| Sexual Offences Bill [Lords]
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Mr. Grieve: Another thing that we ought to think about has just crossed my mind. One way or another, we are potentially sanctioning the bringing into circulation—admittedly at this stage just for private use—of pornographic photographs of young boys or girls. If subsequently, at the age of 18, consent were given, those photographs could easily go into general circulation. We are worried about the problem of child pornography, but we are providing a loophole for its production, because, as I understand it, its circulation can postdate by many years the date on which it was originally produced. Sandra Gidley: The hon. Gentleman raises a good point. There are also well publicised situations involving people who are perhaps not within relationships. If people become famous, photographs can be used retrospectively. The hon. Gentleman makes an excellent point about providing a loophole for pictures of young children. Not all 16-year-olds look 16, 17 or 18. There are some very young-looking 16-year-olds whose photographs could be used titillate Column Number: 254 those who have a taste for such things. I am not sure that that is something that we should encourage. However, at this stage, I beg to ask leave to withdraw the amendment.Amendment, by leave, withdrawn. Amendment made: No. 91, in
'''1A Marriage and other relationships (1) This section applies where, in proceedings for an offence under section 1(1)(a) of taking or making an indecent photograph of a child, or for an offence under section 1(1)(b) or (c) relating to an indecent photograph of a child, the defendant proves— (a) that at the time of the offence charged, he was married to the child, or (b) that the photograph was of the child aged 16 or over, and that at the time of the offence charged, the child and he lived together as partners in an enduring family relationship. (2) Subsections (5) and (6) also apply where, in proceedings for an offence under section 1(1)(b) or (c) relating to an indecent photograph of a child, the defendant proves— (a) that at the time when he obtained the photograph, he was married to the child, or (b) that the photograph was of the child aged 16 or over, and that at the time when he obtained it the child and he lived together as partners in an enduring family relationship. (3) This section applies whether the photograph showed the child alone or with the defendant, but not if it showed any other person. (4) In the case of an offence under section 1(1)(a), if sufficient evidence is adduced to raise an issue as to whether the child consented to the photograph being taken or made, or as to whether the defendant reasonably believed that the child so consented, the defendant is not guilty of the offence unless it is proved that the child did not so consent and that the defendant did not reasonably believe that the child so consented. (5) In the case of an offence under section 1(1)(b), the defendant is not guilty of the offence unless it is proved that the showing or distributing was to a person other than the child. (6) In the case of an offence under section 1(1)(c), if sufficient evidence is adduced to raise an issue both— (a) as to whether the child consented to the photograph being in the defendant's possession, or as to whether the defendant reasonably believed that the child so consented, and (b) as to whether the defendant had the photograph in his possession with a view to its being distributed or shown to anyone other than the child, the defendant is not guilty of the offence unless it is proved either that the child did not so consent and that the defendant did not reasonably believe that the child so consented, or that the defendant had the photograph in his possession with a view to its being distributed or shown to a person other than the child.'' ( ) After section 160 of the Criminal Justice Act 1988 (c.33) (possession of indecent photograph of child) insert— ''160A Marriage and other relationships (1) This section applies where, in proceedings for an offence under section 160 relating to an indecent photograph of a child, the defendant proves— (a) that at the time of the offence charged, he was married to the child, or (b) that the photograph was of the child aged 16 or over, and that at the time of the offence charged, the child and he lived together as partners in an enduring family relationship. (2) This section also applies where, in proceedings for an offence under section 160 relating to an indecent photograph of a child, the defendant proves— (a) that at the time when he obtained the photograph, he was married to the child, or Column Number: 255 (b) that the photograph was of the child aged 16 or over, and that at the time when he obtained it the child and he lived together as partners in an enduring family relationship. (3) This section applies whether the photograph showed the child alone or with the defendant, but not if it showed any other person. (4) If sufficient evidence is adduced to raise an issue as to whether the child consented to the photograph being in the defendant's possession, or as to whether the defendant reasonably believed that the child so consented, the defendant is not guilty of the offence unless it is proved that the child did not so consent and that the defendant did not reasonably believe that the child so consented.'''. —[Beverley Hughes.]
Sir Paul Beresford (Mole Valley): I beg to move amendment No. 230, in
'(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 preponderence 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)'.''.'.
You and the Committee, Mr. Griffiths, will be very aware from our discussions and the briefing that paedophiles collect all sorts of things. The Committee's predominant concern is pornographic photographs, prints, drawings and other images. In the past, those have been kept as hard copy, as we now call it, or on 8 mm film and videos. However, for the purposes of self-stimulation, distribution and membership of various paedophile groups, paedophiles are now using computers. They often store information on hard discs of computers, but, increasingly often we find that their computers do not have hard discs; they use floppy discs, storage pens, CD-ROMS, DVDs and, increasingly, remote storage. Crucially, stored material may be encrypted and the keys to the encryption, or at least some aspects of it, are probably on the computer. The present situation is that if a paedophile is convicted, the police need to get a court order in respect of the equipment. To my regret, I find that that does not always happen—it should happen, but it is not automatic, and the police or the CPS may forget to ask. There is another aspect to my amendment. An individual who is cautioned can ask for the equipment Column Number: 256 to be returned, as can those who have been pursued by court order and had equipment taken away. Generally, the police try not to give the equipment back. Frequently, the material on them can be deleted, but it is possible to retrieve material after a straightforward deletion. I understand that forms of overwriting can overcome that, but the police should not be put to that extra task. This may be apocryphal, but I understand that sometimes equipment ''suffers an accident''. Somewhere in the office a hard disc is broken or trodden on, a floppy disc is lost or a CD-ROM is broken or severely scratched and so on. However, many paedophiles are beginning to realise that they can ask for the stuff back. I suspect that the Committee would agree that forfeiture should be automatic.A recent interesting case caused me to rethink my amendment to deal with a situation in which not all the equipment belongs to the convicted or cautioned individual. A House of Commons clerk had used House of Commons machinery. According to my original thoughts on the matter, in that case, the House of Commons would not have got its machinery back, which would be somewhat sad. I therefore added a bit to the amendment to allow an application for retrieval by the owner of the equipment, if the owner is not the perpetrator of the offence. I shall not press the amendment. As I did not have a legal career before Parliament, putting amendments together can be rather difficult, particularly in my position, where the maximum number I can count to is about 32, for obvious reasons. I have to be somewhat careful. Even this morning, I found a potential flaw in the amendment. In a way, I have set the police an impossible task—increasingly, the computers that are being seized have no hard disc. They are booted with a floppy disc and put online to pick up material, particularly using servers that are in countries such as Nigeria, which is not very interested in the sort of stuff that is stored on computers. Such computers would be impossible to seize, so I probably should have included a provision in the amendment to specify any equipment taken by the police as part of their investigation, or some argument along that line. However, I suspect that the Committee is au fait with what I am trying to do. I hope that Members will agree with the thrust of the amendment and that after a short discussion we can accept the intention and on Report have an amendment written by someone who is not from my professional background but who is legally qualified.
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