Police and Justice Bill

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Derek Wyatt (Sittingbourne and Sheppey) (Lab): May I reassure the hon. Lady? I had a ten-minute Bill on the Computer Misuse Act 1990, based on the all-party group on the internet’s inquiry, which was almost a Select Committee-style inquiry.

The provision has the approval of the whole computer industry, so I am fascinated that the hon. Lady has picked up on groups of people on the internet who do not like it. We have worked with the industry
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for the past two and a half years to get it right. Moreover, we have worked with the Home Office and with the industry’s approval. We have been in and out of the Home Office and worked on the clauses and their interpretation. Last week, I was with some of the team who were trying to understand better how we could tweak and rephrase things. I am absolutely confident that we have got it right. If I did not think that, I would say so.

I applaud the way in which the Home Office has worked with MPs from all sides over the past few years on this tiny piece of legislation. It repeals the 1990 Act—imagine what a computer looked like in 1990—and will be the best piece of legislation, I believe, in the world. It beats what America or Australia are trying to do. The hon. Lady should have more confidence in the way in which hon. Members on both sides of the House have worked on the issue, including on the Government amendment.

James Brokenshire (Hornchurch) (Con): My understanding is that the clause is intended to implement, in part, the Council of Europe’s cybercrime convention, which was established in 2001, as we heard. As the hon. Member for Sittingbourne and Sheppey (Derek Wyatt) stated, agreement on creating appropriate provisions to deal with such protections has been long coming.

Cybercrime afflicts us all in our daily work, with its cost to business and our economy. The ease of conducting one’s affairs is significantly impaired if one discovers that one’s computer has a virus and all the information on it is lost. That can damage a person’s personal affairs or, if they rely on a computer system to support their business, their ability to continue trading. I therefore welcome the thrust of clause 35 and the preceding clauses.

However, I do not necessarily agree with the linkage that the hon. Member for Hornsey and Wood Green mentioned in relation to her amendment No. 60. I take her amendment more to be an attempt to seek clarity for the industry, so that it knows that legitimate computer programmers, carrying out their ordinary business of merely supporting computers, but without any intent to help a computer hacker damage computer systems in this country or abroad, will not be penalised or fear that their actions may inadvertently result in their committing a criminal offence, unless there was some intention or even recklessness on their part.

It was interesting that Government amendment No. 148 was moved formally. I hope that the Minister clarifies the rationale behind the change. It was interesting to hear from the hon. Member for Sittingbourne and Sheppey that the proposal had been debated for some time, to give the industry that assurance, so it is perhaps a little surprising for a further change to come through at this late stage. The amendment clearly changes the emphasis behind the original drafting, which referred to a person

    “knowing that it is designed or adapted for use in the course of or in connection with an offence under section 1 or 3”.

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I can understand that the breadth of that provision required some tightening up, hence the Government’s amendment.

It is interesting that the new wording suggested in proposed new section 3A(1)(b) of the 1990 Act refers to a person

    “believing that it is likely to be so used”—

in other words, so used in the performance of a crime under section 1 or 3 of that Act. I have some questions about that, although I respect the hon. Gentleman’s comments about the industry feeling comfortable that the provision provides the protections.

Michael Fabricant (Lichfield) (Con): It is not for me to speak for the Liberal Democrats, but I think that my hon. Friend should recognise that perhaps amendment No. 60 was based on the Bill’s original wording, which the Government have recognised is defective. I suspect—although I hope to catch your eye later on this, Mr. Conway—that Government amendment No. 148, so ably tabled by the Minister for Policing, Security and Community Safety, gets around that problem.

James Brokenshire: As always, I am grateful to my hon. Friend for his interventions, which help us to gain clarity. I agree and understand that the Government’s amendment was, perhaps, in response to the amendment that the hon. Member for Hornsey and Wood Green tabled to gain that clarity. I am sure that we will discover more when the Minister, the right hon. Member for Salford (Hazel Blears), gives some detail on the background to the case—and I would not dream, of course, of creating a new constituency for the right hon. Lady, as she so kindly created a new one for me.

11.45 am

The issue is gaining clarity on the new wording, and the new test set out in proposed paragraph (b) of

    “believing that it is likely to be so used”.

There are two tests: the belief that an article is likely to be so used, and the intention that provision is intended to cover. What proof would be required to show that somebody thought that the article was likely to be used to commit an offence? What test would the prosecutors adopt? We need clarity on the extent and ambit of the provision to ensure that it catches those people who are reckless with the coding or other tools that they create to facilitate the perpetration of cybercrime—a serious and increasing crime that all of us must deal with.

The legislation must provide that protection, but it must not catch people who seek legitimately to provide in the ordinary course of their business services to the computer community. I hope that we can gain satisfaction on that point. It is important to have provisions on the statute book that seek to address this important issue.

Michael Fabricant: With regard to the point made by my hon. Friend, the county of Brokenshire is much more attractive than the county of Blears, but as you, Mr. Conway, were not present when that exchange took place, I had better move on.

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I have the greatest regard for the all-party internet group, which I co-chaired with the hon. Member for Sittingbourne and Sheppey. If there have been three years of close liaison with the Home Office, however, I am concerned about why Government amendment No. 148 has been tabled only at the very last moment and after the Liberal Democrats—far be it from me to praise the Liberal Democrats for surfing the internet and looking at Computer Weekly or whatever magazine they read avidly—suggested it. I welcome the amendment and I can reveal to the Government Whip, the hon. Member for Enfield, North (Joan Ryan), that we shall not vote against it. However, we would have voted against proposed new section 3A(1) of the 1990 Act as it stands.

If I remember correctly from my law degree, which I completed a long time ago—I have never practised law either—there must be something important called mens rea: a guilty mind. There has to be a guilty mind or intent. Mere possession of something without the intent to commit a crime is not an offence in English common law. The situation has now been rectified. Under subsection (1) as it currently stands, a crime could have been committed without a guilty mind or intent, which is plainly wrong. That is why it is welcome to see Government amendment No. 148, which deals with

    “intending it to be used to commit, or to assist in the commission of, an offence under section 1 or 3; or . . . believing that it is likely to be so used”.

I hope that the Minister will explain. She has had three years of detailed negotiations, during which the hon. Member for Sittingbourne and Sheppey has been constantly coming in and out of the Home Office and banging on her door. I dare say that she has constantly been going to Norman Shaw, North to seek advice from the hon. Gentleman, who is so respected as chairman of the all-party internet group. Why is it that despite all that intimacy, if I may use that word, Government amendment No. 148 has suddenly emerged only now, at the very last minute? It is a mystery.

The hon. Member for Hornsey and Wood Green (Lynne Featherstone) was right to raise the issue that hacking tools are often used by computer technicians to rectify problems. I have been very stressed since Monday morning, when I switched on my desktop computer in Norman Shaw, North only to get an error message and find that I could not access my programmes, my e-mail or anything else. Fortunately, I have another computer. I phoned extension 2001 and eventually managed to speak to an intelligent life form, although it took a little while, as we know happens with extension 2001.

The Chairman: Order. The hon. Gentleman’s travails are deeply fascinating to the Committee, but we have to get back to the amendment under consideration.

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Michael Fabricant: As ever, I accept your guidance, Mr. Conway. Mr. Graham Lugton, who I suspect is in my room this very moment, might be using that software.

Stephen Pound (Ealing, North) (Lab): Wiping your history, I hope.

Michael Fabricant: The hon. Gentleman says from a sedentary position that my hard drive might be being wiped out. I fear that that may be happening, although I am told that it is not. My point is that Mr. Lugton might have in his briefcase—quite legitimately, in my opinion—software to enable him to hack into my hard drive to rectify the situation and get my computer working again. Under proposed new section 3A(1) of the 1990 Act, he would be committing an offence.

If the Bill is enacted as it stands, without Government amendment No. 148, I can imagine entire columns of people being removed from the parliamentary ICT service. Some would argue that our computers might work better, but that might go off the subject, so I will not test your patience, Mr. Conway. Nevertheless, it is a clear demonstration that one might need to possess that sort of software to do actions for good rather than for ill.

James Brokenshire: My hon. Friend has clearly set out the case for such protections. I hope that his hard drive has not been wiped during his absence in Committee. Does he also accept that it is important to have a further offence, not just involving an intention—for instance, the creation of a tool that could be used in cybercrime—but requiring an additional test? I appreciate that that might be difficult. Perhaps the Minister will clarify it. What if someone is reckless or says, “I didn’t intend it specifically to be used,” although a factual trail shows that that was the practical end effect?

Michael Fabricant: My hon. Friend makes an interesting point. Government amendment No. 148 refers to

    “believing that it is likely to be so used.”

That creates a duty of care. The Minister will probably strengthen or endorse the amendment by stating that there is a duty of care to ensure that the software does not fall into the hands of those who might use it unlawfully.

The issue is important, and it is right that magazines have identified it. I assume that it was Computer Weekly—[Interruption.] It is in fact the Liberty Central website, with which I am not familiar. Nevertheless, we welcome the fact that Liberty Central has identified the issue. Given the constant liaisons, night and day, and at weekends, between the chairman of the all-party internet group and the Minister, and the fact that the Home Office is so dependant on the hon. Member for Sittingbourne and Sheppey for the very workings of government, I am shocked that it has taken so long for the Government amendment to arrive. Nevertheless, despite its belated appearance, I welcome it.

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Lynne Featherstone: I am delighted that amendment No. 60, which was tabled very early, has had such a positive effect on the Government that they have tabled their amendment. We broadly welcome it; it is much better than we thought it might be. There was a danger that an offence would unintentionally be created in respect of a whole range of computer experts, so that they would be illegally hacking unintentionally. I am glad if our amendment flagged up that point to the Government.

I am no expert in these matters, and I have listened to advice from a wide range of sources. I will give to the hon. Member for Sittingbourne and Sheppey the document I printed off the internet on the independent inquiry into Britain’s democracy. I believe that its writer knows what they are talking about and is an expert in computers.

We broadly welcome the Government amendment, and I am glad that I was able to raise this issue by tabling our amendment.

The Minister for Policing, Security and Community Safety (Hazel Blears): Clearly, this is an important area, as the hon. Member for Hornchurch (James Brokenshire) outlined, and it also enables us to implement our various responsibilities under European legislation.

One of the things that the Serious Organised Crime Agency is set up to do is ensure that we can intervene further up the chain when offences are committed—to do much more prevention work and disruption work around areas such as cybercrime. Often, the products involved are available on the internet and can be easily downloaded by end users. This is the important question: how do we get to the manufacturers and suppliers of such internet tools, which can be put to such devastating effect in terms of denial of service? The hon. Member for Lichfield talked about the possibility of his hard drive being wiped out completely. I think all Committee members support the intention to ensure that we can disrupt such crime, which is an increasing problem.

We must also seek to draw the line in the right place, so that we prosecute and bring to justice the people who are working with the intention of disrupting computers, but do not prosecute people who are carrying out legitimate activity. My officials tell me that the clause has been contentious because it is felt that, as drafted, it could criminalise legitimate penetration testers, vulnerability testers and the wider IT security industry. I am sure that there is a perfectly proper definition of what is a legitimate penetration tester, but I will leave that to the cybercrime industry.

Like the hon. Member for Hornsey and Wood Green, I am not an expert in this area, but I am keen to ensure that our law enforcement agencies have the powers that they need to protect the community.

Michael Fabricant: I rise to ask a question, not on the subject of penetration, but about the Department of Homeland Security in the United States. It, too, recognises the potential for cyberterrorism, such as a sustained attack on a Government or on the utilities in a country in order to cause breakdown. The United
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States has put huge resources into countering such an attack. Is the Home Office taking cyberterrorism seriously and are similar resources being devoted to establishing a similar protection not only for Government computer systems and police computer systems, but for our national utilities?

Hazel Blears: I am sure that the hon. Gentleman is aware of the counter-terrorism strategy, CONTEST, which has four strands—to prevent, pursue, prepare and protect. One of the most important areas is protecting the country’s essential national infrastructure. That relates not only to computer areas, although they are important, but to the various installations that provide the very fabric of life in our country. We are therefore constantly aware of the need to prepare as best we can.

The hon. Gentleman spoke about the influence of my hon. Friend the Member for Sittingbourne and Sheppey in this area. First, I am grateful to my hon. Friend for the work that he has done as chairman of the all-party internet group; he has liaised not only with Members of Parliament, but with industry, in order to bring us some expertise. It is right that Departments should be open to discussions and seek to draw in whatever information they can, and I am grateful to him for his role in that.

12 noon

I can tell the hon. Member for Lichfield that we constantly have discussions with industry. Computers, the internet and the use of information are part of a fast-moving world. It is not a matter of coming late to the party, but an attempt to refine and get the balance right. That is the reason for the amendment.

Derek Wyatt: I reassure my right hon. Friend and the hon. Member for Lichfield that a significant private event happened in Washington in February, in which the Government were represented by the secret services and Departments. It considered the very issue that the hon. Gentleman raised. I reassure him that our contribution was substantial; in fact, it was much better than that of the homeland security people in America.

Hazel Blears: That is very reassuring.

I agree with the hon. Member for Hornsey and Wood Green that the new offence to be inserted into the Computer Misuse Act 1990 under clause 35 goes rather wider than originally intended. As drafted, the offence could inadvertently have caught people testing the resilience of their own systems. We explored the approach suggested by the hon. Lady, but it set too stringent a test. If the two limbs of the offence needed to be fulfilled in order for an offence to be committed, it could be difficult to prove the commission of the offence.

The formulation that we have come up with in amendment No. 148 aims to achieve the same outcome as the hon. Lady suggested, but sets it out in a better way. First, we have the limb of clear intent. The hon. Member for Lichfield’s law degree stands him in good
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stead: there needs to be mens rea. I am pleased to say that his memory has not been wiped. The second limb is that it should be believed

    “likely to be so used”.

That is a recklessness test, but a subjective one. If the hon. Member for Hornchurch cast his mind back to our recent debates on the Terrorism Bill, he will realise that we have a similar formulation. The test is similar, but it takes us a little further, so that people who believed that the article was likely to be used in that way would be guilty of an offence. That has a deterrent effect

It is important that people who believe that an article is likely to be used to disrupt systems illegally should not be making it or supplying it. The word “likely” is pretty well known in our legal system, and is not completely open; it is a matter for the courts to decide. Before deciding whether a person is guilty of an offence, a court must take into consideration whether he knew that the tool would probably be used or was expected to be used to commit an offence—that is the kind of sense that the court will consider, but it clearly depends on the evidence. The offence is a criminal offence, so it has to be proved beyond reasonable doubt. Courts will consider the surrounding circumstances, but they are pretty familiar with the meaning of likelihood.

I believe that we have drawn the line in about the right place to send out the clear message to people who make and supply programs that can cause devastating damage not to do so, but not to criminalise legitimate software developers. I note that the hon. Member for Hornsey and Wood Green said on her website—we Ministers surf the net too—that despite her valiant efforts at our last sitting,

    “Hazel was stony ground as per usual”,

and refused to move. I hope that she Lady will agree that today, I have been amenable, that I have listened and been flexible, was open to persuasion and came forward with an amendment that will achieve the outcome that she wants. I hope that she will reflect that in the next entry on her website.

Amendment agreed to.

Clause 35, as amended, ordered to stand part of the Bill.

Clause 36 ordered to stand part of the Bill.

Clause 37

Forfeiture of indecent photographs of children

Question proposed, That the clause stand part of the Bill.

The Chairman: With this it will be convenient to take the following: Government new clause 11—Forfeiture of indecent photographs of children: Northern Ireland.

Government new schedule 2—Schedule to be inserted into the Protection of Children (Northern Ireland) Order 1978.

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Government amendments Nos. 97 to 101, 105 and 106.

Hazel Blears: The clause, which introduces schedule 11, amends the Protection of Children Act 1978. It provides a more effective mechanism for the forfeiture of indecent photographs of children under the age of 18 and the devices that hold them following a lawful seizure. The law currently allows for the forfeiture of indecent images following seizure under a warrant under the 1978 Act. In those circumstances, all material must be brought before the court, irrespective of whether its owner actually consents to the forfeiture. The court has no power to order the forfeit of articles brought before it under other powers of seizure, only those brought under the Protection of Children Act, so articles seized under another power—for example during a fraud investigation—cannot be condemned by the courts under the current law and could be returned to the owners.

That is the loophole in the law that the clause is designed to fill. Technically, the loophole means that indecent photographs of children could be returned to offenders. We are not aware of that ever having occurred, but the clause will fill the gap. Under the current position, if the authorities have gone in with a warrant under the Protection of Children Act, they can get the images forfeited. If the warrant were made under another provision and there was no conviction, people could have their computer handed back to them while it still contained the indecent images of children under the age of 18. I am sure that no member of the Committee would want that to happen.

The clause would close the loophole by replacing the current power under the Protection of Children Act 1978 with a power that allows forfeiture to be triggered by the police rather than the court. The power would allow the forfeiture of the material and any other material that it is not possible to separate from it, irrespective of the power under which the material was originally seized. That is a sensible, straightforward provision. New clause 11 and new schedule 2 make equivalent provisions in respect of Northern Ireland because it has the same gap in its law. It is important that the position is the same throughout all different jurisdictions.

We are changing the provisions so that forfeiture can be carried out by the police rather than the courts. However, is a provision under which, when someone is served with a notice of the police’s intention to forfeit the computers or the hard drive, that person can appeal to the courts and their application can be heard. That is to safeguard the position of third parties who may have some of their own information on the computer on which the indecent images are stored. For example, there could be a situation in which one of the two partners in the same household had been using the computer for their legitimate accounts and the other person in the household had accessed some indecent pornographic images of children. It is right that the third party should have the power to see if the information can be separated before the goods are forfeited. The third party will be able to make an application to the court to do so.

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We have tried to cover a range of eventualities to be fair to all the parties, but I hope that all members of the Committee agree that a loophole that could result in people having indecent images returned to them is not something that we would want to allow. The clause will be a small, but important, addition to our law. It means that, in many cases, horrific images can be forfeited and not returned to the persons who originally downloaded them. I commend the new clauses to the Committee.

James Brokenshire: I rise in the spirit of cross-party consensus and perhaps in a slightly more cuddly and friendly way than the website of the hon. Member for Hornsey and Wood Green suggests, although I am sure that she will correct any impression that may have been given.

I support for the changes. It is a serious issue in terms of the people’s ability either to hold or to distribute indecent images. A bizarre loophole whereby a computer containing indecent images that had been seized for some other reason had to be handed back would be unacceptable and intolerable. We all want to crack down on that most pernicious of offences, which seeks to exploit minors and those least able to defend themselves. There was one such case in my constituency; a conviction was secured, but there was an impact on the community, which felt great disquiet at the fact that someone had sought to exploit children in that appalling way.

The Committee can show its repulsion and abhorrence of such offences by adopting the new clause, tightening the law and ensuring that a clear message is sent to the whole country. I wholeheartedly endorse the clause and the amendments and will welcome their inclusion in the Bill.

Lynne Featherstone: We totally support the clause and the amendments. I am delighted that the Minister is not always as stony as my blog may have indicated.

Question put and agreed to.

Clause 37 ordered to stand part of the Bill.

Schedule 11 agreed to.

Clause 38 ordered to stand part of the Bill.

Clause 39

Amendments to the Extradition Act 2003 etc

Question proposed, That the clause stand part of the Bill.

Ms Celia Barlow (Hove) (Lab): We can be proud of our judicial system in this country. The enduring image of the statue of justice on top of the Old Bailey is seen as the very symbol of the fairness and impartiality of British justice. I wish to raise concerns about a possible circumvention of British law as a consequence of the Extradition Act 2003, which rightly enables us to work alongside the United States in the ongoing fight against terrorism.

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I understand the need for terrorist suspects to be extradited to the United States when there is due reason to suspect that they are a threat to the security of the American homeland. However, I do not fully appreciate why the 2003 Act should extend beyond terrorist subjects. I am sure that most of us are familiar with the case of Ian Norris and the NatWest three—British citizens working for British companies who face trial not by British courts, but by United States courts, on allegations of fraud. It is absurd that our citizens could face extradition to the United States for crimes allegedly committed on British soil and largely against British company interests, particularly when no prosecution has been forthcoming in Britain. That is taking the principle of outsourcing one step too far.

I find it troubling that an extradition request can be made purely on the basis of a statement of fact about the alleged offence, as opposed to the serving of evidence, especially as Britain must produce evidence to secure an extradition from the US. I believe that an amendment to the Bill that would close that gap might be considered by the Minister at a later date, and I encourage her to do that.

Our business is now conducted in a global economy; UK business now has worldwide interdependency as never before. Understandably, organisations such as the Confederation of British Industry are worried when another country with laws different from ours is able to affect machinations in our own country. I do not advocate that those accused of committing corporate fraud should be allowed to walk free, but it is worth considering that our allies should have faith and confidence in our judicial process, which has evolved over hundreds of years. Perhaps the Minister will consider that we have an opportunity to work closer with our judicial counterparts in the United States on matters such as these.

12.15 pm

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