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The noble and learned Lord said: My Lords, we agreed on Report to bring forward these amendments, which restrict the scope of Clauses 41 and 42 to cases referred to the Court of Appeal by the Criminal Cases Review Commission. The noble and learned Lord, Lord Lloyd of Berwick, had tabled his own amendments to this effect but, as I explained then, the Government consider that the wording here, while slightly longer, is necessary to ensure precision. I trust that it may be accepted that this is not wholly within the Hunt rule on amendments.

Amendment No. 11 inserts into the Criminal Appeal Act 1968 a new Section 16C. It will apply only in cases where the Court of Appeal is determining an appeal referred to it by the Criminal Cases Review Commission, and where the only ground for allowing the appeal is that there has been a development in the law since the date of conviction. In such cases, it would be open to the court to dismiss the appeal if it would have refused an extension of time within which to seek leave to appeal; if, hypothetically, the court had been considering an out-of-time application by the appellant rather than a reference by the Criminal Cases Review Commission. Amendment No. 12 makes the equivalent provision for Northern Ireland, and Amendment No. 54 makes the equivalent provision for the Armed

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Forces. Amendments Nos. 55 and 56 are transitional provisions. I hope that the noble and learned Lord, Lord Lloyd, will accept that the substance of his amendments is reflected in the Government’s amendments. Our joint objective is to secure that the Court of Appeal is no longer obliged automatically to quash convictions in the relevant cases. I beg to move.

4.45 pm

Lord Lloyd of Berwick: My Lords, one only has to compare the clause as it now appears in Amendment No.11 with the clause as it appears in the Bill to see what a very marked improvement the amendment has made to the existing Bill. I am very glad that that has happened and I extend my welcome to it. It achieves exactly what needed to be achieved, neither more nor less. I support the amendment.

Lord Thomas of Gresford: My Lords, we on these Benches congratulate the Government on another climbdown on the Bill. We are pleased to see that the amendment has been put through.

On Question, amendment agreed to.

Clause 42 [Power of Court of Appeal to disregard developments in the law: Northern Ireland]:

Lord Hunt of Kings Heath moved Amendment No. 12:

“Appeals following references by the CCRC(a) the only ground for allowing it would be that there has been a development in the law since the date of the conviction, verdict or finding that is the subject of the appeal, and(b) the condition in subsection (3) is met.(a) the reference had not been made, but(b) the appellant had made (and had been entitled to make) an application for an extension of time within which to seek leave to appeal on the ground of the development in the law,the Court would not think it appropriate to grant the application by exercising the power conferred by section 16(2).””

On Question, amendment agreed to.

Clause 62 [Possession of extreme pornographic images]:

Baroness Miller of Chilthorne Domer moved Amendment No. 13:

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“(b) is obscene as defined by section 1 of the Obscene Publications Act 1959 (c. 66) (test of obscenity).”

The noble Baroness said: My Lords, there are many things in these clauses about extreme pornography with which we on these Benches remain deeply unhappy. On Report, the Minister did not explain why he could not move at least a little nearer the Obscene Publications Act 1959. Linking these clauses to that Act would have made the measure more objective, and less subjective, and would have had the other strength of targeting the producers of such material rather than the end user. It would target those who are making vast amounts of money out it.

In Committee, the noble Baroness, Lady Kennedy of The Shaws, had a suggestion, but the Government did not take up, to make it illegal for credit card companies to allow the spend on extreme porn sites. I thought that was a constructive suggestion that the Government had not chosen to pursue.

The other reason to link these clauses to the Obscene Publications Act is that that is a tried and tested definition in court. It talks of material that tends to “deprave and corrupt” as opposed to “extreme”, which the Minister admitted at Report stage is a very subjective judgment. It is something that he does not like.

I appreciate that the Minister feels that “deprave and corrupt” is old-fashioned language and not suitable, but it has stood the test of time in court for printed material and it addresses what the Government say they are trying to do with these clauses. The Government want to stop people becoming depraved and corrupted and therefore more likely to commit criminal acts. I will come back to whether there is enough evidence of that—and I will contend that anyway. The legislation as drafted simply allows the word “extreme”. Although theBill defines that word, when a case comes to court it is going to give juries a great deal of difficulty when they start to look at it in any detail.

The legislation allows the police to pick up someone watching this material before they commit any crime, before they actually cause any harm to another person. The Government may be right that the person might have gone on to commit such a crime, but often they may be arresting somebody who has strange tastes, ones we might find repugnant, but who is never going to harm anyone else and is no threat to society. Their life is likely to be ruined by the subsequent court case, even if it fails or if the accused is successfully produces one of the defences. That is truly the domain of the thought police. These clauses are the state entering the bedrooms and minds of citizens before they commit any crime that involves harm to another human being.

I know that the Minister will again quote the evidence. However, the academic world is not of one voice on the effects of this material. A number of academic studies quoted by the Minister show that extreme pornography may affect violent criminals—people who had criminal intent in the first place. On the other hand, he could have chosen to quote from Professor Todd Kendall who presented his paper to Stanford Law School. It showed that as the United States brought in access to the internet at a different rate in

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the 50 states—not intentionally—a 10 per cent increase in internet access yielded a 7.3 per cent decrease in reported rapes. The purpose of quoting that is to show that different academic studies show different things.

I now turn to Amendment No. 15, which concerns the tariffs. Will the Minister explain why the tariffs are as they are for simply watching an act, when committing the act results in a lesser or equal tariff? Surely it is much worse to commit an act under the Sexual Offences Act than to watch it on the internet. I want also to ask him about the guidance that he will issue to the police. How on earth are the police going to enforce this law? Will it be by random raids on people’s bedroom, by reports from neighbours or by trawling through hacked internet access? Policing this area will be a nightmare when it comes to otherwise law-abiding citizens watching alone or with their partners things that we may find distasteful or even disgusting. This affects an awful lot of British citizens. I have no way of telling whether extreme or just ordinary pornography is involved, but internet service providers estimate that about £1 billion a year is spent on pornography. That is either 1 million people spending £100 or—my maths is failing me. Anyway, it is a lot of people.

There is another route that the Government could have chosen to take that might have been very constructive. It would have been to set up a government website that allowed the reporting on non-consensual abusive acts, slightly along the lines of Crimestoppers. That would have allowed users to report anything truly criminal or suspect and would have led to the arrest of genuine sexual offenders from whichever country they originated. That idea could be put into practice and would be very cost-effective.

We feel that the Government have gone down a number of wrong routes with this Bill, and that is we why we have tabled this amendment. I beg to move.

Lord McIntosh of Haringey: My Lords, I apologise to the noble Baroness, Lady Miller, for not putting my name to Amendments Nos. 13 and 15 in time. My opposition to these clauses is undiminished. I listened carefully to the reply that my noble friend Lord Hunt made in the debate on Report. He spoke with great passion and sincerity, and I admire him for that, but unfortunately the quality of his arguments did not match up to the passion and sincerity with which he made them.

This is fundamentally about an intrusion in the harmless private lives of ordinary citizens in this country. On Report, I spoke about the Video Recordings Act 1984. I did not repeat one of the juiciest pieces about it. Until that time, we had a British Board of Film Censors, which was not a censorship board. It classified films, and if it refused to classify them, they could still be shown with the permission of local authorities. The Video Recordings Act 1984 changed the board from being a classification board to being a censorship board because if a video recording was not approved by the board, it could not be shown at all. From being a classification board, it became a censorship board, but its name changed from being a censorship board to a classification board. George Orwell would have been proud.

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I am enthusiastic about Amendment No. 13 because it seeks to get round the horrible situation which the Government are putting us in by adding an extra gloss to the Obscene Publications Act 1959. I would support the noble Baroness, Lady Miller, if she chose to divide on that.

I am less enthusiastic about Amendment No. 15, not because it is not right in itself, but because I simply do not believe that any jury will convict a citizen of this country for possessing what it is not illegal to produce. The noble Baroness, Lady Miller, gave the reason of needing inspectors with the right of entry to people’s homes, sitting rooms, bedrooms, video machines and DVDs. Is that really what the Government are proposing? There is no other way of enforcing it. If they succeed in doing it, however they succeed in doing it, what jury is going to convict people for possessing what it is not illegal to produce? The Government, despite all the sincerity of the noble Lord, Lord Hunt, have failed to answer any of these arguments.

Baroness Howe of Idlicote: My Lords, I am very pleased indeed that these amendments have allowed one to have another look at this whole area, because it was a mistake not to have allowed us on Report to discuss a similar route to the one agreed for the clauses dealing with sex workers for the clauses in this Bill about extreme pornography. In other words, they should be taken out of the Bill. I hoped that your Lordships would have had an opportunity to debate both sides of the concern that lay behind those amendments.

The human rights aspect was rightly aired. However distasteful to many, including myself, if people choose to watch extreme or kinky pornography in the privacy of their own home, and that is not breaking the law, the state should not be involved. It was argued by the organisation backlash, among others, that this law as currently drafted is likely to criminalise hundreds of thousands of people who use violent pornographic images as part of consensual sexual relationships. It also argues that some of the RAE research was inaccurate and biased. The other, equally important, concern is whether extreme pornography could be harmful, in the sense of generally brutalising, to citizens. I am reminded of when I was asked to watch an experiment at the LSE with two groups of undergraduates. One group watched some rather violent material, and the other was shown, gradually, up to a point, fairly placid stuff. At that point, they were both shown some pretty violent stuff. The first lot, who had got used to seeing what they were shown—rather more violent stuff—did not react at all, while the other group was horrified. That is quite important.

Of far greater concern, as has been mentioned, is the possible effect on sick or vulnerable people who might fantasise about what they are viewing and go on to commit violent crime against members of the public. That was argued forcefully in the other place by Martin Salter MP, quoting the case of Jane Longhurst. In most cases, as we know, these offences are committed against women. Both areas of concern combine to make a strong case for a far more professional look at this whole subject, not least in view of the growing use

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of the internet, and other forms of IT equipment, to access this kind of extreme material, and the lack of any significant powers for Ofcom to intervene.

As one who, in the 1990s, when chair of the Broadcasting Standards Commission, had responsibility for monitoring the early days of pornography, I have absolutely no doubt of the huge growth in both the quantity and the extreme nature of today’s material. No doubt, if we had followed the Minister’s advice and gone to the police station to see the evidence that he had to endure, that would have graphically confirmed my view.

Despite the proposal that I had hoped to make earlier—that, like the clauses on prostitution, these extreme pornography clauses could be referred for further expert study and not form part of the Bill—I still urge the Minister and the Government to establish an expert commission or Select Committee to take evidence and examine this whole area in far greater detail. It is a growth area of citizen concern which will not go away.

5 pm

Lord Monson: My Lords, as I indicated on Report, I broadly support the Liberal Democrats and the noble Lord, Lord McIntosh, on this matter. However, one thing puzzles me about Amendment No. 15: it does not allow for a fine to be imposed on conviction or indictment, unlike the clause as it stands. The overcrowding in our prisons will not be ameliorated at any time in the foreseeable future. It seems to be a defect that there is no possibility of a fine in that case.

Lord Thomas of Gresford: My Lords, on Report, I asked the Minister the purpose of this new offence. Was it to discourage criminal sexual acts being filmed, or was it to discourage people from watching porn? The Minister’s answer was something of a surprise: he wished to criminalise the gratification of the individual in watching pornography in the privacy of his own home. That is one thing, but it seems completely illogical to make that a more serious offence than the act which—if it is criminal—the individual is watching. I ask the Minister to reflect on whether he can in any form of logic maintain his opposition to these amendments.

Lord Faulkner of Worcester: My Lords, I was not intending to speak but I want to add my support for what the noble Baronesses, Lady Miller and Lady Howe, and my noble friend Lord McIntosh have said in this short debate. From Committee stage onwards we have been consistent on this issue. I very much appreciated the support that the noble Baroness, Lady Miller, gave me in my efforts to remove the street offences clauses at an earlier stage, and I very much commended my noble friend Lord Hunt for agreeing to do that. It is a great pity that he has not taken these clauses out as well. With the greatest respect to him, he has not made the case that they are necessary, workable or desirable. As my noble friend Lord McIntosh said, he made a brilliant speech on Report, full of passion and full of commitment; but his main point and main argument in favour of these clauses was that it is necessary to satisfy the public demand, because the public do not like what they

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think is available. They do not know quite what is available but they do not like it and the law, therefore, must make it impossible for it to be accessed.

My worry is that if you adopt laws on that basis, you will finish up with something that is unworkable. As my noble friend Lord McIntosh said, it is almost impossible to imagine that a jury will convict someone on the basis of viewing an activity, the activity itself not being the subject of a criminal act. I think that the law will be brought into disrepute if the Government persist. I, too, support the noble Baroness, Lady Miller. I commend her courage and honesty and the way in which she has campaigned on this through three stages of the Bill. I hope she does not give up.

The Earl of Onslow: My Lords, first, I must apologise to your Lordships for arriving slightly late for this amendment. I, too, support it. I feel that the Government are doing their old-chum gesture politics. They are “sending a signal”. That is a very bad basis for passing laws. We know that this is not unique to this Government. I can almost guarantee that after the next general election, when I might be sitting on that side of the House and other Members might be sitting on this, I will make exactly the same criticism of an incoming Conservative Government. It is a habit which Governments find irresistible. But the logic of what the noble Lord, Lord McIntosh, and the noble Baroness, Lady Howe, said, and the expressed views of the Joint Committee on Human Rights, on which I have the honour to sit, support that position. Even with the concessions coming in the next clause, it is an awful pity that this amendment will not be agreed to.

Baroness Butler-Sloss: My Lords, for the reasons that have been given by a number of other noble Lords, I, too, urge the Government, even at this late stage, to rethink these clauses. The provision is potentially unworkable. In view of the advantages of the noble Baroness’s amendment, I very much support it.

Lord Hunt of Kings Heath: My Lords, I also am grateful to the noble Baroness, Lady Miller, for allowing us to come back and debate this important matter. The principle was decided on Report, and this debate has in a sense been a rerun of that debate on principle. That is fair enough. I fully understand the probing nature of the noble Baroness’s amendments.

I very much accept the point made by the noble Baroness, Lady Howe, and endorsed by my noble friend Lord Faulkner, that this is but one element of a number of matters in this area. The noble Baroness has eloquently argued for a Select Committee of this House to look at these issues in general. Although that is always a matter for the House itself, I am sure that the Government will always co-operate and be happy to give evidence to any such initiative that the House takes forward. She might then say, “Well, you ought to take this away until the investigation has been completed”. She will know that I am reluctant to do so. However, I take her point that some substantive issues need to be discussed, including those issues on prostitution.

The Earl of Onslow: My Lords, in the Minister’s comments one suddenly sees a chinkette of light. In those circumstances, will he ask, through the usual

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channels, for a Select Committee? He shakes his head in the wrong way. Perhaps I shall take rather less notice of his charm on this issue than I thought that I should.

Lord Hunt of Kings Heath: My Lords, the noble Earl is always tempting me down paths I ought not to go. It is not for the Government to suggest to Parliament what it ought to do in matters governing its own affairs. If I were to do that, I would be out of order. I recognise that the noble Baroness, Lady Howe, has expressed a legitimate concern that many issues around sexual behaviour need to be addressed. All I was saying is that this is entirely a matter for this House. However, there are ways in which we may debate these matters: in Thursday debates, in Questions for Short Debate, or, if the House authorities agree, by setting up a special Select Committee.

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