Coroners and Justice Bill

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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?
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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