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The hon. Member for Hornsey and Wood Green (Lynne Featherstone) expressed concern about two-tier justice. Too many of our communities already experience two-tier justice when offenders go unpunished and cause havoc in their communities. That is exactly why the extension that we propose in conditional cautioning and street bail is so important. It is also important to note that it is for the Crown
Prosecution Service and the police to decide whether to issue a caution or press the matter to court. We often hear from both sides of the House that we should put great trust in the judgment of front-line professionals, and that is a useful reminder in this case.
I can advise the hon. Lady that the conditions attached to cautions must, according to the code on conditional cautioning, be appropriate and proportionate. Secondly, it is certainly not the case that unlimited detention is envisaged for breach of the conditions. Under the relevant guidance, custody officers must release individuals, or release them on bail, as soon as practicable. There is additional back-up in the protection offered by PACE—the Police and Criminal Evidence Act 1984. On the hon. Lady’s final point about appropriate training, it is a prerequisite that a constable is fit to execute his or her responsibilities.
The hon. Member for Hornchurch (James Brokenshire) expressed concern about the attaching of punitive conditions. That is an important issue. One of the great virtues of being a by-election winner is that I can share experience of my community with the many Members on both sides of the House who visited it in 2004. For many people in the area that I was elected to serve, the possibility offered by indirect reparation is extremely significant as we go about rebuilding a community of which we are proud.
I commend the Government proposals to the House and urge Opposition Members to withdraw their amendments.
Clause read a Second time, and added to the Bill.
‘(1) Police cautions, including conditional cautions under Part 3 of the Criminal Justice Act 2003 (c. 44), shall not be issued in relation to offences against a child under the Protection of Children Act 1978 (c. 37) and Part 1 of the Sexual Offences Act 2003 (c. 42), save in the circumstances provided for in subsection (2).
(2) Subsection (1) shall not apply where the person issuing the caution believes that the person in receipt of the caution is not likely to commit further offences under the Protection of Children Act 1978 or Part 1 of the Sexual Offences Act 2003.
(3) In this section, child means a person under 16 years old.'. — [Bob Spink.]
Brought up, and read the First time.
Bob Spink (Castle Point) (Con): 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 2— Encrypted data and indecent photographs of a child—
‘(1) The Regulation of Investigatory Powers Act 2000 (c. 23) is amended as follows.
(2) In section 53 (failure to comply with a notice)—
(a) after subsection (5A)(a) there is inserted—
“(aa) in a case to which subsection (6) applies, seven years;”
(b) after subsection (5B) there is inserted—
“(6) This subsection applies where—
(a) a person has been previously convicted of an offence contrary to section 1 of the Protection of Children Act 1978 (c. 37) or section 160 of the Criminal Justice Act 1988 (c. 33); or
(b) the apparatus or data storage device containing the protected information contains an indecent photograph or pseudo-photograph of a child; or
(c) the apparatus or data storage device containing the protected information has come into the possession of any person together with other apparatus or a data storage device which contains an indecent photograph or pseudo-photograph of a child; or
(d) the court is satisfied that the protected information is likely to contain an indecent photograph or pseudo-photograph of a child.
(7) Subsection (b) will not apply where the person to whom the notice is given can show that the protected information does not contain an indecent photograph or pseudo-photograph of a child.
(8) In this section ‘indecent photograph or pseudo-photograph of a child' shall have the same meaning as that set out in the Protection of Children Act 1978 (c. 37)”.
(3) After paragraph 36 of Schedule 3 of the Sexual Offences Act 2003 (c. 42) there is inserted—
“36A An offence under section 53 of the Regulation of Investigatory Powers Act 2000 (c. 23) if subsection (6) of that section applies.”'.
New clause 3— Extension of offences requiring notification—
‘After paragraph 29 of Schedule 3 to the Sexual Offences Act 2003 (c. 42) there shall be inserted—
“29A An offence under sections 48 to 50 of this Act (abuse of children through prostitution and pornography) where the offender—
(b) is or has been sentenced in respect of the offences for a term of at least 12 months”.'.
New clause 9— Police powers of entry and examination of relevant offender’s home address—
After section 88 of the Sexual Offences Act 2003 (c. 42) there is inserted—
“88A Police powers of entry and examination of relevant offender's home address for confirmation of residency and risk assessment
(1) Upon application by a constable of a relevant force a justice of the peace may grant a warrant authorising him to enter premises named on the warrant if he is satisfied that the conditions in subsection (2) are satisfied and that it is necessary for a warrant to be issued.
(2) The conditions mentioned in subsection (1) are—
(a) that it is necessary to enter the premises named on the warrant to confirm the residency and risk assessment of the relevant person;
(b) that it would assist the carrying out of the purpose of confirmation of residency and risk assessment, for a constable of the relevant force to examine and search the premises and the things in them; and
(c) that on more than one occasion a constable of the relevant force has attempted to examine and search the premises and the things in them for the purpose of ascertaining residency and risk assessing the offender and has been unable (whether by not being able to search and examine the premises and the things in them, or by not being able to obtain entry to the premises) to do so.
(3) Section 16 of the Police and Criminal Evidence Act 1984 (c. 60) applies to warrants issued under subsections (1) above as though it were a search warrant issued under that Act.
(4) The power to issue a warrant conferred by this section is in addition to any such power otherwise conferred.
(5) This section does not prejudice any other power of entry, examination, search or seizure.
‘premises' means an address whose address has been notified by a relevant offender under sections 83 to 85 of this Act.‘the relevant force' means the police force maintained for the area in which the premises are situated.” '.New clause 10— Duty on sexual or violent offender to co-operate—
After section 67 of the Criminal Justice and Court Services Act 2000 (c. 43) insert—
“67A Duty on offender to co-operate
(1) A relevant sexual or violent offender shall co-operate with any reasonable steps requested of him by the responsible authority.
(a) include, but not be restricted to, providing access to his home address during a reasonable time of day to facilitate a risk assessment by the responsible authority; and
(b) be restricted to steps necessary for them to discharge their responsibility under section 67 of this Act to assess the risk posed by the offender.
(3) A person who without reasonable excuse fails to comply with a reasonable step requested by him under subsection (1) of this section shall be liable upon summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.
‘relevant sexual or violent offender' has the meaning given by section 68;‘responsible authority' shall have the meaning given by section 67;‘home address' shall have the meaning given by section 83(7) of the Sexual Offences Act 2003 (c. 42).” '.Amendment No. 42, in title, line 8, after ‘children', insert
‘and offences relating to child pornography.'.
Bob Spink: According to answers to my parliamentary questions, the police cautioned 807 people in the past two years alone, mostly for taking indecent photographs of children. Given the nature of paedophiles and their tendency to reoffend, it is a fair assumption that some and probably many of those 807 people went on to commit further offences, which may or may not have been detected. Those offences clearly damage our innocent young children. The use of cautions in those circumstances, rather than the public trial that such people deserve, helps them to reoffend and therefore damages our children.
All hon. Members know that those offences destroy children and families. I put it to the House that, if only one of those 807 people went on to reoffend—the House must remember that they have admitted their offence and that they are guilty of an offence against innocent children—the use of the caution was wrong in all cases and should not have been used. Cautions should be used generally only where, first, the offence, which must be admitted in full by the criminal, has only minor consequences for either individual victims
or society at large and, secondly, where offenders are unlikely to reoffend, where the caution will do the job of pulling them up, showing them that what they did was wrong and preventing them from going on to reoffend. Clearly, neither of those two tests is usually met in the case of paedophile activity.
Instead of leaving the decision about whether to caution to a police officer, who may or may not be an expert in dealing with serious child abuse, Parliament—which should protect our children, not the abusers—should prevent the use of cautions for paedophile activity in all but truly exceptional cases. New clause 1(2) sets out the exceptional case, where the officer believes that the offender is unlikely to commit further offences, but that exception would not normally apply. Once paedophiles are apprehended, they should be put through the courts—the right place for such serious offences, thus ensuring that the public are aware of their proclivities and giving parents in the locality a better chance of defending their innocent children by keeping an eye on the offenders.
When the subject was debated before in the House, the argument was advanced that it is sometimes easier to secure a confession and therefore to impose a caution than to secure a conviction. It was argued that it is therefore sometimes possible to pin down someone as an offender by offering a caution, when they might escape conviction if the matter was taken before the courts. That is a serious argument against taking people who abuse children before the courts, and I should like to address it very briefly now.
The offence and its consequences are so serious that I believe that, on balance, a trial in court is the right way forward in almost all cases. The use of summary powers that the Bill generally seeks to extend is not appropriate for such particularly obnoxious offences. I strongly suspect anyway that an offence is only admitted and a caution only accepted by paedophiles when they know that the evidence against them is so compelling that they would be found guilty, since the cautioned criminal will be entered in any event on to the sex offenders register and no reasonable person would accept that lightly without the very high probability or almost certainty of being found guilty at trial.
I am sure the House will be surprised that the use of cautions for such offences has increased almost tenfold over the past few years. I want that trend to be reversed. I want paedophiles to get the justice that they deserve and our children to get the protection that they deserve. I hope that hon. Members will support my new clause, which would let the police, the courts and the public know that the House takes the matter very seriously and is intent on giving maximum protection to our innocent children.
4.15 pm
Sir Paul Beresford (Mole Valley) (Con): I shall speak to new clauses 2, 3, 9 and 10 and amendment No. 42, on behalf of my hon. Friends and myself. I welcome the Minister to his new post. We are not discussing teeth, and I am sure that he and I are both pleased about that, but the subject that we are discussing is very grim, and it is a bit hard for him to be covering it on his first day at the Dispatch Box.
The new clauses strengthen the law against sex offenders, especially against those who offend against children. As the Minister will know from his background research, I have spent some time with the Metropolitan police paedophile unit and the issue has developed into something of a minor campaign for me. There has been enormous co-operation between various Home Office Ministers, civil servants, Conservative Front Benchers and me. Perhaps the best example is the Committee stage of the Sexual Offences Act 2003, which saw some very close discussion and changes. It was an unusual Committee stage because of the co-operation. In effect, the new clauses derive from those discussions.
At that stage, the then Minister, the hon. Member for Wythenshawe and Sale, East (Paul Goggins), asked that the ideas that I am putting forward today be stored for further consideration. Over recent weeks, my small team of Alisdair Gillespie, who is an academic barrister and a specialist in this area, Detective Chief Inspector Matt Sarti and I—we are all on the unit that is working on this area in the Home Office, although I must admit that their attendance is considerably better than mine—had a number of meetings with the Minister’s predecessor to discuss the way forward on the new clauses.
Amendment No. 42 simply broadens the long title to enable the new clauses to be covered. The meat of the clauses starts with new clause 2 on encryption. It is well known that paedophiles collect child abuse pornographic photographic images, some of which are real and some of which are pseudo. There has been a huge increase in such activity with the arrival of the internet, and the activity is expanding massively at the moment. Paedophiles use the images to stimulate themselves and others. The images are sold between individuals, frequently not for financial gain, but for new abuse images. One must remember that every single abuse photograph represents at least one child being abused on one occasion. The thought of new images being constantly produced to fulfil that demand is quite horrific.
Many of the images are in the form of videos or DVDs or are on computers. Increasingly, they are kept on remote storage. Some of the computers that the police collect have no hard drives at all. They are driven or initiated by a disk and the information is stored remotely. Increasingly, the information is hidden by encryption. We used to have simple encryption, but we have moved to 128 bit and, even more, to 256 bit encryption. The software is freely available on the internet and relatively easy to use. Essentially, it is unbreakable.
The other thing that particularly alarms me is that Vista, which is the replacement for Windows OS, is due out generally next year. Once that system is on board the security is such that, when the computer is turned off, it automatically encrypts all the information on it so that when the police collect the computer and turn it on, they cannot break through the encryption. Some information can be destroyed, preventing access by the police. The police clearly need access for obvious reasons. They need to seek evidence against individuals and, frequently—because offenders sometimes work in packs or groups—against others. In a way, perhaps it is even more important that the police can identify the children in the photographs and movies. Once those
children have been located, it is possible to seek care and counselling for them to try to bring them back into a normal life. There is some evidence that abused children go on to become abusers themselves.
The new clause deals with encrypted data found on computers and storage in cases where the police believe that the encrypted data contain abusive images of children. It does not create any new offence or scheme, but rather amends the sentencing regime under section 53 of the Regulation of Investigatory Powers Act 2000, which is commonly known as RIPA. Part III requires a person to comply with a notice issued by the police to hand over the encryption key for protected data. The penalty for a breach is two years, but that is ludicrous for a paedophile because the alternative penalty, if the information was turned over, would often be five years or more and, frequently, having to go on the sex offenders list. Accordingly, it is unlikely that an offender who has indecent and abusive photographs of children on his computer would comply with the notice. To achieve compliance, we need to step up the penalty, so I suggest that such offenders should be liable for up to 10 years’ imprisonment, which is the penalty for contravening section 1 of the Protection of Children Act 1978—there is thinking and a link behind the idea.
The new clause would simply raise the sentence if a court was satisfied that it was more than likely that the majority of the encrypted data consisted of indecent photographs of children. I suggest that the civil burden is permissible because the offence would be not possessing the photographs of children, which would be punished separately, but the failure to hand over the key. The higher sentence would apply only when one of two thresholds was passed: first, that the computer had non-encrypted indecent photos of children or a child on it, as an indication; or, secondly, that the person had 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.
I will move on to new clause 3. Sections 48 to 50 of the Sexual Offences Act 2003, which make provision for the offences of recruiting or controlling a child involved in pornography or prostitution, are not, for some reason, prescribed for the purposes of notification requirements under part 2 of the Act. I am afraid that my Front-Bench colleagues and I missed that when the legislation was passed. Those sections are not being used by the police and prosecutors because they do not have the notification that applies to most of, if not all, the other provisions relating to the abuse of children. I hope that the Minister will agree that there is no valid reason why people convicted of such an offence should not be required to notify the police of their details, because they are directly involved in the abuse and exploitation of children and need monitoring and risk assessment.
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