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My worry is that the wording of the Bill is still much too vague and could cover all sorts of light, consensual and safe imagery which many people enjoy and practise and which at present is perfectly legal but which as a consequence of these clauses will certainly become illegal. In Committee, I finished by asking my noble friend a question. I did not get an answer on that occasion and I therefore put the same question to him now. As a new offence is being created by these clauses, what will be the position of people who have already downloaded material on to their computers that until now has not been illegal but henceforth will be? Will the possession of that be regarded as a criminal offence and, if it is, what advice are the Government offering to help people to get rid

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of it? This is an important issue. This House cannot pass legislation that inadvertently turns people into criminals, particularly when the activity in which they are engaging is not doing anybody outside their own homes any harm.

Lord Monson: My Lords, I had not originally intended to speak on this group of amendments but, as a libertarian, I feel that I must support them, as I support Amendment No. 87A in the name of the noble Lord, Lord Waddington, and others. A few years ago there was a very famous Italian film. I am afraid that I cannot remember the title. Some of your Lordships may remember it. It won awards all over the world and was highly acclaimed. It was set in Italy in a peasant community about 50 years ago and one of the scenes showed an adolescent farm lad relieving his frustrations with a donkey, standing on a box in the middle of the field in order to do so. I saw this in a large London cinema that was absolutely packed because the film was so highly acclaimed. The audience tittered, as you might expect, but nobody was at all shocked or offended. The Government will argue that the film was not produced solely or principally for the purpose of sexual arousal and, indeed, that is the case. But suppose that somebody was to download that scene from the film on to a DVD and play it over and over again for their rather peculiar sexual tastes. That would be odd, no doubt, but should they really go to prison for such a thing?

Lord Cobbold: My Lords, I totally support the point of view so eloquently expressed by the noble Lord, Lord McIntosh. This House in particular should work hard to preserve the human right to do what one wishes in one’s own home that is not a threat to anyone else in the outside environment. I support this amendment and others coming.

Baroness Howe of Idlicote: My Lords, I, too, support these amendments. Almost inevitably we are going to have to go through the process of deciding whether what is described—what is attempted to be defined—is in fact effective at all. This is a preliminary attempt to do that. The far more important issue will be what we do about all these clauses. In my view, we need a far harder and deeper look at these issues than we are able to give them in this Bill. That is for the later part of the debate. In the mean time, we shall all be interested to hear what is said. I share everybody’s view that, if what is going on in one’s own bedroom is legal, so long as it is not frightening the horses—or whatever phrase you want to use—it may even be doing some good, but we can discuss that later.

Baroness Butler-Sloss: My Lords, I do not like pornography. I was never allowed to read Juvenal’s satires as a child. Child pornography is abhorrent and is rightly censured throughout the world. But I cannot see the point of Clause 63 and subsequent clauses and I do not understand why the House is being troubled with them.

Lord Thomas of Gresford: My Lords, judgment tends to go out of the window when we deal with matters in this area. I recall many years ago prosecuting a lady in Caernarfon Crown Court for the murder of

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her husband. The judge was a recently appointed High Court judge, a commercial lawyer by training, and the lady received probation when she pleaded guilty to manslaughter on the grounds of provocation. The next case involved attempted bestiality, so I know a little bit about it in court. That involved two Welshmen and sheep. However, the Welshmen were drunk at the time and the sheep were not violated. That is why it was charged as attempt. The judge who had given the lady probation for killing her husband proceeded to sentence these two to 12 months’ imprisonment immediately. They went to the Court of Appeal. They were given immediate bail and eventually the case was disposed of by the appeal court on the basis that it was stupid to have brought the case in the first place.

What is this provision in the Bill about? Is it an attempt to punish people for having extreme pornography in their possession or is it an attempt to discourage the commission of acts that we might disapprove of and are contained within the extreme pornography? If you cannot sell a picture or a film or a video, presumably the thinking is that there is no point in such acts taking place in the first place. One has this dilemma: if those acts are not criminal in themselves—a matter to which my noble friend Lady Miller and other noble Lords referred—punishing a person for having pictures of them seems rather silly.

That is what these amendments are about. That is why we on these Benches seek to put into the clause a condition that the act that is shown is criminal. If it is not criminal—if it is consensual—where is the harm? One has to be clear about what one is seeking to punish. What is the motivation? Is it distaste for people watching pornographic films or is it an attempt to discourage illegal conduct? We would go along with an attempt to discourage illegal conduct but not with an attempt to discourage consensual sex that takes place between two people in whatever form it may be. I share the distaste for pornography expressed by many noble Lords. As a classical scholar, I fully understood the depths of obscenity to which the noble Earl descended. I do not see that that is any reason for maintaining this clause in its current state. I respectfully urge on your Lordships that the amendment be accepted.

10 pm

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Hunt of Kings Heath): My Lords, this has been a very interesting debate. I think that the noble Baroness, Lady Miller, said in her introductory remarks that she accepts some of the spirit behind the Government’s legislative proposals, but clearly there is concern about the way in which they have been drafted. I very much understand the point made by my noble friend Lord McIntosh, to whom it is a great pleasure to respond. He spoke of being aware of legislation that seeks to intrude too much into the individual lives of people where, as he said, harm is not caused to others. I very much understand the concerns expressed by noble Lords. The noble Lord, Lord Henley, said that it is all right unless it frightens the horses. I do not know about the horses, but the material that I saw at Charing Cross police station certainly frightened me.

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While I accept all the concerns expressed by noble Lords tonight, I would also put the other point of view, which is that there is large and genuine public concern about extreme pornographic material, particularly since the growth of the internet, which has allowed existing controls on publication distribution under the Obscene Publications Act to be circumvented. There is also concern about the adverse influence that that material might have on those watching it. It is not simply material that potentially causes arousal. The tests that have to be applied are, I suggest, high tests. There are three elements that have to be met for someone to be found guilty of the new offence. First, material has to be pornographic; then, it has to be concerned with extreme acts, which are described as threatening a person’s life or as resulting or being likely to result in,

“serious injury to a person’s anus, breast or genitals”.

It also has to be,

“an act which involves sexual interference with a human corpse”,

or an act concerning,

“a person performing an act of intercourse or oral sex with an animal”.

Those acts must be “explicit and realistic”; persons and animals depicted must be such that “a reasonable person” would think them real. The third element of the test is that it must be,

“offensive, disgusting or otherwise of an obscene character”.

That is why many of the examples raised in our debates about works of art simply would not meet the tests described in the Bill.

Baroness Falkner of Margravine: My Lords, the Minister said that, when he went down to the Charing Cross station, some of the material that he saw certainly succeeded in frightening him. Would he go beyond that and say that it affected him in a manner where he felt that he might commit violence following on from viewing those acts? If I understand the Government’s rapid evidence assessment—it was, as we know from the Committee stage, a highly contested exercise—there was conflicting and contested evidence as to whether simply viewing some of these acts would lead anyone to go out and violently commit those acts themselves against people.

Secondly, the Minister comes to the tests. He uses the words “graphic” and “realistic”. Does he accept that much of the material is produced by consenting adults—much of it may well have consensual acts in its production—and may comprise a great deal of acting? Would he not agree that in acting one may project an image that is threatening or violent, or whatever, in order to be fantastical, and that that is perfectly fine in areas of art? It is rather odd that he uses such tests in this area and says that these tests therefore have a high threshold. Drama is, indeed, about simulating death and many other things. Might the Minister be able to explain that?

Lord Hunt of Kings Heath: My Lords, I was trying to explain that there are three elements to the offence. In our two debates, noble Lords have quoted or

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referred to certain works of art and suggested that they would be caught; I suggest that none of the examples quoted would be, because those three elements of the test would not have been met.

The noble Baroness asked whether, having viewed these images at Charing Cross police station a couple of weeks ago, I then felt violent or that I would indulge in some offence. I actually felt very sick, because they were pretty disgusting images, and I frankly find it horrific that they are available and that people can see them. I am sorry, but I do not take this very liberal approach of “If it does no harm to the people taking part, why should we worry about it?” I do worry about it, and about the access that people have to that kind of disgusting material. I am afraid that is my position.

The Earl of Onslow: My Lords, were the acts that the Minister saw in those videos in themselves illegal? That question has been asked frequently in this debate. Were the people doing these things—and I concede that they were obviously disgusting—doing disgusting legal things or disgusting illegal things?

Lord Hunt of Kings Heath: My Lords, I think that the answer is that some would be covered by offences in this country and some would not, but they were all disgusting. I suspect that we will, in the end, have to come to a value judgment on this matter. Frankly, I want to discuss why the Government would have difficulty with the amendments, and the House will then no doubt want to take a decision on that view—either today or at another stage.

Clearly, the effect of the amendments that the noble Baroness, Lady Miller, has put forward is to add an additional element to the offence; namely, that the image concerned depicts an actual sexual offence. In order to come within the terms of the offence, an image would have to depict a specified extreme act in an explicit and realistic way. As a consequence, only graphic and convincing scenes would be caught. To go further than that and to require that the image is a record of a sexual offence being carried out would make the clauses more or less inoperable for two reasons. First, the issue with most extreme pornography is not that a sexual or any other offence may or may not have been committed. As I said, much of the material that I saw, which has been found by the Metropolitan Police, might be prosecuted under the Obscene Publications Act, but would not satisfy a test that a sexual offence had been committed. The proposed amendment would render the offence inapplicable in respect of such material. I do not run away from this because the point was made by the noble Lord, Lord Thomas of Gresford, in his intervention. We are targeting that material not on account of offences which may or may not have been committed in the production of the material, but because the material itself, which depicts extreme violence and often appears to be non-consensual, is to be deplored.

Secondly, the other problem is that if there were a suspicion that a sexual offence had taken place, that would be pursued by applying the existing criminal law here. However, it is far more likely to have been

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produced in other countries and part of the problem that we face is mainly because of the internet. Often it applies to a different jurisdiction. To make a prosecution for possession of the image contingent on the prosecution first, determining from that image whether or not a sexual offence had taken place, and secondly, obtaining the necessary evidence and witnesses to prove the elements of that offence beyond a reasonable doubt, would be to make such a prosecution all but impossible. As I said, most of the extreme pornography is produced outside our own jurisdiction.

The noble Baroness has tabled amendments in the second group that would remove the offence altogether. The advice that I have received is that the amendments in this group would create almost the same impact. Amendment No. 86PA would create a new defence applicable where the defendant reasonably believed that no one portrayed in the image concerned was coerced. I am aware that the noble Lord has concerns about individuals who keep a record of themselves freely and willingly participating in bondage, domination, submission and sado-masochistic practices in which no unlawful harm occurs. I recognise that it would be anomalous for a person to be committing an offence by possessing an image of an act which he undertook perfectly lawfully. We intend to introduce at Third Reading a defence which addresses precisely that situation.

Noble Lords will have to apply a value judgment to this issue. I take them back to the elements of the offence. This is not intended to catch the kind of art to which noble Lords have referred. The three elements of the test ensure that it is only this extremely nasty pornography that in no circumstances could be counted as art, which will be covered. As a society we have a duty to protect people. It is appalling that this material is available and we have to do something about it.

10.15 pm

Baroness Miller of Chilthorne Domer: My Lords, I thank those who have spoken, particularly the noble Lord, Lord McIntosh, who set a tone of bravery for this debate, which is to be applauded. I am surprised that the Minister did not make anything of the Government’s attempt, with its rapid evidence assessment, to link this violent pornography, as he did in Committee, with the fact that people were then more likely to commit criminal acts. Pushing this was one of the Government’s weakest suits, so perhaps it is not altogether surprising that he did not refer to it this time. In the debate we have just had, the issue of whether we are talking about violence or sexual arousal is still confused. The right reverend Prelate the Bishop of Chester was useful in Committee when he applauded the Government’s attempt to get to grips with this issue, but shared a feeling with the rest of us that things are not right. I cannot find his exact quote at the moment.

My brief experience in your Lordships’ House tells me that this number of amendments linked together usually means that the legislation is in difficulty. That is still where we are. The Government have two things going on here. One is that they have a rapid evidence assessment that they used originally, in Committee, to back up their argument that people must be prosecuted

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and receive heavy prison sentences—of five years—for even viewing this sort of material, because by viewing it they were far more likely to commit violent offences. I do not want to stand here as an apologist for people who commit those sorts of offences against women. I feel very strongly that we need to stamp down on that sort of violence, but it is the violence that should be addressed, not the sorts of issues that the Minister has just been talking about. We are talking about somebody viewing something in the privacy of their own bedroom, even if those images are violent. I agree with the Minister that society has a problem, but how often has he watched television after 11 pm? All the free-to-view channels are absolutely stuffed with sex and violence that anybody can watch. While it may not be as extreme—

Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Baroness. That is the point that she was just coming to. We are talking here about extreme pornography. I extend a warm welcome to noble Lords to view this material and see what we are talking about. It is important that we understand that.

Baroness Miller of Chilthorne Domer: My Lords, if we followed the Minister’s invitation we would have to experience every single thing that we legislate about in this House. That is not a principle that we have ever tried to follow, although maybe we should.

Noble Lords: That is reasonable.

Baroness Miller of Chilthorne Domer: My Lords, the noble Baroness says that it is reasonable but the noble Lord, Lord Faulkner, who agreed with my amendments, went to Charing Cross to view it and still comes to the same view. If that is the feeling of the House, perhaps we should all see the material before Third Reading, but I do not think that we will change our view. The Government’s contention is that by viewing it people are more likely to commit violent offences. Therefore, they justify walking into people’s bedrooms and turning them into criminals simply for viewing something.

Lord Hunt of Kings Heath: My Lords—

Baroness Miller of Chilthorne Domer: My Lords, can I finish my point? I am sorry to provoke the Minister so much, but that is dangerous ground, and the Minister is in danger of leading his Government into becoming the thought police.

There is no direct connection with committing a crime. If the Minister was able to concede that we should tie it in to the Sexual Offences Act, which he is resisting, or the Obscene Publications Act, which he is resisting, I would feel far more sympathetic, but he is resisting all those connections. That is a great pity.

I will confine my final comments on the rapid evidence assessment to when we come to the clause stand part debate, and I will want to test the opinion of the House then. The Minister has not really answered

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any of the issues that have been worrying your Lordships this evening. In light of the fact that the Minister has made absolutely no concessions at all to the next group of amendments, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 86K to 86M not moved.]

Baroness Miller of Chilthorne Domer moved Amendment No. 86N:

Clause 63, leave out Clause 63

The noble Baroness said: My Lords, I shall not at this stage rehearse any of my earlier comments. However, as the Minister has not accepted any of my amendments in the last group, which would have substantially improved the Bill, or even conceded that the Government would come back with anything beyond the one issue he mentioned, I have no option but to move this amendment.

One substantial difficulty that I have had with the rapid evidence assessment that the Minister sent me between Committee and Report is that I discovered in reading it that an awful lot of the assessed evidence was produced before the internet was even widely available. Worse, however, is the fact that one of the assessors was one of those who wrote some of the research paper. That is particularly reprehensible. I have had communications with 40 academics, apart from the interest groups who obviously have an interest, who are deeply worried by the Governments’ position. Therefore, in light of the informed comments of your Lordships on the previous group of amendments and the failure of the Government to move anywhere on this, I beg to move.

Lord Hunt of Kings Heath: My Lords, I am not sure whether the House wishes me to go over the ground again, or whether the noble Baroness wishes to test the opinion of the House. All I would say on the REA is that the noble Baroness will know that we think that its conclusion supports the existence of some harmful effects of extreme pornography on some of those who access it.

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