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Lord Cameron of Lochbroom: Will the Minister look at this again? He quite rightly says that the clause is aimed at a person carrying out these acts for his personal sexual gratification. The point is that that may sometimes be accompanied by a gain. I am speaking off the top of my head, but perhaps a phrase such as, "whether for gain or not" could be included in relation to sexual gratification, rather than making gain an alternative. As an erstwhile prosecutor, I think it would cause considerable difficulties to add an element to sexual gratification as an alternative and not an addition, which is what the amendment may be striving to achieve. I make these points for the Minister to think about; perhaps he could look again at the clause.

Baroness Howe of Idlicote: As I read the amendment, I thought there was a distinct point to it. I may be quite wrong, and it may not be the point. What if a person shows a child a video, a film or something on the Internet not just for his own sexual gratification but to attract someone who has paid him money for it? I could be wrong and that may not be what is meant. However, I have in mind some of the horrors that have been going on in America via the Internet. There is grooming, not to mention the list of about 6,000 potential paedophiles resulting from a case that was exposed there. That certainly was for gain, as those people made millions. The whole area needs amending, in the Communications Bill as well as this one. This will be very important in the future.

Baroness Walmsley: Perhaps I could make one more point before the Minister replies. The Minister referred to a film aimed at children in which a couple of people might be kissing. Clause 80 gives a definition of what is sexual and says of various activities that,

"a reasonable person would consider that it may (at least) be sexual",

and that,

"a reasonable person would consider that it is sexual",

in this particular context. I am sure that that is what it means. Given that definition, the example that the Minister raised would not fall prey to the amendment. Besides which, surely the CPS would not bring a case against a film-maker in those circumstances. A little earlier, the Minister was praising the common sense and discretion of the CPS. Perhaps we could rely on that common sense and discretion in a situation such as this.

Baroness Noakes: I was going to make the same point about the definition of "sexual". If the Minister has that

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problem in relation to minor acts under this clause, the problem will exist in relation to virtually every other offence in the Bill. If we hit that problem here, perhaps we should look again at the definition of "sexual".

Lord Falconer of Thoroton: There is obviously great enthusiasm here, and I understand why. We need to work on defining what we are looking for. The intervention of the noble and learned Lord, Lord Cameron of Lochbroom, was helpful, as was that of the noble Baroness, Lady Thornton, in defining what that is. But if two hurdles have to be overcome, that will not ultimately help anybody. We must be quite careful about exactly the activities we want to catch. I would find it helpful to have a conversation with the noble Baronesses, Lady Thornton and Lady Blatch, to identify precisely what conduct we are trying to catch that is not covered by "sexual gratification". I cannot give any guarantees that it will produce anything, but it is well worth making the effort to find out whether there is something that has not been caught.

There is some help in relation to pornographic and unsolicited commercial e-mail which I do not think is the only thing that the noble Baronesses who have spoken are after. There is an issue that needs to be addressed. The Department of Trade and Industry is consulting on unsolicited commercial communications in Chapter 6 of its wider consultation on the EU directive on privacy and electronic communications. I believe that that is one of the bodies to examine the problem of pornographic and unsolicited commercial e-mail.

Amendment No. 56 is in the name of the noble Baroness, Lady Noakes, the noble Lord, Lord Astor of Hever, and, I think, the noble Baroness, Lady Thornton—no, she is denying it. This would remove the intentional element of the offence. It would mean that a person who obtained sexual gratification from accidentally causing a child to watch a sexual act would be captured by the offence. It is quite difficult to conceive of a situation in which someone could accidentally cause a child to watch a sexual act for the purpose of obtaining sexual gratification. If one carries out an act for a purpose, that must mean that one has acted with that intention—in other words, intentionally. The deliberate leaving around of pornographic material in the hope that a child will find it is plainly an intentional act.

Perhaps the thinking behind the amendment is that it is unnecessary to say that the causing must be carried out intentionally, given that it must be carried out for the purpose of obtaining sexual gratification. Removing "intentionally" on this basis would mean that the offence was no longer consistent with all the other child sex offences, all of which require the activity in question to have been carried out intentionally.

Amendment No. 57, which I suspect goes with Amendment No. 56, proposes a different amendment to the state of mind necessary to commit the offence. It would mean that a person would be guilty of this offence if he were reckless about letting a child witness a sexual act, even if it was not his intention that the child should witness the act. Is that desirable? For example,

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such a provision might cover parents who leave their bedroom door unlocked so that their child can seek comfort during the night. The child comes into the room quietly and unnoticed while they are having sexual intercourse. Any parents who, having noticed the presence of the child, continued their lovemaking, would fall within the meaning of the term "intentional" and would be covered by the offence, but we would not wish to catch those who are unintentionally observed.

A recklessness provision would also catch anyone who mistakenly, rather than intentionally, left videos or photographs in a place where a child could find them. It is not unreasonable to expect adults to take care to keep sexually explicit material out of the reach of children. However, I do not think it would be right to bring the full weight of the criminal law against someone in cases where a child finds and looks at such material.

Our offence requires defendants to take positive actions that cause a child to watch a sexual act. It should be possible to be found guilty of this offence only if it can be proved that it was their intention that a particular child or children should be subjected to such activity.

In a similar vein, Amendment No. 58 is intended to broaden the scope of this offence to cover those who intentionally allow (as opposed to cause) a child to watch a sexual act. Our purpose is to criminalise those who purposefully expose a child to pornographic or sexual images purely for their own sexual gratification. Do we want to criminalise, for example, parents who consider that it is acceptable for their 15 year-old child to watch an X-rated movie or to look at a pornographic magazine and knowingly allow him to do so? That is where some of the amendments we are discussing would lead.

The effect of Amendment No. 61 would be to import an element of recklessness about the age of the child into this offence. I can see no justification for treating the question of the defendant's knowledge or belief about the age of the child any differently in relation to this offence than it is treated in relation to all other offences in Part 1 of the Bill.

Where a defendant has intentionally caused a child to witness a sexual act and he is able to prove, on the balance of probabilities, that he reasonably believed the child to be 16 or over, he should be acquitted of this offence. In any event, if a defendant is reckless about the age of the child and it transpires that the child was under 16, he is extremely unlikely to be able to satisfy the jury that he reasonably believed the child to be at least 16.

The effect of Amendment No. 59 would be to bring visual images other than photographs and pseudo-photographs within the scope of this offence. That plainly requires consideration. I hope that I shall be able to help in that regard.

Amendment No. 62 would extend the scope of the offence to cover written material of an obscene nature shown either for gain or sexual gratification, intentionally or recklessly. I have already mentioned what seem to me to be the problems in relation to the concept of "for gain" although I have indicated that we need to consider that further. As regards the concept of "recklessness", I have

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indicated what I think the dangers are in that regard. Obviously, we cannot accept the amendment as it is drafted.

The amendment also introduces the idea of,

"text which a reasonable person would be likely to understand to be obscene within the meaning of the Obscene Publications Act 1959".

That would mean that the court would have to find that a "reasonable person" would be likely to understand that the material was liable to deprave and corrupt, which is likely to add complication and difficulty to making out the criminal offence. However, we need to consider the principle of whether intentionally showing text to a child for the purpose of gaining sexual gratification—which I suspect is broadly what the noble Baroness seeks to catch—should be covered in the same way as we propose showing photographs or pseudo-photographs should be. I do not believe that the noble Baroness is particularly wedded to her drafting. The drafting is not the problem; we need to look at that along the lines that I have indicated.

I hope that I have indicated that we can consider much of what has been said. I can give some assistance in relation to the material I referred to at the end of my speech. As regards the other matters, we need to look at them and try to define precisely what we are trying to cover. I hope that in the light of those remarks the noble Baroness will feel able to withdraw the amendment.

5.45 p.m.

Baroness Thornton: I thank all Members of the Committee who supported me so wonderfully. One innocently tables a measure that appears sensible. That just shows what happens when one "mixes it" with lawyers. I thank my noble friend the Minister for his comments. I shall certainly beat a path to his door to discuss certain issues. I am certainly not wedded to the words of my amendment but I am grateful for the discussion which has taken us a long way. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 56 to 59 not moved.]

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