Mr.
Garnier: I am not seeking to blow the whole clause out of
the water. I want to amend it in a way that deals with the public
policy point that we should concentrate
on. We want to protect people from being affected by other
people’s revolting behaviour. The dirty old man, to whom my hon.
Friend the Member for North-West Norfolk referred, may create an image
for his own gratification, but as long as he does not show it to anyone
else there is no public harm, which the criminal law needs to think
about.
Mr.
Boswell: Although I respect and have a good deal of
sympathy with my hon. and learned Friend’s argument, will he
consider the circumstances if it was unclear whether the image before
the court, if action were taken, was an actual image that had involved
the exploitation of a child, or a synthetic image that had not? It
could even be a blend between the two. Perhaps the Minister is
reflecting on that, and perhaps it is partly a reason for the
Government’s thinking on the
matter. 6.19
pm Sitting
suspended. 7.30
pm On
resuming—
Mr.
Garnier: Before we adjourned, my hon. Friend the Member
for Daventry asked me about a situation in which there was a mixture of
what might be a real image and an imagined
image.
Mr.
Boswell: I also wish to ask about the nature of the image,
and the circumstances when it was taken from a live subject, which
would clearly be illegal under the present provisions, or taken from a
computer construction that had no human subject, which might be a
matter of evidence and difficult to
prove.
Mr.
Garnier: My hon. Friend has answered his own question.
Such a matter would be evidence that would have to be considered by the
police and the prosecuting authority and, if it got beyond them, by the
court. It is a matter of fact that someone would have to deal with at
various stages of the
process. Our
adjournment has enabled me to conclude that I had probably said quite
enough about my first main part of the discussion on whether public
policy is better served by the offence being that of possession
compared with that of
publication.
Mrs.
Moon: May I clarify matters? The hon. and learned
Gentleman is pushing a fairly libertarian policy, and I want to be sure
that my understanding is clear. What is being argued is that possession
would not be a criminal offence, but making such material available to
a third party or sharing it with a third party would be an offence. If
we are talking about images of children of a sexual nature, how does
that square with people growing cannabis for their own use but not
selling it, or engaging with consenting adult friends in sado-masochism
but not inviting those who are not consenting adults to take part? How
does possession as opposed to sharing square with those
contradictions?
Mr.
Garnier: The hon. Lady is talking about two completely
things. I am not sure that they need to be squared. I really do not
think that I need to take the matter much further unless she wishes to
explain her
question better. I am talking about protecting
children from abusive people. Such matters are obvious in the case of a
photograph because to take a photograph of the sort that might be
described under clause 49(7), active participation is needed and
whether it is willing or otherwise makes no difference. The active
participation is needed of an immature human being—a child. To
draw a real individual in a way that would come under subsection (7), a
real individual would be
needed. An
individual who sits in his back shed and constructs for himself, for
his own gratification and that of no one else, an imaginary image
strikes me as something that does not affect the wider public, although
that is a matter of debate. Public policy needs to bite at the moment
that the person makes the image available to third parties and the
effect of the grossly offensive or disgusting image impinges on a third
party. I am not sure that such matters have anything to do with smoking
cannabis in private, taking heroin in private or engaging in other
illegal activities in private. We are worried about where the balance
lies. Should it lie in outlawing the simple possession of disgusting,
obscene images created by oneself for oneself or should we outlaw them
only when they are made known to the
public?
Maria
Eagle: Does the hon. and learned Gentleman accept that
downloading from the internet a pseudo-image that is not based on a
real photograph equates to possession? Many of us think of it as
publication or we think about it as prior to the internet. People are
not necessarily creating the images for themselves but downloading
them.
Mr.
Garnier: Yes, but that is not the case I am talking about.
If I create an image that comes within the definition of a prohibited
image and upload it to the internet, that is publication. The fact that
it may be downloaded by one or 10 million people makes no difference
because I have already published it by putting it on to the net. I am
talking about people who create by drawing, or by however one does such
things on computers, things for their own use, which do not go beyond
that individual. The Minister’s case would come within my
definition for
publication. I
have said enough about the main part of my amendments, so I turn to new
clause 35. Members of the Committee who have any interest in the issues
will have realised without much prompting that new clause 35
is a lift from the Defamation Act 1996. The equivalent section in that
Act provides a defence for people who are technically publishers,
authors or editors of defamatory material but who are not blameworthy.
I am using shorthand to avoid getting into a long and tedious
discussion. The definition of “publisher” in
subsection (2) of new clause 35
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.” That
is not strictly on all fours with the definition that I import into my
amendments in relation to publication as opposed to possession.
However, I do not think that much matters for the purposes of our
discussion. In
new clause 35 I am seeking to protect—as to some extent clause
51 does—innocent disseminators or publishers who have in their
possession material that comes within the definition of a prohibited
image, which they pass on but not with the
requisite criminal knowledge or intent.
I say with the “requisite criminal knowledge” and
“intent” because my suggestion is, as I set out in
subsection (7) of the new
clause, “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”. Therefore,
there should be no doubt that it is for the prosecution to prove that
someone is an author, editor or publisher. It is for the prosecution to
prove that someone did something that removed the defence from them
rather than putting the burden on the defendant to prove his innocence
within the terms of new clause
35. I
shall assume that people have read new clause 35. I could run through
it line by line and persuade people that it was worth including in the
Bill, but I shall assume that people have read it, understand what I am
about, and accept that the principles that I am enunciating are fair
and reasonable and do not in any way undermine the need to protect
vulnerable people, particularly children, from becoming involved,
wittingly or unwittingly, in the activities covered by clause 49.
Nobody would want children injured, emotionally or physically, by
having to participate in the construction of grossly offensive,
disgusting or obscene images, but we are talking about imaginary,
unreal people, albeit made to look almost real in some computer images.
I have not seen them but I am told that it can be done.
I hope that
the Minister will accept the spirit in which I have advanced these
amendments and explain why simple possession, as opposed to publishing
in the sense that I have suggested in my amendment, is the better
course.
Mr.
George Howarth: I was grateful for the break because I was
slightly confused by the arguments of the hon. and learned Member for
Harborough and it enabled me to think about them in more depth. I shall
try to be brief, not least because I know that my hon. Friend the
Member for Wrexham is anxious that we hasten proceedings.
The hon. and
learned Gentleman has got it wrong, both in terms of the
Bill and the principle, in the arguments he was advancing about images
of children in pornography. First, in terms of the Bill, clause 49(3)
says: “An
image is ‘pornographic’ if it is of such a nature that it
must reasonably be assumed to have been produced solely or principally
for the purpose of sexual
arousal.” That
is the first test it has to pass. Subsection (6) defines an image, for
the purposes of the clause,
as “an
image which focuses solely or principally on a child’s genitals
or anal region, or...portrays any of the acts mentioned in
subsection
(7).” I
will not go through what those acts are. I am sure everybody has had
the opportunity to read them. The point I am making is that the clause
makes it clear why those things are unacceptable. It makes it clear in
what context they are unacceptable. I do not understand why the hon.
and learned Gentleman is advancing what appears to be, if he will
pardon the phrase, a somewhat existential
argument.
Mr.
Garnier: I have obviously explained myself extremely
badly. Let me make it clear that I do not approve of things such as the
prohibited images. I think they are
revolting. But should the criminal law make it an offence for an
individual to make for his own gratification drawings or pseudo-images,
which are not real
children?
Mr.
George Howarth: I had not misunderstood the hon. and
learned Gentleman. I am glad that he has just confirmed that I had not
misunderstood him, but my point of principle, where I differ from him,
is this: the three subsections of the clause I have just referred to
are all part of the process. The fact that it is not a real child in
the image—that it could have been conjured from the
person’s imagination—does not make it any less a
paedophile activity. How can the hon. and learned Gentleman say, for
example, that what the elderly gentleman who seems to have been evoked
may do with an image that he has conjured up from his imagination in
the privacy of his own home as part of a paedophile activity, will not
lead to other things? It seems self-evident that if somebody can get
gratification from that sort of activity, it may be but a short step
towards involving real images of children and real activities. I
honestly think that the hon. and learned Gentleman has got it wrong in
principle as well as in terms of interpreting the
Bill.
Mr.
Garnier: If things lead on to other things, that will
create other offences and lead that person to be guilty of them. To
take a ludicrous example, the right hon. Gentleman and I may be
doodling in this Committee room while other people are speaking; of
course, we would not do so, but let us assume that for the purpose of
this argument he and I were separately doodling the sorts of images
described in the measure and that once we finished we tore them up,
threw them away, and showed them to nobody. Would he expect that that
doodling should lead us to be prosecuted under the clause? That is the
sharp point that I am
making. I
appreciate that the right hon. Gentleman may disagree with me; he may
think that the act of making a private drawing should be a criminal
offence, but is that what we are
after?
Mr.
George Howarth: As the hon. and learned Gentleman said, it
is a ludicrous example, but I accept that he was trying to find a way
of illustrating the argument. I will answer him very directly. If he
doodles on the back of a piece of paper during the course of the
Committee, screws it up and throws it away, but somebody retrieves it,
and then it is discovered that it is grossly offensive, disgusting or
of an otherwise obscene character—an image that could be of such
a nature that it would be solely or principally used for the purpose of
sexual arousal—what he had engaged in would be improper and
should not be approved of or sanctioned by the law.
I would like
to make a broader point. The hon. and learned Gentleman said in an
earlier intervention—I did not get around to responding to it
before he intervened on me again—that if the drawings led to
something else, those offences would be subject to prosecution. What I
am saying is that we want those offences prevented. If somebody is in
the process of arousing themselves sexually by that process, it must be
part of something. In a lot of cases, it will be part of something that
will lead on to something else.
7.47
pm Sitting
suspended for a Division in the
House.
8.2
pm On
resuming— Jenny
Willott (Cardiff, Central) (LD): The Committee is rather
depleted, but we carry on the discussion. I believe that there are
strong views about this on both sides of the Committee, as is evident
from the contribution of the hon. and learned Member for Harborough.
This is clearly a very difficult area. It becomes very clear when we
are talking about photographs—it is much easier to see the
rights and wrongs of that because clearly there is a victim and it is
clear that that activity should be
illegal. The
issues that the right hon. Member for Knowsley, North and Sefton, East
just raised are confusing two different issues. I agree with a lot of
what was said by the hon. and learned Member for Harborough: if we are
going to ban more broadly than photographs and pseudo-photographs, we
have to have very clear evidence to show that the change is needed. The
suggestions put forward by the hon. and learned Member for Harborough
would make sense as long as we can show that just looking at an image
does no harm and does not lead to any abusive behaviour.
That leads to
a dilemma: there are two opposing arguments as to how we should react
to this particular case. One is that non-photographic images legitimise
abusive behaviours in the minds of offenders, leading them to act out
the images and display abusive behaviour—the images, therefore,
pose a risk to children. The other view is that they are not
photographic, so there is no victim as such, and they act as an outlet
for individuals who have those tendencies and predilections—they
act as a release, and therefore reduce the risk of abusive behaviour
towards children.
From what I
can gather, it is actually very unclear where the balance lies between
those two arguments. There is not enough evidence to show us which way
we should make the judgment. I understand that there is evidence on
both sides, but not enough to work out which side is in the majority
and therefore which we should follow.
Stephen
Hesford (Wirral, West) (Lab): I am obliged to the hon.
Lady for giving way. Picking up on the notion suggested by the hon. and
learned Member for Harborough, if a dirty old man had one image and
nothing else, the prosecution authorities might conclude that there was
no case to prosecute. That is one way of dealing with it, but there is
another. Does the hon. Lady accept that if there were two or three
images, the authorities could prosecute but the sentence should take
account of the fact that there were just one or two isolated images, as
the damage would be small? The protection of children demands that such
images are controlled in some way. Is that not the
solution?
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