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I am with the noble Baroness, Lady Howarth, here: if a clear link is established between pornography as we would generally describe it and child sex abuse, that is something we should seriously consider, even if that puts restrictions on other individuals. That is an objective criterion. If there is a criterion of “the common good”, something about society on which we agree just for the good of society, that is also more objective. But to legislate on the basis that this is what most people do not like is a recipe for transient and bad law.

5.45 pm

Lord Hunt of Kings Heath: I accept that the expression is very vague, but there are three elements to the test that has to be passed. The government amendments I have brought today seek to clarify the position some more; it is not just a vague test consisting of what most people think, although I would certainly pray in aid what I think public opinion would be in this regard. The amendments are a genuine, relevant attempt to deal with the specific issues that were raised in the other place about whether the test was too vague and to give greater clarification.

Baroness Miller of Chilthorne Domer: The problem that noble Lords have wrestled with, as have I, of whether there is a link between the possession of the material and a crime then being committed—or being more likely to be committed—or whether it is just that there is distaste for this material is something that the Minister still has not really nailed. That is what I would like to understand.

Lord Hunt of Kings Heath: I have already prayed in aid the rapid assessment. I have also said that since most of this awful stuff is produced in other countries, it is difficult for the Government alone to deal with the producers. That is another reason why, in addition to the impact it might have on those who possess it, it makes good sense to deal with the whole issue through possession; in many cases it is not possible to deal with the actual producers.

Baroness Miller of Chilthorne Domer: It would be useful, certainly for me and perhaps for other noble Lords, when we meet the Minister between Committee and Report, to hear a little bit more about what other countries—such as other European countries, the United States and Australia—are doing about this. I do not expect him to address that now, but what laws have they brought in to deal with this problem?

Lord Hunt of Kings Heath: I am happy to do that. I reassure the noble Baroness that the Government seek to work very closely with other nations to deal with this problem, and I am happy to report to her in detail on where we have got to with that.

Lord Elystan-Morgan: I have no doubt that the Government are to be praised and applauded for their efforts regarding this. It is a real problem of considerable magnitude. However, I very much doubt, with the greatest respect, whether the test, in so far as

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it is going to turn on the question of what the public in general feel is abhorrent, can be sustained.

There is nothing inherently wrong in setting a benchmark in law that is based upon the attitude of an ordinary, decent person. In the definition of dishonesty, judges day in and day out will tell their juries that the test of dishonesty is the test of what ordinary, decent people regard as the line where something ceases to be honest. That is a test that works. The difficulty with abhorrence is that whereas most people would be able to agree absolutely where that line is in relation to honesty or dishonesty, people might have hundreds or thousands of different views about what exactly is abhorrent. To my mind the use of that word carries echoes of the Lady Chatterley trial, which must have been 50 years ago, and Mervyn Griffith-Jones, learned counsel for the Crown, exhorting the jury to consider whether that was the sort of disgraceful book they would allow their servants to read.

Baroness Kennedy of The Shaws: And their wives.

Lord Elystan-Morgan: Their wives and servants. I am not deriding the Government at all; they have a difficult situation here and they have grasped the nettle. It would probably be better to concentrate upon the causal link between the possession of such material and the dangers that they envisage.

Baroness Kennedy of The Shaws: Reference has been made to the fact that my own chambers do quite a deal of work in the pornographic field—I do not get very much of it myself, and I cannot express any regret about that. However, because John Mortimer’s practice passed to certain people in my chambers, a lot of work concerned with pornography comes to us. It is interesting that, precisely for the reasons that we have just heard expressed by the noble Lord on the Cross Benches, juries on the whole have great difficulty in dealing with what is likely to deprave and corrupt, and one sees shifts, depending on what is happening in society. Twenty years ago, there was a great deal more horror about pornography that was homosexual in nature. Nowadays, juries are much more accepting of that, but much less accepting of violence towards women. The way in which these shifts take place is very interesting.

I have always argued that extreme pornography of this kind has to be accessed on the internet using credit cards. Why have the Government not thought of it as a course to dealing with it? They could approach credit card companies and say, “It is your responsibility to put a block on these sites, and when someone seeks to use their credit card for this extreme pornography, they cannot do it”. Why are we not seeking to address it that way rather than introducing the problem of finding a criterion that does not fall foul of the problems raised in this debate? I would be interested to hear from the Minister whether efforts have been made to go down that route.

Lord Hunt of Kings Heath: I thank my noble friend for that. The Government are working, and will continue to work, with industry, be it the mobile

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device or internet industry, or the credit card companies. The advice that I have received is that we are in a much stronger position in discussing, for instance, with the credit card companies restricting payment methods if the material is illegal to possess.

On Question, amendment agreed to.

[Amendment No. 123 not moved.]

Lord Hunt of Kings Heath moved Amendments Nos. 123A to 123B:

On Question, amendments agreed to.

[Amendments Nos. 124 and 125 not moved.]

Lord Hunt of Kings Heath moved Amendment No. 125A:

On Question, amendment agreed to.

The Chairman of Committees (Lord Brabazon of Tara): If Amendment No. 125B is agreed to, I cannot call Amendments Nos. 126 to 130.

Lord Hunt of Kings Heath moved Amendment No. 125B:

(a) falls within subsection (6), and(b) is grossly offensive, disgusting or otherwise of an obscene character.(a) an act which threatens a person’s life,(b) an act which results, or is likely to result, in serious injury to a person’s anus, breast or genitals,(c) an act which involves sexual interference with a human corpse, or(d) a person performing an act of intercourse or oral sex with an animal (whether dead or alive),and a reasonable person looking at the image would think that any such person or animal was real.”

On Question, amendment agreed to.

[Amendments Nos. 126 to 130 not moved.]

Clause 113, as amended, agreed to.

Clause 114 [Exclusion of classified films etc.]:

[Amendment No. 131 not moved.]

Lord Hunt of Kings Heath moved Amendments Nos. 131A to 131B:

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On Question, amendments agreed to.

[Amendment No. 132 not moved.]

Clause 114, as amended, agreed to.

Clause 115 [Defence]:

[Amendments Nos. 133 and 134 not moved.]

Clause 115 agreed to.

Clauses 116 and 117 agreed to.

Schedule 23 agreed to.

Clause 118 [Indecent photographs of children]:

[Amendment No. 134ZA not moved.]

Clause 118 agreed to.

Lord Henley moved Amendment No. 134ZB:

“(aa) where subsection 5C applies, five years; and”.(a) the offender has been previously convicted of an offence relating to an indecent photograph of a child, or(b) where an indecent photograph of a child has been found in his possession, or(c) where the court is satisfied that it is more likely than not that the protected information may contain an indecent photograph of a child.

The noble Lord said: The amendment is designed to deal with a failure to comply with the notice to disclose and would introduce a new clause after Clause 118. It would raise the penalty for failing to provide the key to the police when requested. The drafting follows the logic used in terrorism offences. I have selected “five years” in proposed subsection (1), because it is the same period as applies in terrorism offences. It would also seem to be in line with the guideline produced by the Sentencing Guidelines Council.

The raised penalty would apply in one of three circumstances: first, where the offender had been previously convicted of an offence under Section 1 of the Protection of Children Act 1978, Section 160 of the Criminal Justice Act 1988 or Sections 48 to 50 of the Sexual Offences Act 2003. It would apply, secondly, where the offender’s computer or other media being examined at the same time contained an indecent image of a child and, thirdly, where the court was satisfied on the civil standard that the protected data were likely to include an indecent photograph of a child. This would cover situations where the police could prove that the offender was likely to be involved in child pornography; for example, through search engine terms, e-mails and intelligence.

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I understand that a Court of Appeal decision, R v Porter in 2006, deals with the meaning of “possession”. It states that where an image has been deleted and can be recovered only forensically, and not by the user, it cannot be said that a person is in possession of the image. To an extent, this is common sense, although it caused some problems for the Crown Prosecution Service. The solution is not to charge with possession, but to charge with making an indecent photograph of a child, as now happens. I have kept “possession” in proposed new subsection (5C)(b) of Section 53 of the Regulation of Investigatory Powers Act 2000 because it makes life easier. However, if the circumstances of Porter were repeated, the higher penalty would still apply since a court would conclude that, since the person concerned had accessed indecent images of children already, it would be likely that protected data would also include indecent images.

The third part of the amendment would alter Schedule 3 to the Sexual Offences Act 2003. It would mean that if someone were convicted for not disclosing the key, they would be subject to the notification requirements. I beg to move.

6 pm

Lord Bassam of Brighton: I understand the objective behind the proposed new clause in Amendment No. 134ZB, and there is a more than a modicum of sympathy for it on these Benches. It is designed to increase the maximum penalty for an offence under Section 53 of the Regulation of Investigatory Powers Act 2000—that is, failing to comply with a requirement to disclose protected information or the key to it. The increase in the maximum penalty would apply in the circumstances set out in a new subsection (5C) of Section 53 of RIPA, including when the offender has a previous conviction for possession of an indecent image of a child.

Use by criminals of information technology, such as encryption tools, to conceal evidence of their unlawful conduct to evade detection or prosecution did not materialise as rapidly as was expected back in 2000, when we looked at this issue before, but it is beginning to happen now. That is why the Government concluded that the provisions of Part 3 of RIPA, including Section 53, should be implemented. That happened on 1 October last year, following the affirmative resolution of both Houses approving a code of practice relating to the exercise of the powers and duties in Part 3. That code of practice was published in draft for consultation in 2006; the same consultation also invited comments on amendments to Section 53 along similar lines to this new clause. Only some respondents addressed that issue; most focused on the detail of the code of practice. There was both support for amending Section 53 and responses urging the Government to implement the provisions first and consider any evidence for amending them in the light of experience.

The Government remain very sympathetic to what this amendment seeks to achieve, but we want to assess how the provisions operate in practice. That process is taking place as the first disclosure notices are prepared and served, and the first offences for refusing to comply with a notice are being prosecuted.

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However, before any prosecution is secured for the existing penalties there will be complex issues to address in court around the presentation of evidence and the explanation of how encryption technologies work in practice.

The Government will consider amending RIPA very much along the lines of this proposed new clause if there is evidence that the two-year penalty is not effective in cases involving, or believed to involve, indecent images of children. We are very much where the noble Lord seeks to take us, but we ought to see what happens in practice so that we have a better feel and understanding for the effect of the original legislation before we proceed any further. We want to see how the law operates before taking that further step. If the noble Lord agrees to withdraw his amendment, we entirely agree to keep the matter under review, because there is not a great deal between us on the matter.

Lord Henley: I thank the Minister for that sympathetic reply. I also thank him on behalf of my honourable friend, Sir Paul Beresford, who raised this issue in another place. It was discussed there and then he took it up with the Minister’s colleague in the Home Office, Vernon Coaker. We shall want to look very carefully at what the Minister has said before considering whether to come back with this amendment. But it sounded pretty sympathetic to me, and in the light of what the Minister has said it is possible that not only will we not need to bring it back on Report—we might even have discussions about it beforehand. The Minister might want to include my honourable friend Sir Paul in those discussions between now and Report.

Lord Bassam of Brighton: Of course, we shall try to assist in the course of discussions. These issues can be properly discussed.

Lord Henley: Bearing that in mind, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 119 to 122 agreed to.

Schedule 24 agreed to.

Clause 123 [Amendment to offence of loitering etc. for purposes of prostitution]:

Baroness Miller of Chilthorne Domer moved Amendment No. 134A:

The noble Baroness said: I shall speak extremely briefly to this because I hope that we shall hear from the noble Lord, Lord Faulkner of Worcester, and the Government, both of whom have been working very hard on this. We had agreement all around the House about why we did not want these clauses on prostitution to be in the Bill and why we thought that a big rethink was desirable. I am glad that the Government have agreed to take this away and come back with it in a very different form. So that others who feel as strongly as I do may speak, I beg to move.

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