Clause
65
Exclusion of
classified films
etc.
Harry
Cohen:
I beg to move amendment No. 192, in
clause 65, page 46, line 13, after
‘is’,
insert—
‘(a) an image of an
act to which all participants in the production have
consented,
(b) an image the
production of which involves fictional or staged acts performed by
consenting actors,
(c) an image
produced for the purpose of responsible education,
or
(d)
’.
I
am back on my feet again very quickly. In a way, this is much the same
debate, but my amendment sets out issues that should not be caught up
under the clause. It was also suggested by Backlash, but I shall not
repeat its arguments. I have received a paper from Equity, which
stated:
“Equity’s
remit on this issue is limited to areas where the proposed changes may
impact on the work of our members in the entertainment
industry.
Specifically
we are concerned that the current wording of clauses 64 and 65 could
have the impact of criminalising the possession of extracts of
mainstream certified films featuring our
members.
This is due
to the combination of a subjective judgement of whether the images
‘appears to’ have been produced for sexual
arousal...whether it ‘appears to’ be an extreme
image...and that extracts from classified films are not
excluded...As members of the Standing Committee on the Bill have
already been informed, even clips from mainstream films such as
Casino Royale could become illegal if possessed and distributed
in isolation. Therefore, while not wishing to dilute the intention of
this proposal, Equity would be keen to ensure that the work of our
members was not criminalised in this
way.”
I shall
not repeat the other arguments that have been expressed.
Equity’s point is that people performing legitimately should not
be
criminalised.
Mr.
Walker:
Does the hon. Gentleman not consider that it is a
slight contradiction for an act to be obscene in one context, but not
obscene in another
context?
Harry
Cohen:
Well, we have had such a debate before, and there
is a host of inconsistencies not least in the dreadful Longhurst case
when the man was murderously deranged. He could easily have picked up
committing such acts from watching classified horror
films, which are 10 a penny all over the place. In a way, that is the
point that the hon. Gentleman is making. Yet it is not covered by the
Bill, so there is a problem. Moreover, such films are legitimate
entertainment for the majority of people, more than 99 per cent. of
whom would not copy any of the acts that they had seen performed. There
are inconsistencies in the way in which issues have been dealt with
under the Bill, but we have had that debate. I do not want to reiterate
it. Such a point was well made by Liberty, too, in some of its
representations. It said that some classified films and images could be
caught.
Maria
Eagle:
The purpose of the amendment tabled by my hon.
Friend the Member for Leyton and Wanstead is to exclude from the scope
of the possession offence extreme pornographic images that depict
participants who have all consented to the production of the image;
extreme pornographic images, the production of which is fictional or
staged; and extreme pornographic images that have been produced for
educational
purposes.
On the face
of it, particularly in view of my hon. Friend’s earlier
amendments, I understand what he is proposing. However, his amendment
is problematic. As for fictional or staged acts under paragraph (b) of
the amendment, there is considerable overlap with the amendments to
clause 64 that we have already dealt with. The effect of the amendment
would be to exclude from the offence an image that did not depict a
real event. As I have explained, whether the events depicted are real
is not, in the context of the offence that we have established under
clause 64, the most important issue. That also applies to the
amendments.
5.45
pm
As for consent,
to which reference is made under paragraphs (a) and (b) of the
amendment, but most pertinent under paragraph (a), when the events
will, by implication, be real, where an image reaches the thresholds to
which I have referred in respect of its pornographic, extreme and
convincing nature, we consider that it is right that it is caught by
the offence, notwithstanding any consent on the part of the
participants. Again, the offence is about the impact of the images, not
the circumstances of their production. The impact of an image is not
affected by whether the participants consented or whether the events
depicted are real. The capacity for transmission of an image is not
affected by whether it is real or whether there was consent. It is for
those reasons that the Government do not consider that those things
should be elements of the offence. The proposals concern material that
we believe would already be illegal to publish and distribute in the UK
under the Obscene Publications Act. That Act is not limited, as I said,
to material that depicts real events or non-consensual
activities.
Paragraph (c)
of the amendment concerns educational material. Some groups produce
material for educational purposes so that information about sexual
activities that carry a risk of harm can be given in such a way as to
enable those activities to be carried out safely. But the proposals
cover images that meet the thresholds in terms of their pornographic
extreme and convincing nature. It ought to be possible to produce
educational material without breeching those thresholds. The thresholds
are high, although I appreciate that the offence that we are creating is
an offence of possession. I appreciate the hon. Gentleman’s
concerns, but I do not believe that we can accept the
amendment. A point was made about how an
image can fall foul of the offence in one context but
not, say, if it appears in the middle of a film. Because of how we are
defining the measure, the purposes for which the image is produced are
significant. An image that is principally produced for sexual arousal
would clearly and squarely fall within the offence. The scene in
“Casino Royale”, which I have had described to
me—[
Interruption.
] I should get out more;
almost everybody else has seen it. There is no way, in the context of
that movie, that the scene was produced principally or solely for the
purpose of sexual arousal. I say that on the basis of the definitions
that we currently have. I am not saying that I do not understand why
those who criticise the definitions in the Bill will stand up and say,
“How can it be? How can it be caught in this context and not in
another—that’s not sensible?”, but the offence is
to do with context. On that basis, I hope that my hon. Friend will
withdraw the amendment, and I commend clause 65 to the
Committee.
Harry
Cohen:
I am grateful to the Minister for that thorough
reply. I have only one comment. On “Casino Royale”, if
the Minister saw the whole film, she would be okay, but if she saw only
the scene to which she referred, she could be accused of her own
offence—or perhaps not. I do not wish to delay further the
Committee, and I beg to ask leave to withdraw the amendment.
Amendment, by leave,
withdrawn.
Clause
65 ordered to stand part of the
Bill.
Clause
66
Defence
Question
proposed, That the clause stand part of the
Bill.
Mr.
Heath:
I shall be very quick. Do I take it from the
Minister’s comments on the previous clause—I think that I
do—that she would not consider a further defence: that the
person in question reasonably believed that no one portrayed in the
image was made to act against his or her will? That was the nature of
the amendment tabled by me and the hon. Member for Leyton and Wanstead,
which unfortunately, was tabled too late to be selected for debate. We
nevertheless feel that it is worth asking the Minister to
respond.
Harry
Cohen:
I shall not keep the Committee for long, but
Liberty has made the point that the burden of proof is unfairly on the
defendant, including when the matter in question is highly subjective.
Liberty argues that the burden of proof should be placed on the
prosecution as far as possible, as is the case in the normal run of
things for all sorts of offences. When my hon. Friend the Minister
looks at this matter again, will she consider that
point?
Mr.
Garnier:
Before the hon. Gentleman intervened, I was going
to ask the Minister what the Government meant by having a legitimate
reason. Surely—this feeds into the point that the he
made—it is for the
prosecution to prove that the possessor of the image had no legitimate
reason to possess it. That is the guts of the offence—the
unlawful possession of an extreme pornographic
image.
Maria
Eagle:
I will answer the latter point first. The hon. and
learned Gentleman thought up one answer already when
he referred to police officers in rooms looking at this material in the
course of their job, with quite legitimate reasons to do so. That would
be one example, and there may be others, but certainly there will be
some people who need to look at this material for the purposes of law
enforcement. There may be others who work for ISPs who operate filter
systems that block this material coming from servers into their ISP,
who also would have legitimate reasons for being in possession of such
material. It is that kind of possession that we are seeking to deal
with in the clause.
The clause sets out defences
for a person charged with the offence of possession. It is not the
intention of the Government to penalise people who may stumble across
the material when using the internet or who have it sent to them
without their consent, or to penalise those who need to possess it for
a legitimate reason. The defences mirror arrangements that already
exist for those charged in respect of the possession of indecent
photographs of children under the Criminal Justice Act 1988.
On the points made by my hon.
Friend the Member for Leyton and Wanstead and the hon. Member for
Somerton and Frome—the relevant amendments tabled in their names
were not called—I think that they both know the answer to those
points, because we dealt with them in considering previous clauses.
Providing the defence that the image was made by consenting couples or
groups does not deal with the fact that we are trying to catch the harm
caused by the images themselves and their impact on those who view
them, rather than the impact on the participants, whether they
participated because they wished to or because they were forced to. On
that basis, I hope that the Committee will accept clause
66.
Clause 66
ordered to stand part of the
Bill.
Clause
67
Penalties
etc. for possession of extreme pornographic
images
Maria
Eagle:
I beg to move amendment No. 211, in
clause 67, page 47, line 40, leave
out subsections (5) and
(6).
The
Chairman:
With this it will be convenient to discuss the
following: Government amendments Nos. 243 and
218.
Government new
clause 33—Special rules relating to providers of information
society
services.
Government
new schedule 1—‘Special rules relating to providers of
information society
services.
Maria
Eagle:
Government amendments Nos. 211 and 243 are minor
technical amendments to tidy up the Bill and clarify one matter
relating to Northern Ireland.
New schedule 1 replaces the provisions in subsections
(5) and (6) of clause 67 that deal with registration requirements under
part 2 of the Sexual Offences Act 2003. There is no change to the
effect of the subsections, but transferring them to new schedule 1 is
more consistent in terms of the overall structure of the Bill. One of
the amendments also effects a clarification relating to Northern
Ireland. New clause 33 and new schedule 1 ensure that the provisions
that make illegal the possession of extreme pornographic material are
consistent with the UK’s obligations under the e-commerce
directive. I will provide further details if people are really anxious
to learn
more.
Amendment
agreed
to.
Clause
67, as amended, ordered to stand part of the
Bill.
Clauses
68 and 69 ordered to stand part of the
Bill.
Clause
70
Maximum
penalty for publication etc. of obscene
articles
Question
proposed, That the clause stand part of the
Bill.
Harry
Cohen:
I am sorry to delay proceedings, but I have come
across an e-mail from a constituent on this issue. The clause will
increase the maximum sentence for the publication of obscene articles
from three years to five years. He
writes:
“The
Obscene Publications Act is rarely used but, when it is, defendants are
invariably given a disproportionate sentence. I
have evidence from several cases to support this claim. For example, in
the well-known case of Stephane Perrin, he was sentenced to 30 months
when found guilty of publishing a single obscene image. This change
would have increased his sentence to nearly 5 years, a sentence
reserved for crimes such as manslaughter, violent assault and drug
dealing. Current
sentencing guidelines date back to the 1970s and there are no plans to
review them.”
He then
gives an example that predates video and the
internet. The point is that the sentencing guideline
is increasing the sentences without looking at comparisons across the
board to see what would be appropriate in such
cases.
Angela
Eagle:
The point here relates to the hierarchy of
offences. The clause will increase the penalty for offences on
indictment, under section 2 of the Obscene Publications Act 1959, from
three years to five years. It is related to clauses 64 and 67, which
make illegal the possession of a limited range of extreme pornographic
material illegal. The maximum custodial sentence in that case is three
years’ imprisonment. The Government are determined to act
against publishers and distributors of such material where we can. That
is a more serious offence than possession, so there needs to be a
consistency in sentencing. I hope that that explanation satisfies my
hon. Friend.
Clause
70
ordered to stand part of the
Bill.
Mr.
Sadiq Khan (Tooting) (Lab): I thank the officials of the
Committee for their hard work and
patience.
Further
consideration adjourned.—[Mr.
Khan.]
Adjourned
accordingly at three minutes to Six o’clock till Tuesday 27
November at half-past Ten
o’clock.
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