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Session 2008 - 09 Publications on the internet General Committee Debates Coroners and Justice Bill |
Coroners and Justice Bill |
The Committee consisted of the following Members:Alan Sandall, Committee
Clerk † attended the
Committee WitnessesKeir
Starmer, QC, Director of Public
Prosecutions Mark Stobbs, Director of
Legal Policy, Law Society Linda Lee,
Deputy Vice-President, Law Society Peter
Lodder, QC, Chairman, Criminal Bar
Association Harriet Wistrich, Justice
for Women Sandra McNeill, Justice for
Women Richard Thomas, Information
Commissioner David Smith, Deputy
Information Commissioner Public Bill CommitteeThursday 5 February 2009(Afternoon)[Mr. Roger Gale in the Chair]Coroners and Justice Bill1
pm The
Committee deliberated in
private. 1.7
pm On
resuming—
The
Chairman: Good afternoon, ladies and gentlemen. I remind
the Committee and our witnesses, those immediately with us and those
who are joining us later if they are already in the room, that we are
bound by the internal knives agreed by the Committee on Tuesday
afternoon. That means that the first session has to end at 1.40 pm, the
second at 2.30 pm, the third at 3 pm and the fourth at 4 pm. I have no
desire to interrupt Members, as I am afraid I had to on Tuesday
afternoon, but if someone is speaking and the clock ticks past, I will
have to stop them and move them
on. Without
further ado, let us hear the first evidence from the Director of Public
Prosecutions, Mr. Keir Starmer. Good afternoon and thank you
for joining us. We are deeply grateful to you for
coming. Keir
Starmer: It is a
pleasure. Mr.
Henry Bellingham (North-West Norfolk) (Con): My hon. and
learned Friend Mr. Garnier will ask about clauses 41 and 42.
May I ask you some quick questions about clauses 49 to 52? Those
clauses contain various definitions, such as “reasonably be
assumed,” “impression conveyed” and
“legitimate reason”. Do you think that such terms might
be too subjective and might make it difficult to obtain prosecutions
for the new offence? How will you interpret those terms in
practice? My
second question is about the fear and concern that have been expressed
by people in the arts world that there may be items of genuine historic
interest that could be brought within the scope of the Bill. I do not
think that anyone—certainly no one I have spoken to—has
any truck with or time for the warped, depraved individuals who want to
look at these things. However, if one looks back in history, some works
of art are pretty pornographic. What is your estimate of the likely
number of prosecutions annually for the offence of possession of a
prohibited image of a
child? Keir
Starmer: The interpretation would obviously be a
matter for the courts. In so far as this is bringing pseudo-photographs
and images into alignment, there have been no practical difficulties
with these provisions. I do not anticipate that there will be. In so
far as there are artistic considerations, they are obviously
recognised. These provisions will inevitably fall within the framework
of article 10 of the European convention on human rights and therefore,
in so far as any interpretation is
needed to comply with article 10, that will be done by the courts in due
course. That, I anticipate, will enable defences to be run that are
consistent with article 10. May I come back to you on the question of
the number of likely cases, as I am not in a position to give you an
answer
now?
Q243
Mr.
Tim Boswell (Daventry) (Con): Briefly, I understand that
under clause 49 there will be a requirement for consent by the relevant
Director of Public Prosecutions. One would assume that if the image is
a prohibited image of a child it should be a fairly open and shut
matter of fact. Do you need the safeguard of the DPP and why? What is
the thinking
there? Keir
Starmer: That goes to the heart of the question of
what the consent provisions are for generally. One purpose of the
consent provisions is to enable the Crown Prosecution Service, through
the DPP, to look at these provisions and to ensure that private
prosecutions are not brought in inappropriate circumstances. So there
is that additional
safeguard.
Q
244Alun
Michael (Cardiff, South and Penarth) (Lab/Co-op): I want
to go back to Mr. Bellingham’s question. You may need
to cover this in supplement too. The UK has been particularly
successful in taking down images of child abuse online, but that whole
operation and the co-operation between industry and non-governmental
organisations and the enforcement authorities has thrown up a lot of
evidence and cases to be investigated—the actual abuse, as
distinct from the images online. The likely number of prosecutions and
the extent to which success is being achieved in both the investigation
and the follow-up of those cases arising out of the identification of
images where they are sourced within the UK are important issues. Could
you clarify that for us, both in terms of what is happening at the
present and the
projections? Keir
Starmer: Yes, we will do whatever we can to assist on
both those
issues.
Q
245Mr.
Edward Garnier (Harborough) (Con): May I ask you a
detailed question in relation to clause 49(2)(c)? Does the
word “disgusting” add anything useful to the Bill and
does it make your life as the Director of Public Prosecutions
easier? Keir
Starmer: It is a familiar formula. It certainly does
not make life any more difficult. That is exactly the sort of law that
would be subject to article 10
consideration.
Q
246Mr.
Garnier: The last time you and I met on a formal occasion
was when you were giving me a lecture on the European convention under
the Judicial Studies Board, for which I was extremely grateful. I still
am. What is the difference between “disgusting” and
“grossly offensive” in this context, or
“otherwise of an
obscene
character”? Keir
Starmer: There is some case law to suggest that the
two are slightly different. I accept that in practical reality there
are unlikely to be many cases that are sufficiently disgusting but not
grossly offensive, but I would not for that reason suggest that it was
an unhelpful formulation.
Q
247Jenny
Willott (Cardiff, Central) (LD): An issue that came up the
other day when we were talking to the Internet Watch Foundation is how
the use of the internet relates to possession. Clearly, if you are
downloading images on to your computer, the computer retains a record
of the image being in your possession. However, the equivalent of
YouTube videos are actually streaming, so they are never on your
computer. Is there a legal loophole that means that people would be
able to watch those kinds of images without technically being in breach
of the measures, when if they watched the same image in a format that
involved downloading, they would be in
breach?
Keir
Starmer: Not that I am aware of. I do not think that
that loophole is in this provision.
Q
248Jenny
Willott: But if someone is watching streaming images
online, there would be no actual copy on their computer, so they would
not technically be in
possession. Keir
Starmer: It would be for the courts to interpret the
meaning of possession. We would proceed on the basis that there should
be no such loophole.
Q
249Jenny
Willott: On the question of the definition of
“image,” I think that the various references to
pseudo-photographs are reasonably clear, and capture the original
intention that the Government laid down—to include cartoons or
computer-generated imagery that are so lifelike as to look like photos
of real children. However, the definition of
image— “a
moving or still image...produced by any
means”— seems
extraordinarily broad to me. If I scrawl a pornographic image on a
piece of paper, would it be covered by that
definition? Keir
Starmer: I anticipate that it would
be.
Jenny
Willott: Is there anything to ensure that what is picked
up was originally intended, or is the net so broad that a much larger
group than was originally intended could be caught be the
provisions?
Keir
Starmer: In that regard, the safeguard is in clause
49(2) and the three conditions that have to be satisfied whatever the
form of the image.
Jenny
Willott: I am not quite satisfied with that answer, but it
is not Mr. Starmer’s problem so much as the
Minister’s. I will come back to the issue
later.
Q
250Mrs.
Madeleine Moon (Bridgend) (Lab): May I talk about
encouraging or assisting suicide in the context of the internet? When
we talked to the Internet Watch Foundation, its representatives said
that they felt there would be a problem with many of the sites that are
hosted outside the UK. I do not know whether you have ever seen the
content of any such sites. Often, they are not only explicit in setting
out the methods used, but explicit in almost hounding an individual to
take their life. How difficult do you think it would be to prosecute
when a site is hosted outside the UK?
Keir
Starmer: The act must be within the jurisdiction, and
it depends what the act of encouragement is. It is anticipated that
such encouragement would be covered by the provision. Certainly, that
is the basis on which we would approach the
matter.
The
Chairman: Do we have any further questions relating to
images of child sex abuse? I just want to ensure that we have dealt
with that.
Q
251Dr.
Brian Iddon (Bolton, South-East) (Lab): I want to refer
you, Mr. Starmer, to clause 46, entitled,
“Encouraging or assisting suicide (England and Wales)”.
The language has been rewritten, according to the explanatory
notes, “with
the aim of improving understanding of this area of the
law”. In
your opinion, does it change the law in any way, or will the law be
just the same with the new expressions? In other words, is there any
likelihood of increasing prosecutions with the new wording?
Keir
Starmer: We have approached this on the basis that
the measure does not extend the existing law, and I am therefore not
anticipating that there will be a greater number of prosecutions
resulting from the rewording of the offence. That is how we are
approaching it.
Dr.
Iddon: Are you happy with the rewording? Does it make life
more or less difficult than the existing wording?
Keir
Starmer: No, it certainly does not make life any more
or less difficult than it currently is.
Q
252Dr.
Iddon: I have one further question, about young people who
write morbid poetry or song lyrics and might post them up on a social
networking site. That would not be done with the intention of getting
another young person to think morbidly—hence leading to
suicide—but if it happened, could it perhaps be seen as
encouraging another young person to take their own life?
Keir
Starmer: The answer to that is in clause
46 (2)(b), which states that in those circumstances there
would not be the necessary intent. Therefore, on the face of such an
example, there would not be a prosecution.
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