Criminal Justice and Immigration Bill

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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?
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

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.
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:
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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