Mr.
Garnier: The Minister opened by saying that this has been
a superb debate, which I think was a fair description. My complaint is
that this superb debate is taking place in the wrong place. It should
have taken place on the Floor of the House during the course of a
Suicide Act amendment Bill Second Reading debate. We have been
discussing this clause and these amendments for a little over an hour,
subject to the vote downstairs. The way in which the contributors to
the debate—be it the hon. Member for Cambridge, the hon. Member
for Bolton, South-East, the hon. Member for Bridgend or my hon. Friend
the Member for North Wiltshire—have approached it shows that
much needs to be said and a great deal of explanation needs to come
from the Government. To be required to compress the debate into a
debate within Committee is not, although it has been a good experience
to take part in, the most sensible way to develop the law. I seem to
make that point rather a lot. Although I accept—I have said this
before, too—that a bad point is never improved by repetition,
sometimes a good point needs to be hammered home. If I can get it into
the heads of the Government business managers and those who construct
these Bills that this is simply a silly way to conduct the creation of
legislation, I will, I hope, have achieved something. I have failed
over the past 10 years; perhaps in the last year of this Parliament I
will make some
progress. I
do not have any concerns, which the Minister may have implied, about
using modern language. I have no concern about people wanting to update
the way in which offences are defined. So long as it is in English, in
sentences and clauses, and the thing makes sense, I do not care. What
is important is that one does not use the word “modern or
“modernisation” to camouflage intellectual vacuity or a
total lack of
direction. I
am concerned that, for example, proposed new section 2A(2), which will
be inserted into the Suicide Act 1961 and which is covered by my
amendment 423, is largely incomprehensible. I fully understand what the
Minister says about the intention of it. We all know or at least some
of us know about the concept of the attempt to do the impossible, but I
can see it now—I can see David Thomas reading out subsection
(2), to the chuckles of my colleagues at the Judicial Studies Board,
roaring his head off and saying, “I wonder who drafted this
lot.” Then some judge will break his pencil and say,
“Well, I suppose we’ll just have to interpret it as
best we can.” I have now heard the Minister say what she intends
it to mean, and the mad hatter and his tea party can move on to the
next
course. I
shall finish on this point. I have never known my hon. Friend the
Member for North Wiltshire to be concerned about my well-being or
feelings before, but I was
delighted—
Maria
Eagle: He thinks of nothing
else.
Mr.
Garnier: That is also worrying. I was delighted that my
hon. Friend missed most of my speech, because had he heard all of it,
he might have been even ruder about it, but what he missed—I
think that he accepts this—is that the amendments, as a number
of contributors have recognised, were designed to create an opportunity
for a debate. I am not sure whether he was in the Committee Room at the
time, but as I think I also said, the discussion in relation to
amending the Suicide Act, certainly in this Committee under my
leadership and that of my hon. Friend the Member for North-West
Norfolk, in so far as that is the correct way to describe
it—“command” is too grand a word for what we are
about—is a free vote issue. I thought that my hon. Friend the
Member for North Wiltshire would sleep more easily both in Committee
and after Committee, having heard
that. I
want the Government to take seriously the point that I make about the
process in which we are engaged. I have not actually looked at internet
suicide sites. I spent the period between the adjournment at 1
o’clock and 4 o’clock trying to become engaged in
internet banking. I crawled out of my cave and found it all far too
difficult, so I am not sure that I shall be going too far in looking up
internet suicide sites, but I fully appreciate the points that the hon.
Member for Bridgend has made. Indeed, when I visited HM prison Parc in
her constituency last year, as she may remember, it was clear that the
atmosphere in and around Bridgend had been completely dominated by the
huge numbers of young people who had killed themselves, and I fully
appreciate the motive with which she comes into the debate. I just wish
that she had an option to say more of what she wanted to say on Second
Reading—she did take part in Second Reading of the Bill and
mentioned the subject. I hope that she will agree that this particular
area of the law requires its own Bill, and we do ourselves and our
constituents a disservice by crushing the debate into such a limited
forum. That is enough from me on the subject, and I beg to ask leave to
withdraw the
amendment. Amendment,
by leave, withdrawn.
Clause
46 ordered to stand part of the Bill.
Clauses
47 and 48 ordered to stand part of the Bill.
Schedule
10 agreed
to.
Clause
49Possession
of prohibited images of
children
Mr.
Garnier: I beg to move amendment 427, in
clause 49, page 29, line 7, leave
out ‘be in possession of’ and insert
‘publish by any means whatsoever
to another’.
The
Chairman: With this it will be convenient to discuss the
following: amendment 72, in clause 49, page 29, line 11,
leave out
‘disgusting’. Amendment
428, in
clause 49, page 29, line 13, leave
out ‘produced’ and insert
‘published’. Amendment
429, in
clause 49, page 29, line 14, at
end add ‘of the
publisher or of a
publishee’. Amendment
430, in
clause 49, page 29, line 15, leave
out ‘(as found in the person’s possession)’ and
insert ‘on
publication’. Amendment
431, in
clause 49, page 29, line 26, at
end add ‘of the
publisher or of a
publishee’. Amendment
432, in
clause 50, page 30, line 19, after
‘extracted’, insert ‘and
published’. Amendment
433, in
clause 50, page 30, line 20, at
end add ‘of the
publisher or of a
publishee’. Amendment
434, in
clause 51, page 31, line 13, leave
out ‘it is’ and insert ‘he
has’. Amendment
435, in
clause 51, page 31, line 14, leave
out ‘for the person’ and insert ‘where the
prosecution
fails’. Amendment
436, in
clause 51, page 31, line 15, leave
out ‘a’ and insert
‘no’. Amendment
437, in
clause 51, page 31, line 15, leave
out ‘being in possession of’ and insert
‘publishing’. Amendment
438, in
clause 51, page 31, line 17, leave
out first
‘not’. Amendment
439, in
clause 51, page 31, line 17, leave
out from ‘and’ to ‘it’ in line 18 and
insert ‘knew, or had cause to
suspect’. New
clause 35—Responsibility for publication of prohibited
image— ‘(1) A person has
a defence if— (a) he was
not the author, editor or publisher of the prohibited
image, (b) he took reasonable
care in relation to its publication,
and (c) he did not know, and
had no reason to believe, that what he did caused or contributed to the
publication of the prohibited
image. (2) For this purpose
“author”, “editor” and
“publisher” have the following meanings, which are
further explained in subsection
(3)— “author”
means the originator of the image, but does not include a person who
did not intend that an image originated by him be published at
all; “editor”
means a person having editorial or equivalent responsibility for the
content of the image or the decision to publish it;
and “publisher”
means a commercial publisher, that is, a person whose business is
issuing material to the public, or a section of the public, who issues
material containing the image in the course of that
business. (3) A person shall
not be considered the author, editor or publisher of an image if he is
only involved— (a) in
printing, producing, distributing or selling printed material
containing the image;
(b) in processing, making copies of, distributing,
exhibiting or selling a film or sound recording (as defined in Part I
of the Copyright, Designs and Patents Act 1988) containing the
image; (c) in processing,
making copies of, distributing or selling any electronic medium in or
on which the image is recorded, or in operating or providing any
equipment, system or service by means of which the statement is
retrieved, copied, distributed or made available in electronic
form; (d) as the broadcaster of
a live programme containing the image in circumstances in which he has
no effective control over the maker of the
image; (e) as the operator of
or provider of access to a communications system by means of which the
image is transmitted, or made available, by a person over whom he has
no effective control. In a case
not within paragraphs (a) to (e) the court may have regard to those
provisions by way of analogy in deciding whether a person is to be
considered the author, editor or publisher of a
statement. (4) Employees or
agents of an author, editor or publisher are in the same positions as
their employer or principal to the extent that they are responsible for
the content of the image or the decision to publish
it. (5) In determining for the
purposes of this section whether a person took reasonable care, or had
reason to believe that what he did caused or contributed to the
publication of a prohibited image, regard shall be had
to— (a) the extent of
his responsibility for the content of the image or the decision to
publish it, (b) the nature or
circumstances of the publication,
and (c) the previous conduct or
character of the author, editor or
publisher. (6) This section
does not apply to any publication which arose before the section came
into force. (7) For the
avoidance of doubt, the burden of proving or disproving, as the case
may be, any of the facts or matters in subsections (1) to (6) above is
on the
prosecution.’.
Mr.
Garnier: We now move into a completely different realm,
dealing with an adjustment to the criminal law concerned with images of
children, and whether it should be an offence to possess certain
prohibited images. The amendments, standing in my name and those of my
hon. Friends the Members for North-West Norfolk and for Rugby and
Kenilworth, are broadly in two and a half
parts. There
is a simple point regarding amendment 72, which concerns clause
49(2)(c). I want to know what the use of “disgusting” in
the clause adds to the offence. “Offensive behaviour” is
a term that criminal courts, and, I think, most members of the public
who come into contact with pornography or antisocial sexual behaviour,
are aware of, while “disgusting” seems to be simply an
emotive term that does not—unless I can be persuaded
otherwise—help the shape of the clause very much. It is a great
word to spit out and it adds emphasis to one’s sense of
abhorrence at the thing that one is looking at, but I wonder why the
Government think that it is appropriate to use that word in addition to
“grossly offensive”. It leads one to wonder, if the
prohibited image is grossly offensive and disgusting, or otherwise of
an obscene character, where that paragraph leads one to. I think that
the Director of Public Prosecutions, Mr. Starmer, told us in
the evidence sessions that “disgusting” was not an
unusual word to be used in criminal statutes, dealing with this
particular area of
the criminal law, and while I am happy to be corrected, I think that it
is unnecessary and over-egging the pudding. That is the half part of my
two and a half parts that deal with prohibited
images. The
first main part leads us to a discussion on whether the evil or wrong
that we seek to prohibit is best captured by attacking possession of
prohibited images of children or, as we suggest in our amendment, their
publication. For those purposes, publication means the making known of
an image to a third party. It is not the technical process of
publishing a newspaper or book. Making known to a third party is drawn
from defamation
law. My
suggestion—I am entirely open to others—is that we are
dealing with unreal people, not with human beings or children. If we
were, the position would be different, because someone taking an
obscene photograph or creating an obscene drawing of a real child needs
to have the child in front of them doing the obscene act, or depicted
doing it. Here, we are talking about images of children that do not
require the presence of a child to create the image. A silly example is
a disgusting old man—
Mr.
Henry Bellingham (North-West Norfolk) (Con): A
pervert.
Mr.
Garnier: I am grateful to my hon. Friend, who is always
ready with the word that is needed. A pervert in his office or the back
room of his house could be creating grossly offensive, disgusting or
otherwise obscene images. Having drawn them or created them on his
computer, however people do such things, he would be in possession of
it. One could go through the whole of this part of the Bill and decide
that he fits into this, that or the other category, but he would not
have done anyone else any harm. He may have drawn the image for his own
gratification and may look at it, but what he does with it in his house
will not damage the public or the wider
world.
Maria
Eagle: Would the hon. and learned Gentleman be making a
similar distinction if the images were used to groom real children for
abuse?
Mr.
Garnier: The Minister is making my point for me. There
must be third party interaction to groom. The child must look at the
image, and as soon as the dirty old man shows it to the child for the
purposes of grooming, there is publication under my definition, because
he will have made the image known to a third party. That is why we must
work out whether we are trying to stop publication in various
forms—by internet, e-mail or physically showing someone a hard
copy document—for all the sensible, catch-all provisions in
clause 49, or whether mere possession is sufficient to create a
criminal
offence.
Maria
Eagle: I accept the hon. and learned Gentleman’s
point, but the image in his example is not illegal. That is the
point.
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