Jenny
Willott: The amendments follow on from the debate that we
have just had and seek to probe the definitions in the clause. The
Minister has just said that we are talking about the worst, the most
horrific cases and so on—the absolute pinnacle of horror. The
definitions, however, are incredibly broad, so I tabled the amendments
to see if there is a way that they could be tightened
up. Amendment
489 refers to
“a moving or
still image (produced by any means).”
Clearly, that is a very
broad definition. I understand that the Government intend to make
illegal Japanese anime and particular types of cartoon that are
lifelike
and extremely graphic. Such cartoons that the
Government have in mind are primarily computer generated. My amendment
proposes to tighten the words “an image
(produced by any
means)” which
could mean chalk on a board or pen on a piece of paper, and bring them
closer to the Government’s original intention. We have already
had a discussion about what the provision could include. It is not just
hon. Members on this Committee who have concerns. In the response to
the consultation, the Durham constabulary, among others, was concerned
about the broad swathe of images that would be brought in, and the fact
that it would include drawing as well, which was not the
Government’s original intention. Therefore, my aim is to try
focus down the definition.
Amendments
490 and 491 refer to how the age of the person depicted in the images
is defined. The first one relates to subsection (6)(a) in which it
says “the
impression conveyed by the image is that the person shown is a
child”. That
is extremely subjective. What I propose in the amendment—and
what I should like to draw the Minister’s response on—is
to put in a reasonableness test so that rather than the decision on the
image being a subjective view it is one
“that a
reasonable person would
consider”. Subsection
(6)(b) states
that “the
predominant impression conveyed is that the person shown is a child
despite the fact that some of the physical characteristics shown are
not those of a
child.” Clearly,
when we have a photograph of an actual person it is much easier to
determine someone’s age. We can work out how old they were when
the photograph was taken. When it is an imaginary figure that is drawn,
a number of concerns have been raised— including in some of the
responses to the consultation—that Japanese art forms in
particular are often ambiguous, so it is difficult to decide how old
the figure is. My amendment proposes to delete the entire subsection. I
know the thinking behind it is obvious, but I am not sure how it can be
properly implemented without pulling into it all manner of things that
probably should not be illegal. For example, images of an 18-year-old
who is dressed as a child, such as Britney Spears in a pop video,
clearly is not illegal. If it was a drawing, however, it could be
illegal because it would be very difficult to work out whether the
person in the picture was supposed to be over 18 or under 18 and
dressed up as a school
girl.
Maria
Eagle: Has the hon. Lady looked at the images listed in
the
clause?
Jenny
Willott: No, I have not, but I know what the
Government intend and they have made it very clear. However, the
definitions in the Bill are much broader, so it could include all
manner of things that the Government do not intend to make illegal. The
Minister is shaking her head and clearly disagrees, but a number of
people have contacted members of this Committee to raise their concerns
about how broad the measure is. I have no doubt that the
Minister’s intention is to cover the most horrific group of
images. My concern is that the definitions in the Bill are vague and
subjective and do not focus down to that very small group. I should be
grateful if the Minister could comment on that. As these are probing
amendments, I do not intend to push any of them to a
vote.
Maria
Eagle: I will deal with the amendments, but let me just
say something about the definitions. The hon. Lady said that she has
not seen any of the images and does not want to look at them. I do not
blame her, but let me explain the definitions, which she has suggested
are far too wide, of the mischief that we are trying to deal
with. An
image can be a moving or a still image. It would also include data
stored by any means, for example electronic files, which is capable of
being converted into an image. This means that the term image will
cover material available on computers, mobile phones or other
electronic devices. The law on photographic images will remain
unchanged. Therefore, for the purposes of this offence, the definition
of an image excludes an indecent photograph, or indecent
pseudo-photograph, as defined in the Protection of Children Act 1978
and the equivalent Northern Ireland
legislation. In
respect to the meaning of a child, which she has expressed some concern
about, that means a person under the age of 18 years. The law covers
indecent photographs and pseudo-photographs and, therefore, includes
computer-generated images that appear to be photographs. The
development of this new offence, as I explained before, has been
prompted by the concerns of the police and child protection agencies,
dealing with an emerging, serious gap in the law that they have
perceived, about the rise and discovery of explicit, non-photographic
images depicting the kind of horrific sexual abuse of children that all
of us would want to prevent, including, for example, computer-generated
images that would not meet the definition of pseudo-photographs, and
explicit cartoon and hand-drawn images.
8.31
pm Sitting
suspended for a Division in the
House. 8.40
pm On
resuming—
Maria
Eagle: The images that we are discussing, such as
computer-generated images, would not meet the definition of
pseudo-photographs—significantly explicit cartoon or hand-drawn
images. Although the images are likely to fall foul of our publication
and distribution provision, it is currently lawful to possess them. One
of our major concerns is that the images could be used for grooming a
child in preparation for actual abuse, and in the way that my hon.
Friend the Member for Bridgend set out in her contribution to a
previous group of
amendments. Amendment
489 would remove images such as cartoons or drawings from the scope of
the offence. We believe that that is an unacceptable limitation.
Children see cartoon images regularly in day-to-day life. They are a
well-accepted form of entertainment for children, and the characters
are often well known. An offender could easily exploit that
familiarity, using explicit images created in such formats, and such
graphic cartoon images could be a powerful grooming tool. Reducing the
scope of the offences described in amendment 489 by the hon. Member for
Cardiff, Central could leave explicit cartoon images
in circulation and open to serious misuse, and without the provision the
police would be unable to remove them from people’s possession.
The amendment would create a loophole in the law and in the new
offence, which would be exploited. Amendment 491
would remove subsection (6)(b) from the definitions. Subsection (6)
provides that an image of a person should be treated as an image of a
child if
“the predominant
impression conveyed is that the person shown is a child despite the
fact that some of the physical characteristics shown are not those of a
child.” I
appreciate that that last point may sound unusual, but it is important
to cover circumstance in which a person may try to avoid prosecution by
amending the image of a child slightly—for example, by adding
antennae or animal ears, and then suggesting that the subsequent image
is not a child. That is a real concern. The people who seek to exploit
the provisions and to continue to create what they call legal child
pornography on the internet will use every loophole to try to escape
the offence. It has been carefully structured and amendment 491 could
create another loophole that would render ineffective the offence that
we are seeking to create. We structured the provision carefully to
capture only the images that cause concern. We believe that it is a
robust and sensible response to the concerns raised with us by the
police and agencies at the forefront of child
protection. Amendments
489 and 491 would only water down the offence, leaving it incapable of
dealing with some of the worst images available, and providing a
pointer to those who wish to exploit the situation about how to avoid
the law. They would leave a gap that could be easily
exploited. Amendment
490 seeks to add a further element to our definitions. It would add a
reasonable person test so that an image would be treated as one of a
child if a reasonable person would consider the impression conveyed by
the image of the person shown to be that of a child. We believe that
that test is unnecessary and unhelpful because the words in clause
52(6) are deliberately similar to those that are well established in
section 7(8) of the Protection of Children Act 1978, which have helped
to clarify the content of pseudo-photographs. Those definitions have
been in use for some years, the courts are familiar with them, and the
definitions in our new offence have been tailored to ensure continued
clarity and ease of understanding. Amending the definitions in the way
proposed by the hon. Lady in amendment 490 would lose that continuity
of understanding and reduce the clarity of the definition. For those
reasons, I hope that the she will consider withdrawing her
amendment.
Jenny
Willott: One of the Minister’s first comments was
that I had raised a concern about the definition of a child. I want to
make it clear that that is not an issue that I raised. I raised a
specific concern about the definition of an image and how we know the
age of a person in the image. The Minister has responded to both
issues, but I want her to clarify again the fundamental point, because
I am not entirely sure that she understood where I am coming from or my
argument. The
argument is not a libertarian one that people should be able to do what
they want as long as they do not cause harm to others. That is not the
argument that I am framing. We know, as the hon. Member for Bridgend
said, that the behaviour of people with paedophile tendencies
escalates. I absolutely accept that. However,
the argument that I make is that there is evidence that access to
non-photographic materials acts as a release for people who would
otherwise go on and harm children. At some
point, possibly on Report, we need to return to the issue of what
evidence there is about whether the measures we are debating are likely
to cause more harm to children because there will not be that access to
a release. I am prepared to accept the clause if the Government are
able to show that there is evidence that such materials cause harm and
generate more problems for children. So far, I have not seen any
evidence and the Minister has not referred to any in her comments about
the arguments on both sides of that debate. I am not arguing for a
libertarian approach—this concerns what is best for children
while not criminalising people who are not doing any harm. That said, I
beg to ask leave to withdraw the
amendment. Amendment,
by leave, withdrawn.
Clause 52
ordered to stand part of the
Bill. Clauses
53 to 55 ordered to stand part of the Bill.
Schedule
11 agreed
to. Clause
56 ordered to stand part of the
Bill.
Clause
57Conspiracy
David
Howarth: I beg to move amendment 187, in
clause 57, page 33, leave out lines 30 and
31. After
the rather dark and disturbing topics that we have discussed, amendment
187 might be thought of as some sort of light relief. It does, though,
have some serious aspects. Clause 57 concerns conspiracies by people in
this country to commit offences in other countries. The current
provision is in the Criminal Law Act 1977 as amended. It covers
conspiracies to commit offences outside the UK. Clause 57 seeks to
change that situation by concentrating on England and Wales as opposed
to the UK. That means that it is possible to conspire in England and
Wales to commit an offence in Scotland or Northern Ireland—or
that is the explanation given in the explanatory notes. The Criminal
Law Act has a provision that exempts from the scope of the offence
people who hold office under the Crown; I will return to the matter of
why that situation should exist and what kinds of people it is meant to
cover. However, in terms of clause 57 and the changes it means to make
to the law, that provision—which exempts those who hold office
under the Crown from the coverage of the section—has a rather
startling effect. The effect is—I understand from the
clause—that a conspiracy to commit criminal offences in Scotland
or Northern Ireland by those who hold office under the Crown in England
and Wales, would be lawful. I want to know why that is the
case. Lord
Hurd used to write thrillers in which the plots were based on
conspiracies in Scotland to do with Scottish national politics 20 or 30
years ago. If one were to allow one’s imagination to run wild
one might think that this matter is similar. I venture to suggest that,
instead, it is an accident in the way that the clause is drafted.
However, there is an aspect of it that makes me think that perhaps it
is not an accident. That is, later on the clause endeavours to make
sure that there is no retrospective effect in Northern
Ireland—that the exemption does not cover the legacy cases
there, since they are, of
course, very politically sensitive. If that is the case, the question
still arises as to why there should be this exemption for conspiracies
by servants of the Crown when it comes to crimes that may have been
committed in Scotland and Northern Ireland from now on. That is the
first point. The second
point is what is the interaction between this provision and section 7
of the Intelligence Services Act 1994, the provision that is sometimes
called the James Bond clause? Section 7 of the 1994 Act allows the
Secretary of State to authorise acts—which might otherwise be
illegal—outside the British Isles, in cases where what is being
done is necessary for the proper discharge of a function of the
intelligence service. The provision was controversial at the time and
it still is, especially in light of accusations around Binyam Mohamed,
and similar cases.
Nevertheless,
there is an argument that section 7 of the 1994 Act is entirely
preferable to the blanket provision in clause 57. Section 7 is at least
limited to the functions of the intelligence service and does not apply
to anyone holding office under the Crown—of whom there are quite
a few in this room at the moment. Also, the second advantage is that,
under section 7—I would be grateful for the expertise of the
right hon. Member for Knowsley, North and Sefton, East (Mr.
Howarth) in this matter—there has to be a specific authorisation
by a Secretary of State. Therefore, there is a line of accountability
that does not exist under the clause, with its blanket
immunity.
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