, and his reasonable belief in that consent. In relation to the showing or distribution offence, the defendant is covered by the exception, unless it is proved that the photograph was shown to anyone other than the child. There is not a marriage exception in the Protection of Children Act 1978. Until this Bill is enacted, only children up to the age of 16 will be protected under that Act. When considering what exceptions are appropriate for the offences now that we are raising the age of the child to 18, we have decided that the marriage exception should apply equally to lawfully contracted foreign marriages that are also recognised as valid under the laws of England and Wales. There was a considerable debate on Tuesday in relation to the marriage exception, which applies to child sex offences: as a result of that, we need to re-examine this position. A level of protection from exploitation for young people is appropriate. That is why I cannot accept the Liberal Democrat amendments. The hon. Member for Beaconsfield raised the question of how we define enduring family relationships. He is right that the courts must be left to make that decision in the light of individual circumstances. If he is suggesting that we should try to define that in the Bill, most hon. Members would sensibly recoil from that. However, the fact that it is difficult to define that in the Bill is not in itself a valid argument for not allowing in law the courts to take a view that two people have an enduring relationship that, in their circumstances, is tantamount to marriage and that should therefore be regarded as equivalent to marriage in the context of the exception that we are proposing. Mr. Randall: My only question for the Minister of State is on the last point about enduring family relationships. I offer a layman's point of view. We have been discussing some things that we can set out and let the courts decide on, but we have been saying that other things are too difficult for a court and they give too much leeway to the lawyers to argue. It might be possible to apply the phrase ''enduring family relationship'' to people over 18, but what about if it is applied to somebody of 16 and two months? It would be very difficult, either way, to prove that it is enduring. Beverley Hughes: I agree, and I am sure that that would be the view taken by those deciding whether to Column Number: 252 prosecute and by the court when considering the circumstances of such a case.Mr. Grieve: I am grateful to the Minister and I am extremely sympathetic to the Government's difficulties in trying to steer a course that reconciles the rights of individuals in their private lives with public protection of children. The Government introduced the clause because they thought that there were compelling reasons why protection against the dissemination and taking of photographs should be extended beyond the age of 16 to 18. That is the rationale, otherwise the law would be left as it stands. People, whether they are married or not, may be in need of protection. I worry about the phrase ''enduring family relationship''. I cannot remember the statistics on marriage, but I seem to recollect that the rate of break-up of relationships relates in part to the age when the relationship was first entered into: the younger the age of the partners at the start of a relationship, the higher the rate of break-up tends to be. That does not apply universally and I can think of a number of childhood sweethearts who married and lived happily ever after, but there is some evidence that relationships that start at a young age often do not endure. The Minister accepted that, although civil proceedings could subsequently be taken to protect the person who originally consented to the photographs being taken but who was no longer happy about it, another person may remain in possession of the photographs. The Minister said that we can approach the matter when we return to the famous marriage exception. The Government are looking at that, but unless the marriage exception to sexual intercourse generally is changed, a foreigner who comes to this country to live with his 13-year-old bride could take pornographic photographs of that 13-year-old bride and come within the exception provided in the clause. There are two ways of approaching that problem—one is to get rid of the marriage exception—but it highlights a substantial loophole in the Bill. I do not know what the Committee's view is or what the Minister proposes to do if the matter is pressed to a Division, but I would prefer to go away and think about the problem, as we have done previously in the Committee. There is a general feeling of unease in the Committee about the provision. I accept that people have rights to privacy and to respect for their married life. It is rational to argue that if two 17-year-olds are married and want to take pornographic photographs of each other, that is a matter for them. However, the Government accept that 18 is the age at which they would prefer such decisions to be made and I wonder whether we are not making life too complicated. Why do we not just say: no indecent photographs under 18, full stop? The Minister has not wholly satisfied me of the civil liberties and philosophical reasons for not specifying the age of 18. I am sure that some great debate took place in the Home Office, but the Minister has not persuaded me. Such matters are peripheral to people's private lives and if intimate relationships founder because the state prohibits the taking of pornographic photographs, the sooner they founder the better. In the circumstances, the Bill should just say 18. Column Number: 253 Sandra Gidley: I, too, think that there is a strong case for saying that this decision can be taken only by an adult, whether they are married or not. This may seem a light-hearted suggestion, but I just want to make the point that 16 and 17-year-olds need parental permission to get married. Should we be considering parental permission for such photos? I really do not know. We are trying to protect children, even though they are married. Many agencies regard 16 and 17-year-olds as children. There are long-term effects when relationships break down and a partner is aware that the other partner has such material available and is not quite sure how they will use it. That is worrying. I recently became aware of a case of homophobic bullying over the internet. It involved superimposing a person's face over somebody else's body to make a composite picture. I wondered what would happen if pictures were distributed in that amended form, having been taken within a marriage or enduring relationship at an age of 16 or 17. I am concerned that, if a relationship breaks up and somebody wants to make mischief, there are many creative ways in which to do that. I am not wholly convinced that the provisions give the sort of lifelong protection that we seek for somebody of that age. I will not push the amendment to a vote. We will rethink the matter for Report stage. However, I am not entirely sure that the Government amendment does all that could be done. Beverley Hughes: In her example, the hon. Lady was talking about pseudo-photographs. The exception would not apply to those. In any case, the consent that we discussed earlier can be withdrawn. It must be continuing consent. So, those kinds of photographs are not covered by the exception, and, in any case, consent would be required. Sandra Gidley: I thank the Minister for that clarification. I will withdraw the amendment. I am not convinced that the Government have got things completely right and we may wish to revisit the matter on Report.
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