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Those in software development are fully aware of the capabilities of software. Many tools traditionally used by hackers are also used by security consultants when checking a system to make it safe from those doing the hacking. The noble Earl, Lord Northesk, put across far more effectively and succinctly than I ever could the import of his amendment.

Lord Bassam of Brighton: I listened with interest to the noble Earls, Lord Northesk and Lord Erroll, as I always do when they speak on these subjects, and I certainly understand the thinking behind their

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amendments. I also understand that they reflect a concern about how subsection (1)(b) of the new Section 3A offence will be interpreted. The noble Earls explained carefully and very well that the concern rests on how paragraph (b) deals with dual-use tools. Obviously it is not the article that is at issue but how it is likely to be used, and that takes us to the heart of the matter.

The noble Earl, Lord Northesk, is proposing to remove subsection (1)(b), which provides that an offence is committed if a person does any of the listed acts believing that the article is likely to be used to commit a relevant offence. Removing the paragraph would limit the use of the subsection to instances where the prosecution could prove that the article was intended to be used to commit computer misuse offences. We consider it important that the offence covers those who believe it is likely that the article will be used to commit offences, irrespective of intent. Further, the clause as drafted sets a high test to protect those with legitimate intentions. The supplying offence that we are talking about here is very narrowly drawn, and the high threshold that we require to prove the offence underlines that.

The noble Earl, Lord Erroll, has proposed something slightly different. I am extremely impressed by his extensive consultation arrangements on the 9.19 am from Surbiton, or wherever his train was from. It seems a novel way of carrying out consultation on computer misuse; nevertheless, it is valuable for the potential thesaurus that it supplies us with.

We do not believe that his proposed alternative—that of exchanging “likely” with “primarily”—differs significantly from the current draft. Asking whether a person believes that the primary use of an article is to commit offences seems to be the same as asking whether he believes that an article is likely to be used to commit offences. Also, the proposed formulation would not deal adequately with a case where the primary purpose could be said to be legitimate but the article in question was supplied by a person who believed that it would be likely to be used to commit offences. The noble Earl, Lord Erroll, might like to consider that nuance further. The burden on the prosecution of showing that the accused believed that the article was likely to be used in the commission of an offence under Sections 1 or 3 of the Act will not, as I said earlier, be an easy one to discharge.

It would not be sufficient for the producer of the article to show that it had been used for such a purpose on some occasions because that does not show a belief that the article in question will be so used. On the contrary, the producer will be taken to believe that the article would be used honestly, as it is in the majority of cases. The prosecution may need to prove that the supplier knew something about the person to whom he supplied the article on which to base a belief of dishonest use. Obviously, that will not be an easy task.

We recognise the concerns of legitimate product manufacturers, the IT security industry and the research community about the need for clarity on how

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these provisions will apply to them. We have carefully considered the standard to be applied and we are satisfied that we have struck the right balancebetween protecting those who develop or supply tools for legitimate use and criminalising those who deliberately or recklessly develop or supply them for criminal use. I hope that what I have said provides that clarity. I express my gratitude again to both noble Earls for providing the Government with the opportunity to clarify our intentions. I invite them to withdraw their separate but distinctive amendments.

The Earl of Northesk: I thank the Minister for that reply and I thank the noble Earl, Lord Erroll, and the noble Baroness, Lady Harris, for their contributions and their support for the amendments. Regrettably, I am none the wiser. The Minister has not clarified the issue for me one iota. My understanding is that at the heart of this lies the legal definition of “likely”. It is a sad fact that vast swathes of the IT sector remain, to this day, confused about how “likely” will be interpreted by the courts. They simply will not take the risk of falling foul of this provision. I do not mind whether the noble Lord wishes to dismiss that, but that happens to be true.

I have very serious difficulties about how the courts will interpret the Government’s intent vis- -vis “likely”. How will the courts measure it, and against which yardstick will they measure it? There is absolutely nothing in the Bill to suggest that they can so do. I will read what the Minister has said extremely carefully, but, on first hearing, it does not clarify matters at all. With certainty, I shall return to this matter on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Erroll had given notice of his intention to move Amendment No. 178ZA:

The noble Earl said: I have listened to the Minister with great interest. He has clarified for me a confusing point about the production and the supply of these tools. One is trying to criminalise people who advertise on the internet saying, “Great hacker tool available, derived from such and such, best thing ever, why don’t you buy it for X?”. I have no problem with criminalising the sale or the supply of a tool because one knows that that is likely to be used by hackers. Separating out the development and, therefore, the supply of legally developed tools to educational establishments or authorised computer users might well solve part of the problem.

The second point that occurred to me while listening to the noble Earl, Lord Northesk, is that we need a definition for “likely”. Perhaps we should put in an entire legal definition of what we think “likely” is likely to mean when it gets to the courts. That would be another way around the matter. With those caveats and knowing that we shall definitely returnto this subject on Report, I shall not move my amendment.

[Amendment No. 178ZA not moved.]



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Clause 41 agreed to.

Clause 42 [Transitional and saving provision]:

The Minister of State, Home Office (Baroness Scotland of Asthal) moved Amendments Nos. 178A to 178C:

On Question, amendments agreed to.

Clause 42, as amended, agreed to.

Baroness Anelay of St Johns moved Amendment No. 179:

(a) after paragraph (a) of subsection (5A) there is inserted- (b) after subsection (5B) there is inserted- “(6) This subsection applies where- (a) a person has been previously convicted of an offence contrary to section 1 of the Protection of Children Act 1978 or section 160 of the Criminal Justice Act 1988; (b) the apparatus or data storage device containingthe protected information contains an indecent photograph or pseudo-photograph of a child; (c) the apparatus or data storage device containing the protected information has come into the possession of any person together with other apparatus or a data storage device which contains an indecent photograph or pseudo-photograph of a child; or (d) the court is satisfied that the protected information is likely to contain an indecent photograph or pseudo-photograph of a child. (7) This subsection will not apply where the person to whom the notice is given can show that the protected information does not contain an indecent photograph or pseudo-photograph of a child. (8) “Indecent photograph or pseudo-photograph of a child” shall have the same meaning as in the Protection of Children Act 1978.”

The noble Baroness said: I shall speak also to Amendments Nos. 180 and 196, which also stand in my name. The two new clauses would strengthen the law dealing with sex offenders, especially those who offend against children. The issues covered by the amendments were also debated during the passageof the Sexual Offences Act 2003. At that time, the Government asked that they should have the opportunity to consider the proposals further. We are pleased that some progress has been made, but it has

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not been enough. It is in the vein of probing how much further we may be able to go and when that the amendments have been tabled.

In another place, the Government accepted another amendment that inserts a new clause giving the police extra powers to enter and examine the relevant offenders’ home address. The new clause, although rejected by the Government for this Bill, was, with the agreement of the whole of thisHouse, inserted in Committee on the ViolentCrime Reduction Bill in May. Unfortunately, the Government did not give such a positive and speedy response to the amendments before us today and I hope that we can now make more progress with them.

Amendment No. 196 simply amends the Long Title so that the matter of child pornography would come within the scope of the Bill. As, later, we shall come to government amendments that would amend the Long Title, I hope that amending the Long Title is no longer an anathema to the Government.

Amendment No. 179 deals with encrypted data. It is well known that paedophiles collect pornographic images of children that most certainly constitute child abuse. Some of the images are real; some are digitally manufactured. One must at all times remember that every photograph of a real event is a record of a real act of abusing a child. Many of the images are in the form of videos or DVDs or on computers. Increasingly, they are kept on remote storage. Some computers that the police collect have no hard drives at all. They are driven or initiated by a disk and the information is stored remotely. Increasingly, the information is hidden by encryption. We used to have simple encryption, but we have now moved to 128 bit and 256 bit encryption. I understand that the software is freely available on the internet and is relatively easy to use. Essentially, it is unbreakable.

I am advised that matters are likely to become worse from the point of view of breaking security systems when Vista, the replacement for the Windows operating system, is due out during the course of next year. Once that system is up and running, the security is such that when the computer is turned off, it automatically encrypts all the information on it so that when the police collect the computer and turn it on, they cannot break through the encryption. Some information can be destroyed, preventing access by the police.

Clearly, the police need access. They need to seek evidence against individuals and, because offenders sometimes work in groups, they need to find evidence against the wider group as well. It is vital for the police to be able to identify the children involved. That is crucial not only in detecting the abusers but making it possible to offer some hope that the children may be rehabilitated and suffer as little long-term damage as possible.

The new clause deals with encrypted data found on computers and storage in cases where the police believe that the encrypted data contains abusive images of children. It does not create any new offence or scheme, but amends the sentencing regime under Section 53 of the Regulation of Investigatory Powers Act 2000. Part 3 requires a person to comply with a

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notice issued by the police to hand over the encryption key for protected data. The penalty for a breach is two years. That seems low, given that the alternative penalty, if the information were turned over, would often be five years or more. Frequently, offenders also have to go on to the sex offenders list.

Accordingly, it is unlikely that a defender who has indecent and abusive photographs of children on his or her computer would comply with the notice. We need to step up the penalty to achieve that compliance, so I suggest that such offenders should be liable for up to 10 years’ imprisonment, which is the penalty for contravening Section 1 of the Protection of Children Act 1978. I have no firm view on that; the amendment was tabled to probe the Government’s intentions.

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The proposed new clause would simply raise the sentence if a court was satisfied that it was more than likely—we return to “likely”, to which the noble Earl, Lord Erroll, referred—that most of the encrypted data consisted of indecent photographs of children. We suggest the use of the civil burden of proof because the offence would be not the possession of photographs of children, which would be punished separately, but the failure to hand over the encryption key. The higher sentence would apply only when one of two thresholds was passed: the computer had non-encrypted indecent photos of a child or children on it; or the person had previously been convicted of an offence contrary to Section 1 of the Protection of Children Act 1978 or Section 160 of the Criminal Justice Act 1988.

Amendment No. 180 would insert a new clause relating to offences requiring notification. Sections 48 to 50 of the Sexual Offences Act 2003, which make provision for the offences of recruiting or controlling a child involved in pornography or prostitution, are not prescribed for the purposes of notification requirements under Part 2 of that Act. I confess that my noble friends and I, and my Front-Bench colleagues in another place, quite simply missed that point during the passage of the Act. Those sections are not being used by the police and prosecutors because they do not have the notification that applies to most of, if not all, the other provisions relating to the abuse of children.

I hope the Minister will agree that there is no valid reason why people convicted of such an offence should not be required to notify the police of their details, because they are directly involved in the abuse and exploitation of children and need monitoring and risk assessment. Time was somewhat limited when these matters were debated on Report in another place, but the Government made some encouraging noises, which were welcome, about consulting on them. I would be grateful if the Minister would say what the Government’s current thinking is on the proposals that I have outlined, whether any consultation has commenced on either or both of the proposals, what the time scale is, who is being consulted, and whether they see any particular difficulty with any part of the proposed new clauses,

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because we would certainly be happy to work with the Government to improve the drafting of them until they become acceptable, I hope, in the near future. I beg to move.

Lord Hylton: I welcome the intention behind the amendments because they would tighten up the law, which would benefit the protection of children not only in this country but overseas; for example, in the Philippines. It is quite certain that children have been abused and exploited for the purpose of making pornographic films, videos, disks and other computer material, and anything that can be done to reduce that will surely be to the good.

Lord Bassam of Brighton: It is the case that those developing this area of criminal law have had to work hard in the past decade to keep pace with developments in technology and our emerging and developing understanding of the activities of those who are involved in paedophile activity. I am very grateful to the noble Baroness for tabling the amendments, as they enable the Government to set out how we intend to approach these matters. I am also grateful to the noble Lord, Lord Hylton, for his intervention, because he touches on a very important point; this is a global phenomenon, and anything that we can do in this country to tackle these issues, which will have a beneficial effect elsewhere, should be done with enthusiasm and an international spirit.

Amendment No. 179 is designed to increase the maximum penalty for the offence, in Section 53 of the Regulation of Investigatory Powers Act 2000, of failing to comply with the requirement to disclose protected information or the key to it. We had long arguments at the time about those offences. The increase in the maximum penalty would apply in the circumstance set out in new subsection (6) of Section 53 of RIPA, including where the offender has a previous conviction for possession of an indecent image of a child.

The use of information technology by terrorists and criminals to facilitate and conceal evidence of their unlawful conduct in order to evade detectionor prosecution is increasing. Consequently, the Government have concluded that it is now timely to implement the provisions of Part 3 of the Regulation of Investigatory Powers Act 2000, including Section 53, which are not presently in force. The threat to public safety posed by terrorist use of encryption technologies was recognised by the House in Section 15 of the Terrorism Act 2006, which increased the maximum penalty for the Section 53 offence to five years in a national security case. On 7 June, the Government published for consultation a draft statutory code of practice for the investigation of protected electronic data and the exercise of powersin Part 3 of RIPA. This consultation also invites comments on proposals to amend Section 53 of the Act in line with this new clause.

The Government remain very sympathetic to what the noble Baroness seeks to achieve by way of her amendment. However, first, we want to allow further opportunity for public consideration and comment on the proposals, and to consider what legislative

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changes to bring before the House in the light of current consultation. I am sure that the noble Baroness will feel able to assist us in that by withdrawing her amendment.

I now turn to Amendment No. 180. Schedule 3 to the Sexual Offences Act 2003 lists the offences for which a conviction, finding or caution will, subject to certain sentencing thresholds being met, result in the offender being made subject to the notification requirements of Part 2 of the 2003 Act. These requirements are colloquially known as the sex offenders register. When Schedule 3 was drawn up, we decided that the offences under Sections 48 to 50 of the 2003 Act—“Causing or inciting child prostitution or pornography”, “Controlling a child prostitute or a child involved in pornography”, and “Arranging or facilitating child prostitution or pornography”—should not be included. That decision was taken because we believed that these offences, while undoubtedly abhorrent, were not strictly sexual offences, unlike, say, rape, but could be motivated by factors such as simple greed.

We did however include the offences in Schedule 5 to the 2003 Act. By doing so, we could ensure that if an offender demonstrates that they pose a risk of serious sexual harm, courts can make a sexual offences prevention order either when dealing with such an offence or on subsequent application from the police. Being made subject to such an order leads to the offender going on the sex offenders register as well as being subject to prohibitions imposed by the order. However, while it may be true that these offences need not necessarily be strictly sexual in their nature, their perpetrators demonstrate at the very least a callous disregard of the sexual well-being of children and may pose a threat, and so may require the monitoring that being made subject to the register will bring.

Officials already intend reviewing the content of Schedules 3 and 5, which will take place over the summer. I assure the noble Baroness that her suggestions, as set out in her amendment, will receive sympathetic consideration during that review, including her comments about using the civil measure of guilt. As part of our review, we will be more than happy to meet and discuss with the noble Baroness her concerns and to listen to her other ideas about these offences. Any changes to Schedules 3 and 5 will not require primary legislation. They can be made by affirmative order, which means that Parliament will have the opportunity to debate the proposal. I am sure that the noble Baroness will appreciate that, rather than making piecemeal changes, we take the view that we should await the results of the review, which we will conduct in an entirely open way with the organisations, charities, voluntary sector bodies and so on with which we usually consult in these matters. We hope to make all the necessary changes through an order which will be laid in the autumn.


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