INDECENT PHOTOGRAPHS AND FILMS OF CHILDREN

HC Deb 14 July 1978 vol 953 cc1921-60

Lords amendment: No. 1, in page 1, line 5, leave out clause 1 and insert new clause A (Indecent photographs of children):—

"A.—(1) It is an offence for a person—

1. (a) to take, or permit to be taken, any indecent photograph of a child (meaning in this Act a person under the age of 16); or
2. (b) to distribute or show such indecent photographs; or
3. (c) to have in his possession such indecent photographs, with a view to their being distributed or shown by himself or others; or
4. (d) to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs, or intends to do so.

(2) For purposes of this Act, a person is to be regarded as distributing an indecent photograph if he parts with possession of it to, or exposes or offers it for acquisition by, another person.

(3) Proceedings for an offence under this Act shall not be instituted except by or with the consent of the Director of Public Prosecutions.

(4) Where a person is charged with an offence under subsection (1)(b) or (c), it shall be a defence for him to prove—

1. (a) that he had a legitimate reason for distributing or showing the photographs or (as the case may be) having them in his possession; or
2. (b) that he had not himself seen the photographs and did not know, nor had any cause to suspect, them to be indecent.

(5) References in the Children and Young Persons Act 1933 (except in sections 15 and 99) to the offences mentioned in Schedule 1 to that Act shall include an offence under subsection (1)(a) above.

(6) Offences under this Act shall be included—

1. (a) in the list of extradition crimes contained in Schedule 1 to the Extradition Act 1870; and
2. (b) among the descriptions of offences set out in Schedule 1 to the Fugitive Offenders Act 1967;

and sections 17 and 22 of the 1870 Act and sections 16 and 17 of the 1967 Act (application to Channel Islands, Isle of Man and United Kingdom dependencies) extended to this subsection.

(7) In paragraph 1 of the Schedule to the Visiting Forces Act 1952 (offences against the person in the case of which a member of a visiting force is in certain circumstances not liable to be tried by a United Kingdom court), after sub-paragraph (b)(viii) (inserted by the Sexual Offences Act 1956) there shall be added— (ix) section 1(1)(a) of the protection of Children Act 1978".

Read a second time.

11.9 a.m.

Mr. Speaker

I call Sir Bernard Braine to move his amendment to Lords amendment no. 1.

Mr. Cyril Townsend (Bexleyheath)

On a point of order, Mr. Speaker. Am I not allowed to introduce the Lords' amendment?

Mr. Speaker

The two will be discussed together. We shall have the pleasure of hearing the hon. Member for Bexleyheath (Mr. Townsend). We know that he introduced the Bill. But the hon. Member for Essex, South-East (Sir B. Braine) has an amendment down to the Lords amendment. There is no need for the hon. Member for Bexleyheath to introduce the Lords amendment—it is there.

Sir Bernard Braine (Essex, South-East)

I beg to move, as an amendment to the Lords amendment, in subsection (1), after paragraph (c), insert— '(cc) to publish indecent printed matter in connection with an indecent photograph of a child or a copy thereof; or.'. My amendment has three purposes. The first is to expose the weakness of the Bill, the second is to extend the area of protection of children, and the third is to probe the Government's intentions should the Bill go through in its present form.

In my view, the Bill was weak when it left the House of Commons. It has been improved somewhat in the other place, but we shall be under a grave illusion if we think that it will do very much to combat the appalling threat of child pornography to increasing numbers of our children.

It is essential at the outset to make one point clear. The public were led to believe, earlier this year, largely by the media, that this Bill would put down child pornography. As the Second Reading approached every hon. Member was inundated with letters from constituents, anxious parents, teachers, churchmen, social workers and organisations concerned with the moral welfare of children urging us to support them so that a vile and filthy trade which involves the sexual exploitation and corruption of children could be crushed.

Unhappily, this Bill in its present form, and this is the reason for my amendment, will do no such thing. Clause 1 as amended by their Lordships is the heart of the Bill because it makes it an offence to take or permit to take an indecent photograph of a child, to distribute such photographs, or to have them in one's possession. It will do something for the relatively small number of children actually involved in the taking of such photographs. That is a step forward, as I will concede. That is a reason why I hope that the Bill will make progress today. But, inexplicably, the Bill goes no further. It is blind to the reason why such photographs are taken in the first place and the dangers involved to a far larger number of children. Indeed, every child in the land is possibly at risk.

People who have studied the problem in the United States and this country, too, tell us that in the United States the problem has clearly reached appalling and frightening levels. They also tell us that the captions accompanying such photographs and the textual material which they illustrate are generally more explicit, more degrading and more corrupting than the photographs themselves. I have seen such material, and I presume that the Minister of State has, too. That material can be bought openly in London and in every other big city in the country.

I have no doubt that some clever lawyer would argue before a court that photographs of nude children are not indecent. One can almost hear some eminent QC chiding the prosecution "Go to any public museum and you will see this sort of thing in three-dimensional form". But no lawyer could argue so convincingly when the photographs are used in conjunction with a text that is deliberately designed not only to encourage perverted adults to seduce and corrupt children but to encourage children who have been corrupted to seduce others, irrespective of the cost in human misery. This widens the circle of people involved and increases the sales and profits of the pornographers.

In short—this is the point that I wish to drive home—the number of children at risk from this vile trade is infinitely greater than the number of children who are photographed.

It may be argued that the text accompanying such photographs can be caught under the Obscene Publications Act 1959, which deals with the printed word, but there is no certainty of this. Such material can still be obtained and, in any event, the law on obscenity is currently in hopeless confusion. Moreover, it is likely to remain so for some time—perhaps for some years, since the Government have so far preferred to leave reform to the Williams committee. In the meantime, however, we can be certain that children who are involved as a result of the publication of this material or who become the victims of assault by perverted adults whose fantasies are strengthened by the reading of such material will be damaged emotionally and spiritually, perhaps for life. The link between child pornography and child prostitution is immediate and obvious, and every police officer and social worker in the land knows that to be the case.

Indeed, the facts stare us in the face. There are horrific but carefully documented accounts of the vast army of children available for hire in the United States where, almost by the law of nature, these dreadful things happen a little earlier than they do elsewhere, but we can rest assured that, unless we are very careful, they will spread to the rest of the world in due course.

On Monday, in the popular BBC "Woman's House" programme listeners were given details of the multi-million dollar industry linking child pornography and child prostitution in the United States. The New York police were quoted as saying that this evil traffic is netting $1½ billion a year, drawing in 10,000 people, mostly under the age of 21, involving more young boys than young girls. I hope that the hon. Member for Bethnal Green and Bow (Mr. Mikardo) will not seek to provoke me from a sedentary position. I am being as brief as I can. The hon. Member must know from experience the intense anger aroused by a previous intervention of his during proceedings on this Bill.

British listeners heard the programme and can form their own judgment. A New York police officer said: We have on our files literally hundreds and hundreds of instances of kids who have now been abused, and tortured and beaten and raped by the customers or by their pimps. And those few kids that come to New York to live off prostitution very quickly find out that it's not all money and glamour but it is frequently degradation, and frequently death. A lot of kids get killed; three of the girls who came to us in the past year have been murdered. A Franciscan priest who runs a rescue service for children caught in this sink of iniquity said in the same programme: It's absolutely insane that the citizens, for example, of this country"— that is, the United States— or even of your own country, can become exercised and involved with questions of pollution and Let Us Save the Whale campaigns and ignore this insane child abuse. Before this Bill received its Second Reading, many of us studied the evidence given to a House of Representatives committee last year by a distinguished psychiatrist and lawyer in the United States, Dr. Julianne Denser-Gerber, in which she described the sexual exploitation of American children on a massive scale. She quoted 264 magazines produced each month that used male children. She said in her evidence: The people who support and buy this kind of material are strengthening their paedophiliac fantasies. Now, when fantasies are stimulated people go home and act out. For example, there is no doubt that incest is on the rise… so we must be concerned not only with the kind of visual material and the children who are being exploited, but with the content of the magazine and crimes against children that it incites. Dr. Denser-Gerber went on to give examples of the way in which such magazines actually give instructions as to how to abuse sexually pre-pubescent girls and how to pick up children and molest them and to do this, if possible, without coming up against the law.

I do not mean to be unkind, because I know that the Minister of State cares deeply about these matters. However, the defensive attitude that Home Office Ministers took towards the Bill from the outset seemed to suggest that, in their view, the problem did not exist in this country. I address myself particularly to the Minister of State and I must tell him that, unhappily, the problem does exist in this country though, thank God, not on the same scale as in the United States—yet.

Hon. Members need not look very far for examples. The police forces in every major city in this country are worried. On Tuesday this week a case was reported in the Daily Express of a 44-year-old man, a member of the Paedophile Information Exchange, which advocates sexual relations with children above the age of 4, who graduated from reading hard-core child pornography imported from Denmark to sexual intercourse with two sisters aged 10 and 6. It was reported that, after watching blue films, the man paid £80 for a 40-minute sex session with the two children and for coloured photographs of what went on between them. He was given a 12-month gaol sentence, suspended for two years. I could comment on that sentence, but I forbear to express an opinion.

The point of the story is not just that this sick, perverted creature's fantasies were fed by pornographic pictures, but that this led directly to the molesting of young children and that the organisation existed to make them available to him.

My hon. Friend the Member for Bexleyheath (Mr. Townsend), who has laboured long and hard in this matter—the whole country is indebted to him—wanted a tougher Bill in the first place, but he was given to understand that the Home Office was not prepared to support the inclusion of textual material. I understand his dilemma. Here is a pressing problem which cries to heaven for legislation. On Second Reading, the whole House was united in demanding that something should be done, but my hon. Friend was in grave doubt whether he would get the Bill through without the Government giving facilities for it. He therefore settled for half a loaf instead of insisting on the whole and running the risk of getting nothing. But that does not mean that the rest of us must be silent.

We are entitled to know why the Government have been opposed to the inclusion of textual material in the Bill. What are they afraid of? Whom are they afraid of? Do they care more about being accused by their trendy friends of seeking to censor than about the immediate welfare of the nation's children? We want answers to those questions. Perhaps I am being unfair, yet what I have said is not unfair on the evidence of the Government's attitude to the Bill.

The Government view appears to be that they should wait on the deliberations and recommendations of the Williams committee. How long will that take? My action today will depend on the answer to that question.

There can be little doubt that if the Bill is not amended in the way I suggest we can expect an increase in the amount and the depravity of child pornography. The publishers are waiting to see what the Government have to say, since they know that if textual material is not included now they will have a pretty free run from today's debate until the Williams committee reports and legislation follows—perhaps in several years' time.

A senior police officer from a northern city force told me yesterday: There are huge financial killings to be made between the passage of this Bill and the Williams report. If indecent photographs are inhibited by law"— which is what the Bill seek to do— the pornographers will produce innocuous photographs with even more depraved text. They are laughing up their sleeves. I have had contacts with senior police officers for a number of years and have declared my interest before. The effect of this is that I am able to get a pretty quick police reaction to various problems. The view expressed to me yesterday by that northern police officer has been confirmed since by police officers in other forces, particularly here in the capital city.

Pornography is an international crime racket that can be compared, if not balanced, with the drug traffic. Now that adults are getting satiated with adult pornography, the trade is moving to child pornography. The recent enactment of very strong legislation in the United States, where the authorities have at last awakened to the gravity of the problem, means inevitably that the pornographers will turn their attack to this country. It is a billion dollar industry and there is a lot of money at stake. They will turn their attention to us because, due to our flabbiness and weakness, our defences are down. I suggest that the pornographers are holding back only because of the Bill.

It is no good the Government's hiding behind the present obscenity laws. Much of the printed material that I am talking about is no worse than some of the obscene material that has effectively been made legal by case law, due to the failure of the Government and of Parliament to take effective action.

My action today, therefore, will be governed very much by the Government's response to what is said in the debate. When will the Williams committee report? If I am correct in assuming that it will not be for a considerable time yet, so that a thorough job can be done in considering all aspects of the obscenity laws, can the committee be asked to treat child pornography as a special priority and to make an interim report so that Parliament may, if it wishes, take appropriate action?

The Williams committee is headed by a distinguished man and I am sure that all the members are most capable and responsible people, but of the 13 members, only three are women. Can the number of women on the committee be increased? Women do not need lectures on this subject. They know instinctively what should be done. The whole being of a woman is geared to the love and care of children. What was the Home Secretary thinking of when he appointed this unbalanced committee? I should like an assurance that those who care for the preservation of the family and care about children and their protection against this terrible threat will have an increased representation on the committee.

I am fully aware that if I press my amendment to a Division and it is accepted by the House it may mean that, because of our parliamentary timetable, the Bill will not become law. That is not my fault. That is the way that the cards have fallen. If I took that action and the Bill did not become law, I am also aware that the pornographers would have even more to laugh about than if the Bill were passed. Therefore, I should not lightly press the amendment to a Division. However, I am determined that the Government's attitude shall not go unchallenged. I am determined that the voice of ordinary people in the constituencies of this land, who were so disturbed about the matter in the earlier part of the year, shall not go unheeded. Nothing—but nothing—is more important to a nation than its children. They are its lifeline, its present joy and its only hope for the future.

11.30 a.m.

Mr. Speaker

I remind the House that we are discussing with Lords amendment no. 1 the amendment which has been moved to it, together with the second amendment to it, in subsection (4), paragraph (a), after 'reason', insert— connected directly with duties or purposes concerned with the furtherance of the objects of the Act'. plus the following:

Lords amendment no. 7, in page 4, line 15, leave out from "to" to "or" in line 16 and insert— imprisonment for a term of not more than three years, or to a fine". Lords amendment no. 8, in any page 4, line 26, leave out clause 7 and insert new clause E (Interpretation)— E.—(l) The following subsections apply for the interpretation of this Act. (2) References to an indecent photograph include an indecent film, a copy of an indecent photograph or film, and an indecent photograph comprised in a film. (3) Photographs (including those comprised in a film) shall, if they show children and are indecent, be treated for all purposes of this Act as indecent photographs of children. (4) References to a photograph include the negative as well as the positive version. (5) "Film" includes any form of video-recording. and the amendment thereto, at end insert— '(6) In considering the indecency or otherwise of any such photograph the Court may take into consideration any caption or textual material accompanying and relevant to the photograph'. Lords amendment no. 13, in line 1, leave out from "by" to end of line 3 and insert— making indecent photographs of them; and to penalise the distribution, showing and advertisement of such indecent photographs and the amendment thereto, at end insert— 'and the publication of indecent printed matter in connection with such photograph'.

Mr. Ian Mikardo (Bethnal Green and Bow)

I rise for two purposes. First, I rise to support the amendment put forward by their Lordships as well as the other amendments that, as you have directed, Mr. Speaker, we shall discuss with them at the same time. Secondly, I rise to express my sincere thanks to the members of another place who spent a great deal of time, devoted a great deal of effort and applied a great deal of expertise to the task of dealing with the Bill. They succeeded, with no little difficulty, in turning what was a rubbishy and useless Bill into an effective measure that has as good a chance as any Bill can have in advance of fulfilling the purposes to which it is directed.

There is not and never has been any division of opinion in the House—nor has there been in another place—about the purposes of the Bill. The hon. Member for Essex, South-East (Sir B. Braine) is not alone in his concern for the welfare of children. I speak as a father and grandfather, and I do not accept his view that on these matters women are necessarily more concerned than men. There was no division of opinion about the purpose of the Bill.

I take no exception to what the hon. Gentleman said about the occasion on which some anger was expressed. On that occasion he was as deluded as many others. The anger to which he referred came about because there were those who were willing to have a rubbishy Bill put on to the statute book without any opportunity of discussing it and amending it. The anger was against an action that ensured that the Bill would be properly examined and that its defects and inadequacies would be corrected before it came on to the statute book.

I cannot believe that that is a proper subject of anger. Nor should it have been a subject of anger, except to the lower IQ brackets on the Opposition Benches and the lower level of newspapers that supported them and every morning exhibited their high ethical standards by delivering a moral homily on page 2 and printing a large photograph of a naked young lady on page 3. Those were the people who generated the anger. I know that the hon. Gentleman would not want to be tarred with their brush. I know that he would not want to be associated with them, but some of his hon. Friends were not so scrupulous.

I shall quote a passage from a speech made on Third Reading in another place by a highly respected independent Member of their Lordships' House.

Mr. Speaker

Order. The hon. Gentleman will have to paraphrase unless he wishes to quote a noble Lord speaking on behalf of the Government in another place.

Mr. Mikardo

I am obliged, Mr. Speaker, for your kind direction. I shall proceed to paraphrase. The noble Lord informed the House that a few days earlier there had appeared in the Evening Standard a picture taken near the Serpentine in Hyde Park of a large policeman holding by the hand a very small child, who was naked, on one of the few sunny warm days that we had had up to that time of the year. The Evening Standard put below the photograph a caption to the effect that it was probably the last time that it would be able to print such a picture because of the Bill that was passing through Parliament. The noble Lord said that if that were so it would be absolutely wrong. He went on to urge that with such legislation it is terribly important that we should carefully consider the wording and that we should not legislate in a wave of vulgar populist hysteria. That was said by one of the most respected independent members of another place.

Let us consider what happened to the Bill in another place. As hon. Members know, it is not a large Bill. It is slightly more than four pages long and it consists of a title and eight clauses. In another place the title was amended. One clause was scrapped, as it was counter-productive. It was considered to do nothing to fulfil the objectives of the Bill and it was thought that it might have hindered them. Four clauses were amended, some of them substantially. Three clauses were found to be so bad that they could not even be amended. They were thrown out and replaced with entirely new clauses. Finally, an additional clause was agreed to.

That must be an all-time record for a Bill coming before the House. In my years of experience in this place I cannot recall any Bill being changed to anything approaching that enormous degree in Committee in either House, or in both Houses put together. Those changes show what a hopeless Bill it was when it first came before us.

When considering the Bill in the preliminary stages there was one aspect that caused me concern. My mother had on her mantelpiece a photograph of my younger brother, who is now a 50-yearold solid pater familias and a member of the council of one of the London boroughs. At the time that the photograph was taken he was three weeks old. There he was, lying naked as the day he was born, on a furry rug. He was lying on his belly, with his little posterior projected in the direction of the North Star. There were tens of thousands of similar photographs throughout the country. I was worried that such photographs would be caught by the Bill. I am not 100 per cent. sure about that even now. It may be said that the Director of Public Prosecutions would not authorise a prosecution, but it would be nasty and unpleasant to be charged with anything of that sort.

The Minister of State, Home Office (Mr. Brynmor John)

As my hon. Friend is raising judicial interpretation, it is fair to say that there have been decided cases in which nudity by itself has been held not to be indecency. It seems that the law has taken care of the sort of case to which he refers.

Mr. Mikardo

I am obliged to my hon. Friend. However, their Lordships referred to other possible examples. They quoted the example of a police photographer who in the course of his duties might have to take photographs of the private parts of a child who allegedly had been assaulted, or even a chap taking a beach photograph of his lady wife in a bikini when there walks by a small child who crosses the field of the camera and becomes part of the photograph. However, their Lordships have done a great service.

It is no secret that I am not the greatest admirer of the institution of a Second Chamber. I hope that no one will say "This proves the need for a Second Chamber". It does nothing of the kind. The only reason that their Lordships were required to do the job that they did so well was that this House was too lazy, cowardly or incompetent to do its own job. Of the three adjectives, I would choose "incompetent". I have drawn attention to this matter before. Our idiotic procedures on Private Members' Bills ensure almost without exception—there are a few exceptions—that the Private Members' Bills that are discussed in detail are never passed, whereas those that are passed are never properly discussed. I think that the time has come for one of our two Select Committees on Procedure to have a look at this matter.

Mr. Speaker

Order. I really am being very tolerant to the hon. Gentleman, because he knows the House so well. But he must come back to the amendment.

Mr. Mikardo

I shall come back to the amendment, but not at any great length. I hope that what I have said has been enough to show that the anger to which the hon. Member for Essex, South-East referred—some of it genuine, but a heck of a lot of it synthetic and stimulated by very low level newspaper stuff—was in practice not justified. The great work that their Lordships have done on the Bill—I repeat my tribute to them—directly illustrates that is true.

Mr. Michael Alison (Barkston Ash)

I listened with great attention to the hon. Member for Bethnal Green and Bow (Mr. Mikardo). He tried to escape from the dilemma, but I thought not wholly convincingly, of having blown up the value of the House of Lords in this context by going to the even more undemocratic position of alleging that the Private Member's Bill procedure was a farce. We have an unsatisfactory account of his hostility to the Bill in the way he criticised my hon. Friend the Member for Bexleyheath (Mr. Townsend) for introducing what he called a "rubbishy" measure. The hon. Gentleman then blows up the House of Lords—quite properly, in my view, in the positive and helpful sense of doing a marvellous job on the Bill. But he said that in any case Private Members' legislation as we have it is totally undesirable.

I point out to the hon. Gentleman, with his avowed, and, I accept, totally sincere support for the underlying objectives of the Bill, that, if it were not for the Private Member's procedure and the vote that the House was able to take on Second Reading—there was support from both sides of the House and from the House of Lords—this measure would not have been introduced at all. All the fears, scandals and hazards to which my hon. Friend the Member for Essex, South-East (Sir B, Braine) referred would have continued and maybe expanded, because the Minister of State, his advisers and the Home Secretary approached this proposition with the deep conviction that the Bill was not necessary. The argument was not that it was rubbishy in its drafting, not that it simply needed improvement in the House of Lords, but that the law was adequate as it stood and, therefore, the Bill was not necessary.

Had it not been for private Members—the hon. Gentleman was one of them—insisting by the kind of speeches they made that the Government should swallow their pride and accept what Private Members wanted, we would not have had any measure on this subject. That would have been the worst of all possible worlds. The Private Members' procedure, plus the Second Chamber, is the best—not the worst—of all possible worlds.

Mr. Mikardo

I was not arguing that we should not have the Private Member's Bill procedure. I think that we should have more Private Members' time both for motions and for Bills. I was arguing that we should use the time intelligently and that we shall not do so until the procedure is improved.

11.45 a.m.

Mr. Alison

I am fully at one with the hon. Gentleman. I believe that most Back Bench Members, on both sides of the House—certainly on the Opposition side—could introduce more sensible measures that the present Government. If the hon. Gentleman's argument is that we should have less Government time within the admittedly strictly prescribed parliamentary time available year by year and more Private Members' time, I am entirely at one with him. I think that the country would be happier if we had less time for the Government and more time for Private Members, provided that there were genuine facilities for the draft measures introduced to be properly considered, amended and dealt with in the House of Lords.

I shall be rebuked by you, Mr. Speaker, if I do not come to the amendment. I shall do so quickly. I refer, first, to the second of the amendments standing in my name and those of my hon. Friend the Member for Devon, West (Mr. Mills) and the hon. and learned Member for Warrington (Sir T. Williams). I believe that it has a bearing on the argument adduced by my hon. Friend the Member for Essex, South-East. Although it does not strictly come within Lords amendment no. 1, it is the same subject.

My hon. Friend the Member for Essex, South-East, when arguing about the text of the Bill, seemed to deploy a general argument about the need to try to take account, in the narrow confines of this measure, of the wider problem of the obscenity of texts as such and the harm or damage that they might do. He rightly pointed out that this was one of the matters taken into account by the Williams committee, and he sought to try to have some of the Williams committee's study of the matter brought forward to make it relevant to the Bill. I understand what he is trying to do, but I suggest that there is another way in which the same objective can broadly be secured. I suggest that the Minister of State should accept our amendment to put this reference into the definition clause.

The matter of the text is crucial. Fundamentally the Bill, which is specific and narrow in ambit, is concerned with the protection of children, not with the merits or otherwise in obscene terms of a particular text. The real danger to children lies in their involvement in the corrupt world of adult exploitation. It is that corrupt physical world which lies behind any photograph or text which may appear in any publication on a bookstall that we have to get at.

There is the example of the child who is photographed naked. It could even be the baby son, grandson or relation of the hon. Member for Bethnal Green and Bow lying naked on the rug. The photograph of a naked child in any particular posture or attitude is not in itself obscene. But, if that photograph were taken and subsequently used for the purpose of titillating or illustrating a profoundly obscene and pornographic text, the circle of people who got hold of the child in order to photograph him or her in that apparently innocent posture, the studio set-up in which it occurred and the contacts that the child would make in the process of being photographed would draw the child into the dreadful world of sordid and corrupt exploitation. We are concerned with damage and danger to a child, and in those circumstances both damage and danger are self-evident. We are concerned about the world which tries to use photographs of children in a fundamentally pornographic setting.

In that context, I am encouraged that the Minister of State in the House of Lords said: Nor do I think that a responsible medical journal is likely to print photographs with the kind of ingredients additional to simple nakedness which a court is likely to find in their context—and I do not believe that the concept of indecency can be divorced from the context —are indecent."—[Official Report, House of Lords, 28th June 1978; Vol. 394, c. 335.] Those are important words. The Minister does not believe that the concept of indecency can be divorced from the context. He is right.

All that my amendment seeks to do is to write that into the definition clause of the Bill. My amendment reads: In considering the indecency or otherwise of any such photograph the Court may take into consideration any caption or textual material accompanying and relevant to the photograph. We are seeking to spell out the association of text with photograph which the Minister of State in the House of Lords admitted was a natural and inescapable legal consideration. Perhaps the Minister this afternoon can assure us that there will be no occasion when a semi-innocent photograph of a child will fail to fall within the ambit of the Bill if the text surrounding it is self-evidently pornographic or obscene. We must have an assurance, because underlying this matter is the possibility of a child being drawn into a dreadful underworld network and the damage that will be caused as a result.

Sir Bernard Braine

Does my hon. Friend agree that we are discussing not merely the question of the possibility of one child being drawn in by means of a photograph but rather that the whole object of the pornographer is to widen the circle so that more children are brought in, in order that money can be made out of the sales of this filthy material? We are concerned such with the intention behind the taking of the photographs, even if they are, by any test in a court of law, not indecent, or not very indecent. If only one could grasp that, we should see the idiocy of the stand that the Government have taken in resisting any suggestion that the Bill should include textual material.

Mr. Alison

We are both firing at the same target. I am not too much concerned with criticising the text in the Obscene Publications Acts sense. I simply want a generalised recognition that if a text is prima facie pornographic or obscene and associated with it is a child photograph, which might not be self-evidently or wholly obscene, the person responsible for taking that photograph should be subject to the full rigours of the Bill. We must prevent children being associated with the mechanism of the production of this type of material.

My amendment to Lords amendment no. 1 which we are discussing in this group of amendments deals with different matter. I do not know whether I should allow Ministers to reply to the first amendment before I deal with the second.

Mr. Speaker

It would be helpful to the House if the hon. Member pursued his separate argument so that both matters might be dealt with together.

Mr. Alison

The second amendment deals with the possibility of a defendant in court proving that he had a legitimate reason for distributing or showing the photographs". By adding, after "legitimate", the wording connected directly with duties or purposes concerned with the furtherance of the objects of the Act", the amendment tightens up a possible looseness in the defence scope offered by the Lords amendment.

Overkill rather than underkill is desirable in this measure. The House will know of the regular farce which occurs in the context of the Obscene Publications Acts because of the exploitation of the unintended looseness involved in the concept of the public good. There is also a looseness which arises from the idea that someone might have legitimate reasons for possessing, showing or distributing such material.

The word "legitimate" cannot be intended to protect the police, magistrates, solicitors or other officers of a court who might unavoidably have to handle, possess, distribute or show such materials as part of their normal court activities. It is widely accepted that those who are professionally engaged in the affairs of the court should not be subject to penal sanctions in connection with materials which they possess or exhibit in the process of law.

The system works satisfactorily at present in connection with the Obscene Publications Acts and with matters which involve the possession and distribution of firearms or dangerous drugs. Officers of the court, the police, magistrates and lawyers have to possess, distribute and handle materials such as firearms and drugs which would not be legitimate for them to handle outside their court duties. There is no need for the word "legitimate" to appear in this measure in order to protect such people. They are already protected adequately.

What group is the word "legitimate" designed to help? The burden is upon the Government to show that they have in mind a particular group involved in the distribution or showing of pornographic photographs of children whom they are particularly anxious to legitimise for handling of such material. Those categories should be written into the context, or the legitimacy loophole will be blown wide open by clever defence counsel. People will be able to prove that they had legitimate reasons connected with therapeutic processes or the improvement of the health or sexual tensions or otherwise of various clients, patients and so on.

12 noon.

One can visualise the phrase "legitimate reason", which is self-evidently not needed to protect the officers of the court, being used to provide a whole new case history of people who will be able to get away with handling this type of material and taking photographs simply because the causes or reasons for having such materials are not clearly spelt out. The Government must say clearly which persons they want to legitimise or explain why they cannot do so.

I stress that I am being purely exploratory in the amendments, because the last thing I want to do is to delay the Bill. If the Minister can give convincing reasons for not accepting the amendment, I shall be only too happy to accept them. If he cannot, I hope that we shall try to amend the Act, as it will be, in another Session, particularly if it is not achieving its intended purpose.

Miss Jo Richardson (Barking)

The House will be relieved that, in spite of the wholesale support for the principles of the Bill as originally introduced, it has been amended in the way it has been by the House of Lords. I wish to seek clarification of some aspects of new clause A, and I shall put questions which I hope the Minister or the sponsor will answer, because it is important that those answers should go on the record.

Take, first, subsection (1)(a), (b) and (c). I am not clear, in spite of what has already been said, about the definition of the word "indecent". I accept, of course, that pornographic films and photographs are self-evidently indecent. I am still concerned, however, to avoid a catchall situation for people who are quite innocently taking photographs of their family, of children on the beach and so on. I seek an assurance that pictures taken on the beach or at home in this way and distributed among the family—we are not here thinking in terms only of the three-week-old brother described by my hon. Friend the Member for Bethnal Green and Bow (Mr. Mikardo), because the Bill covers persons under the age of 16—will not come within the Bill.

A council tenant constituent of mine came to see me recently complaining that she had been subjected to a particularly nasty piece of persecution by a neighbour. All hon. Members are familiar with these neighbourhood difficulties which arise between two families living in the same block of flats. My constituent told me that she had faced a stream of accusations about her private life, all of which were totally untrue and were simply designed to harass her.

We were not discussing this Bill, but my constituent said "I just wonder at some stage whether she will accuse me of pornography because I have some lovely pictures of my kids, and once when she was in my house she noticed them and remarked upon them." That is the possibility I want to avoid.

Mr. Ian Gow (Eastbourne)

Does not the hon. Lady think that protection in the kind of situation which she describes is provided by the condition that there can be no prosecution under the Bill save with the consent of the Director of Public Prosecutions?

Miss Richardson

Of course, I would expect in those circumstances that the Director would not sanction a prosecution. However, the accusation will have been made, and it might have been made public locally. A person who is thus accused is entitled to some kind of protection. I therefore want an assurance that people who show family photographs to their friends will not be exposed to such charges.

Would the phrase in subsection 1(a) or permit to be taken involve the possibility of the child itself being regarded as committing an offence under the Bill? Presumably, if one permits a photograph to be taken one can be held to be liable. This point should be clarified, because I am sure that the sponsor of the Bill and the Home Office do not intend children to be prosecuted.

The next point requiring clarification is in subsection (1)(b), which provides that it shall be an offence to distribute or show such indecent photographs". I presume that it is intended to mean the distribution of such photographs to the public—

Mr. Mikardo

And for profit.

Miss Richardson

Yes, for profit. Could not this subsection also catch the person who passes on a nude photograph of a child, taken quite innocently, to a member of his family or of the child's family, or to a friend?

My next point concerns subsection (4). It reads: Where a person is charged with an offence under subsection (1)(b) or (c), it shall be a defence for him to prove— Should it not be for the prosecution rather than the person charged to provide the proof? I had always thought that when one committed an offence it was for the prosecution to prove one's guilt rather than for one to prove one's innocence.

Mr. John

We are discussing here circumstances in which an avowedly indecent photograph is possessed. I can assure my hon. Friend that there are many dozens of criminal offences in which, the ground bait, as it were, having been laid, it is for the defendant to prove his innocence. The reversal of the burden of proof is by no means unique to this Bill, and in this case it provides a good allowance to the person who legitimately possesses such photographs.

Miss Richardson

I am grateful for that assurance.

In subsection (4)(a) there have been substituted the words that he had a legitimate reason for distributing or showing the photographs or (as the case may be) having them in his possession for the original clause 4(b), which read he possessed with a view to production, exposed, caused to be seen, displayed or disseminated the photograph or film or copy thereof solely in the course of justice or of scientific or learned study. At least, I assume that the two have been swapped, because nowhere in the new clause can I find any reference to the question of scientific or learned study.

One thing that bothers me about this—here again I should like either the sponsor of the Bill or the Minister to give me some assurance—is that I had rather assumed that under the original clause 4(b) such things as sex education in schools would possibly be covered. I think that none of us would want to see sex education in schools having to go because of any fears that schools or those concerned with courses of study might have as a result of the passage of the Bill. I should like to be convinced that the new subsection (4)(a) covers that point.

My only intention is to try to get on the record some doubts that I have or have had that we might be catching innocent people in a net in which Parliament does not intend them to be caught. If I can have the assurances for which I have asked, I shall be very happy.

Mr. Townsend

This modest finger-in-the-dyke Bill passed its earlier stages in this House very quickly, on the understanding that the opportunity would be taken in another place to amend it in various ways which would improve the drafting and effectiveness of the legislation without in any way altering its aims and principles.

The amendments which now come back to us from another place were prepared by the Government with the agreement of the Baroness Faithfull, who so kindly and admirably piloted the Bill through the other place. The amendments were tabled jointly in the names of the Minister of State and the noble Baroness. I cannot, therefore, accept the interpretation put on the proceedings in the other place by the hon. Member for Bethnal Green (Mr. Mikardo). Indeed, a statement by the Minister in another place quite clearly supports my point of view. I hope that the House will agree that my Bill has been given a full and proper going-over in recent weeks and has been improved.

New clause A replaces clause 1 with a revised form of the offences of taking or permitting to be taken an indecent photograph of a child and of trading in such photographs or films. The test of indecency is preserved, as is the age of 16, the upper limit of those protected under the Bill.

The concept of "produce" has been replaced by distribution or showing. Distribution has been defined in subsection (2) in such a way as to cover those who deal in child pornography for commercial reasons, whether by distribution, selling or hiring photographs or films, and also those who, without any motive of financial gain, pass an indecent photograph or film to another person.

Advertising was one of the acts covered in the definition of "produce" in the Bill as published, and subsection (1)(d) specifies that as a separate offence.

The amendments also involve some rearrangement of the Bill, so that, for example, new clause A now contains a requirement for the consent of the Director of Public Prosecutions, which was originally in clause 5.

In passing, I would mention that when I spoke on Second Reading I said that I was in two minds about the need to have the Director of Public Prosecutions involved. I would only add that, following the various discussions that I have had with a wide range of people in recent months, I am now absolutely convinced that this is an important provision.

12.15 p.m.

The other provision of significance is in subsection (4) relating to the defences available to accused persons, which replaces what was formerly in clause 4. The Bill as published allowed a defence of using indecent photographs of children in the course of justice or of scientific or learned study. During my many discussions with the Home Office, we considered a number of examples of legitimate uses of these materials which would not be covered by that formula. We concluded that it was not entirely satisfactory to attempt to list in the Bill every conceivable legitimate use of such material. The new defence of "legitimate reason" is one that has given rise to some misgivings, but it received wholehearted support from Lord Scarman in what I thought was a most significant speech. It was accepted without a Division.

I have satisfied myself that it is extremely difficult to formulate a defence with greater precision than we have in the amendment. I think that we must leave it to the good sense of the courts to determine what is legitimate. It will, of course, be open to the Williams committee, which is now looking at the whole of the law relating to obscenity and indecency, to take account of the way that this particular aspect of the Bill turns out to work in practice and, if the situation appears to warrant such a course, to recommend that it should be altered. The Bill is in any case an interim measure to deal with a particular problem while we are waiting for the Williams committee to report.

I now turn to the other amendments which have been grouped with Lords amendment no. 1. Lords amendment no. 7 removes the limit on the fine which may be imposed when offenders under the Act are convicted on indictment. I know that many hon. Members do not wish to see the fine limited to a specific amount, and the revised provision for an unlimited fine accords with normal modern practice when offences are created which are serious enough to be tried on indictment.

The new interpretation of the references in new clause A to photographs is dealt with in new clause E, which makes it clear that the word "photograph" includes films, copies of photographs and films, negatives and any form of video recording.

Finally, the amendment to the long title, contained in Lords amendment no. 13, simply brings the title of the Bill into closer accord with the actual contents of the measure.

I listened very carefully to hon. Members' speeches this morning, particularly to those of my hon. Friends the Members for Essex, South-East (Sir B. Braine) and for Barkston Ash (Mr. Alison). I am pleased that they have put down their amendments, because it was only right that this House should have a chance to consider two of the most controversial and important problems we face—namely, whether we should be doing something about texts in the Bill and whether "legimate reason" is the best way forward.

I entirely agree with my hon. Friend the Member for Essex, South-East that texts are a serious problem. He and I recently looked at some particularly unpleasant pamphlets, and there can be no doubt that the wording was damaging. For example, in one that I saw, the suggestion was made that if a small boy wishes to earn £5, he goes along to, say, a lorry driver and has sexual relations, and that this is a perfectly normal way of behaving. I think the House will accept that that is not a satisfactory suggestion to have in print. Therefore, I have no illusion at all that many of the texts are dangerous.

Clearly, however, there are major problems in attempting to tackle the question of texts in the way suggested. Had I had a completely free hand, had this not been a Private Member's Bill, it is possible that I would have put forward a different form of Bill to include texts. I have to tell the House frankly that I have not attempted to reform the obscenity laws. That is clearly a matter for the Williams committee. I have gone for one specific and comparatively narrow target—pictures.

I am sure that it is good sense to confine the Bill to the one issue of pictures. As soon as one gets involved with censorship of the written word, one moves rapidly into a difficult and dangerous area. We have only to think of some of the classical texts in English literature to wonder whether they might be caught by some possible wording in the Bill. Let us suppose that there is a suggestive poem written alongside one of these photographs. We can see that it would be difficult for the courts to decide whether it with a good or a bad poem, whether it was suggestive and so on.

I turn now to the brief discussion that we had on the issue of "legitimate reason".

Mr. Alison

In the amendment to Lords amendment no. 8 to which my hon. Friend has referred, the necessity is not to reach a conclusion about the content or merits of a particular text. The amendment merely says that it should be taken into consideration by the court. That is very loose, but nevertheless it would be a proper amendment to make to ensure that the context was at least considered.

Mr. Townsend

I have to agree that the wording is loose. I think that it would be dangerously loose. It seems that the courts will look at the publication. They will not cut out the photograph and stick it on a blank piece of paper. They are bound to have some regard to the context of the photograph.

I return to the discussion that we had on "legitimate reason". I would be the first to agree that it is not a perfect solution. I would also be the first to point out that in the past six months no one has come up with a better solution. We must get away from the previous approach, the "shopping lists" approach, whereby we list the number of special categories. In discussing this matter with the Home Office, it was not impossible to think up some, admittedly obscure, cases where some sort of cover was required—for example, for the campaigner, the editor of a national newspaper who wants to show in a year's time that my measure is not working.

We learnt that the British Museum has, for some reason, a selection of indecent photographs from the last century, for historical purposes. I have nothing against the British Museum having these photographs, but the museum will need some cover in my Bill. I took the trouble to write to an eminent psychiatrist at Cambridge who assured me that from time to time in the medical world, admittedly rarely, indecent photographs were used for medical purposes. I do not say that these are commonplace occurrences, but I believe that in a Bill of this nature we must think of all such possibilities.

We considered trying to restrict this phrase by saying that if the photograph was held for the purposes of gain that would not be a legitimate reason. That point was effectively shot down in the other place. No one has come up with a better phrase than "a legitimate reason", and we have not so far been able satisfactorily to restrict that phrase. The words "duties or purposes" are, I believe, far too vague. I must ask the House not to support these amendments.

I turn now to some of the points raised by the hon. Member for Barking (Miss Richardson). Perhaps it is best if the Minister gives a detailed answer. I draw the hon. Lady's attention to the speech made in another place on 18th May by the Minister of State. The hon. Lady asked me about the word "indecent". On that occasion the Minister said: 'Indecent' or 'obscene' is the test laid down under the Customs legislation for Prohibited imports, and under the Post Office Act 1953 for prohibited matter in the post. Public displays and advertisements are illegal if they are indecent under various 19th century enactments, and indecency is also the test under certain offences at common law, such as that of indecent exhibition which applied to the exhibition of films until the autumn of last year. There is, therefore, nothing new in the concept so far as the courts are concerned…I think, frankly, that there is no danger that ordinary family snap-shots, or legitimate sex education material, would be caught by the terms of the Bill."—[Official Report, House of Lords, 18th May 1978; Vol. 392. c. 562–3.] If the hon. Lady reads further the reports of another place, I believe she will find that all the assurances she seeks have been given. I take note of her point about children being prosecuted. As far as I can make out, it might be possible for children over the age of 10 to be prosecuted. I would welcome the Minister's judgment on that point.

Mr. Michael Neubert (Romford)

This is my first intervention in the proceedings on the Bill. My hesitation about taking part until now has not been due to any reason which devalued the significance of the issues raised by the Bill but was rather because until now I have been assured and reassured that my hon. Friend the Member for Bexleyheath (Mr. Townsend), having had the good fortune to introduce the Bill, would ensure that its prime purpose of protection would be met. In that endeavour, he has not only my support in believing that the protection of children must have a high priority in our society but the support of many of my constituents.

The shock waves set up by the revelations of the dangers to which children were now vulnerable caused an immediate reaction among my constituents. In common with the experience of many other hon. Members, my correspondence reflected that violent reaction. I congratulate my hon. Friend on overcoming the initial reluctance of the Home Office. It was necessary that he should do this, because it is clear that if he had not pursued the Bill we should now, no less than a year after the setting up of the Williams committee—it was set up on 13th July last year—be without any potential cover for children in this context. My hon. Friend has proved to be entirely justified, not only in pursuing his measure but in persuading a large number of hon. Members on both sides of the House to overcome ministerial reluctance.

Until now, I have been assured that the purposes of the Bill would be met. However, I have to say that in moving his amendment my hon. Friend the Member for Essex, South-East (Sir B. Braine) has raised serious doubts in my mind. This concerns me because the hon. Member for Bethnal Green and Bow (Mr. Mikardo) would do well not to seek to devalue the strong feelings which people have and which inevitably are to be found expressed most pungently in the more popular newspapers.

Mr. Mikardo

May I tell the hon. Gentleman—it shows what a difficult area of law and of public reaction we are in—that a great many people who expressed their anger to me did so in language of unspeakable obscenity?

Mr. Neubert

The hon. Member is rather better equipped to deal with such abuse than the young children about whom we are talking this morning. I cannot feel quite the same sympathy for him as for young children who are the delicate seedlings of society and who deserve every protection. The hon. Member, representing the constituency he does, will not be unfamiliar with the kind of language with which he was addressed. I believe that such language arises not as a result of any theological disputation about the issues in the Bill but from the belief that his objections to it were prompted not by the Bill's merits but by the fact that the Bill stood between him and his own Bill which is no. 11 on the Order Paper today.

Mr. Mikardo

The hon. Gentleman is factually wrong. My Bill was before this one.

Mr. Neubert

Initially that was so. Now it stands lower down the list.

The hon. Gentleman would do well not to devalue the campaign of my hon. Friend the Member for Essex, South-East. My hon. Friend's campaigns on moral causes arouse strong feelings in this House and elsewhere because he prosecutes them with a rare combination of passion and pertinacity. He is speaking for many people when he argues causes in this House, of which this one is an illustration.

The doubts which my hon. Friend has raised this morning about whether it would be possible in the terms of the Bill for otherwise innocent photographs, if published in such a context and with such a caption, to meet the needs of pornographers and to enable them to earn massive profits give me ground for apprehension. I hope that the apprehensions which I have and which obviously are to be found elsewhere will be allayed by the Minister.

12.30 p.m.

Although it might be thought unlikely that the picture of the hon. Gentleman's very young brother on a fur carpet in all his pleasant nakedness could be used in this way, I have a current illustration of the technique actually being demonstrated for commercial advantage. Plastered on poster-boards all over London at present is an advertisement featuring Colman's mustard. One would have thought that such a well-known household product—part of the traditional English way of life—did not need to be promoted by a picture of a languorous young woman clad in a leopard skin and lying on a white rug in front of a blazing fire. It is difficult to see the relevance of that to Colman's mustard.

The relevance becomes clear only when the text is added. The text is— C'mon Colmans, light my fire. No Member of the House who is present needs to be shown by me the sexual connotations of that slogan. It displays the poverty of imagination of the advertising agent who finds it necessary to introduce that kind of element in promoting such a salutary household food.

However, that poster demonstrates to my satisfaction that it is possible to take a photograph and, by setting it in a context and giving it a certain caption, to use it for the purpose of pornography. If they were photographs of children and if they could continue to be used in that way from this point when the Bill looks likely to secure its passage on to the statute book and when the Bernard Williams committee reports at some time in the future, it is wrong that we should let this go by.

Finally, if people were moved to anger by original revelations and if they have been reassured by the passage of the Bill that the point is being met, their anger will turn to outrage if subsequently it is found that, even though the Bill is on the statute book, there is a loophole and certain people can still get away with promoting their filthy trade. I ask the Minister to address his attention to this matter.

Mr. John

I want to deal first with the general points in this case. Because of the speech of the hon. Member for Essex, South-East (Sir B. Braine), with whom I have crossed swords on many occasions in relation to this point, it is necessary for me to put on record that it is true that the Home Office took the view that the overwhelming majority of cases were covered by the existing law of child pornography.

On the earlier occasion I cited—I do not intend to do so now—the various provisions which cover those offences. I conceded that there was a relatively small category of case in which indecent photographs could be taken without the offence of indecent assault having been committed by touching the person, and, because of that, the Government gave their blessing to the Bill.

I think that all hon. Members should understand that the process that has gone on since Second Reading in no way illustrates either lassitude or hostility on the part of the Government, nor indeed is it any indication of how bad the Bill was originally. What has happened is that since Second Reading there have been frequent discussions between the sponsor of the Bill and the Home Office, at both official and ministerial level. The amendments that have come from another place are the amendments that the Government and the sponsor had hammered out for tabling during the Committee stage in this House. If there is a criticism to be made, it is that there was no time to consider the Committee stage in this House rather than that there were added resources which became available in the other place but were not available here.

There has been a considerable amount of discussion, in which, as I think the sponsor will be willing to concede, the Government have played a very willing and constructive part. I therefore reject the criticism of the hon. Member for Essex, South-East. I know that he will take that as a reassurance rather than with any resentment that his own words have been put back in his face.

I commend the Lords amendment because, as the sponsor has said, it has combined within the one clause a number of elements which were disparate in the original Bill and it has strengthened and made more effective the wording of what will be clause 1 in the Bill. I therefore hope that the House will accept the Lords amendment.

I shall devote the rest of my time to answering the many Points that were raised in debate. I shall do so in the order in which the speeches were made, starting with the speech of the hon. Member for Essex, South-East.

As the hon. Member for Barkston Ash (Mr. Alison) pointed out on Second Reading, the central purpose of the Bill is to protect the child who is exposed to photography. The hon. Gentleman pointed out that what personalised the matter was the photograph rather than the text, which might be quite theoretical So text was not included, because the real vice, in this particularly vicious and loathsome trade against which the Bill is aimed, is the extent to which indecent photographs can be taken of children in ways which would not at present lay those who take them open to prosecution.

In several parts of his speech the hon. Member for Essex, South-East almost fell into the trap of saying that there was an argument for legislation to take care of words without photographs. It may be that he believes this. If he does—

Sir Bernard Braine

rose—

Mr. John

Let me deal with this. The hon. Gentleman mentioned, for example, the man from the Paedophilia Information Exchange who, having read Danish—or was it Dutch?—hard porn went on and started to practise that particular loathsome activity; but there was no mention of the photograph. Let me return to the protection that exists—

Sir B. Braine

rose—

Mr. John

Let me finish and then I will certainly give way to the hon. Gentleman. At present the Obscene Publications Act applies to those documents which are of themselves obscene in this country. The hon. Gentleman mentioned the importation of foreign material. Where material is imported, it is liable to seizure under Customs legislation if it satisfies the less stringent test of being indecent.

Sir B. Braine

The hon. Gentleman must not put words into my mouth. What I said is on the record. I certainly recall exactly what I said. In the case I quoted the man's fantasies had been fed by pornographic material which was illustrated by photographs. I was establishing the fact, which everybody except the hon. Gentleman seems to understand, that there is a definite connection between the use of photographic material, the text and the procuring of children and thus widening the circle of children who are affected by this particular type of offence. If the hon. Gentleman cannot grasp that, he has grasped nothing.

Mr. John

I am delighted that the hon. Gentleman is ending this debate, as he began it, in a thoroughly churlish, partisan and rather childish way. On the last occasion he walked out of the Chamber and came back later having no doubt ventilated his steam somewhere else. If he cannot discuss differences of debate or of wording calmly—because he devalues his own case by behaving as he does—he would do better to listen rather more carefully.

Sir B. Braine

On a point of order, Mr. Deputy Speaker. I am perfectly capable of containing myself. The hon. Gentleman is attacking me—

Mr. Deputy Speaker (Mr. Bryant Godman Irvine)

Order. Whether the hon. Member for Essex, South-East (Sir B. Braine) can contain himself is not a matter for the Chair.

Sir B. Braine

My point of order is this, Mr. Deputy Speaker: the Minister alleged across the Floor of the House that I had said certain things which I most certainly had not said. When I rise and tell him that this is not so, he continues his attack. Is it in order for a Minister of the Crown to behave in that fashion?

Mr. John

I was not attacking the hon. Gentleman initially; I was referring to what he seemed to have implied about words without photographs. That was not an attack. I was referring to the way in which his speech was tending to go. I see nothing in that for which I need apologise. I do not think that there is anything that I need to withdraw in that. But let me get back to the theme of the matter and let the hon. Gentleman play to the gallery somewhere else.

I am talking about the hon. Gentleman's amendment, and I say to him, and to the hon. Member for Romford (Mr. Neubert), who is anxious about this matter, that the question seems to be whether a photograph which was innocent could be embellished by textual description in such a way as to make indecent what was innocent. The wording of the amendment of the hon. Member for Essex, South-East is: publish indecent printed matter in connection with an indecent photograph". There is no question there of an innocent photograph. The photograph must, by the terms of the amendment, already have been indecent. There cannot be a question, therefore, of turning what was a pure photograph into an indecent photograph, merely by description.

That does not answer the point made by the hon. Member for Barkston Ash—I will come back to his point—but I hope that it meets the point of the hon. Member for Romford. We are talking about indecent photographs. If the photograph is indecent, the whole purpose of the Bill is to outlaw it and to make it no longer a lawful thing to publish. If it is then published, prosecution can and should follow.

Although I accept that words can make worse what a photograph illustrates, I believe that the terms of the amendment would not serve the purposes for which hon. Members seem to want it, because the photograph would have to be an indecent one, and indecent photographs, by their definition under the Bill would be outlawed. I hope that that amendment can be withdrawn without the Bill as it now stands being threatened.

Mr. Neubert

Would it still be possible for innocent photographs to be used in that self-same way?

Mr. John

I shall be coming to that point when dealing with the remarks of the hon. Member for Barkston Ash, because his amendment no. 8 deals with that point in a way by saying that In considering the indecency or otherwise of any such photograph the court may take into consideration any caption or textual material accompanying and relevant to the photograph". The photograph is at the centre of the Bill, and the indecency or otherwise of the photograph will be perfectly well understood from the context. The context includes all the surrounding material. I hope that the hon. Member will not press his amendment for a reason that is opposite to the one that he is adducing. He is saying that in the case of a perfectly normal photograph, which is not indecent at all, it would be possible by the description to make it appear indecent, but I suggest to him that the converse could be true. In the case of an indecent photograph, it would be possible, by the use of such anodyne words as "John is the 100 yards champion of his school", to change the context, and it could be argued before a court that as a result the photograph was less indecent because the surrounding text was perfectly straightforward.

I suggest to the hon. Gentleman it is the photograph and the surrounding circumstances in which it is published which need to be considered. I do not think that we need to isolate the text, or to run the risk of lessening the indecency of the photograph by the text in the way that has been mentioned. The wording of the Bill has been discussed over many hours outside the Houses of Parliament, and for a far longer time than Parliament has discussed it. In my judgment, the new clause that comes from the House of Lords will be effective in meeting the purposes of the sponsor of the Bill.

12.45 p.m.

I cannot, of course, guarantee that smart lawyers will not seek to do something or other. After all, everyone has the right to be defended to the best of his lawyer's ability. I believe, however, that the offence which we seek to put on the statute book is worded effectively. After all, that is the legislators' duty.

I now turn to the amendment in the name of the hon. Member for Barkston Ash, the wording of which is connected directly with duties or purposes concerned with the furtherance of the objects of the Act". The object of the Act will be to punish those who take photographs of people under 16 for indecent purposes. There may well be many cases in which that wording would, for example, outlaw a monitoring of the effect of the Act. if the purpose of the Act is connected directly with the prosecution of people who are seeking to capitalise on this trade, in my view the question of research may not be covered, and the question of monitoring may not have been considered.

I will give the hon. Member for Barkston Ash two examples of cases which are outside our normal ken but which are nevetherless valuable as examples. As he will know, there are mentally disordered patients, and in many cases the crimes for which they are committed are sexually oriented. There is an ambivalence about their sexual orientation. Some of them commit crimes which are both heterosexual and homosexual in nature. A psychiatrist has very real difficulty in isolating, the right sort of treatment to give such patients. Before he can determine the degree of danger to the public, especially if there is likely to be an inward progression of the patient's condition, he needs to have an opportunity of examining and isolating the patient's true sexual orientation and motivation. This can be done by the showing of slides and photographs to the patient.

I believe that the words "legitimate reason" in subsection (4)(a) have great merit, in that they would include the sort of example that I have just given, whereas it would not be included if we were to adopt the wording of the amendment, which is: connected directly with duties or purposes concerned with the furtherance of the objects of the Act". I wish to return to a point made by the hon. Member for Essex, South-East concerning paedophilia. I regard that trade as being as loathsome as the trade of pornography. There is no question that we all have a great loathing for paedophilia. Nevertheless, it is possible for some paedophiliacs to be turned from their ways by means of aversion therapy, and during the course of that aversion therapy it might be necessary to use slides or pictures which might themselves be regarded as indecent. Nevertheless, they would be serving purposes which, in the long run, would be wholly in the interests of society, by converting a former paedophiliac back to normal sexual channels and normal sexual orientation.

Mr. Alison

I am very concerned and worried by the case that the Minister is developing. I know exactly to what he is referring. In an earlier ministerial capacity I have seen, at Broadmoor hospital, exactly the processes mentioned by the Minister used for testing responses arising from the presentation of photographs. I hope that the Minister will bear in mind two very important points. First, we are concerned here with the exploitation of children. The fact that, subsequent to the production of an obscene photograph of a child, a constructive and productive use can be found for it in Broadmoor hospital, does not alter the fact that the photographing of the child in another context is profoundly damaging. Therefore, it could legitimise the production of a set of photographs for official purposes by its being held in a prosecution in court that they were used in Broadmoor and that that legitimised them.

I make my second point quickly. I hope that the Minister will try to deal with both points. I hope that he realises also that once it is said that there is a legitimisation for this kind of photograph in a therapeutic context, we are off on the "public good" defence, which we found so damaging to the purposes of the Obscene Publications Act, and I can see the way in which it would be exploited.

Mr. John

As the hon. Gentleman knows, the hospitals themselves do not produce these photographs, so there is no danger of their committing the offence, and those who have produced the photographs may have themselves been prosecuted. I am saying that there may be cases in which a person has a legitimate reason for having such photographs, which is not connected directly with the duties or purposes of the objects of the Act. Therefore, I am saying that the limitation of "legitimate reason" would be too great.

Perhaps I may say, in passing—since the hon. Member wants to tighten up the purposes of the Act—that I believe that connected directly with duties or purposes concerned with the furtherance of the objects of the Act would lead to a trial within a trial, which would be quite as capable of interpretation by defending counsel as anything that has been suggested so far, so that in fact the hon. Member may well be leading the courts into a great deal of difficulty.

I commend to the hon. Member the speech of Lord Scarman, who is a judge of considerable experience. He said that legitimate reason is a matter which can safely be left to courts and juries as a matter of common sense. The fact that it is new wording ought not to take us away from that. Therefore, I hope that the hon. Member will leave the text of the Bill as it is.

My hon. Friend the Member for Bethnal Green and Bow (Mr. Mikardo) mentioned the police photograph. If a police officer, in the duties that he performed, had to take such a photograph, it would not be indecent because the intent behind it would not be indecent. But "legitimate reason" would cover such a case. I hope that my hon. Friend is reassured about that.

My hon. Friend the Member for Barking (Miss Richardson) can be assured that "indecent" is as it was described, and that if there is an innocent photograph it is not by definition indecent, and nudity of itself is not indecent. That has been held by a long series of judicial decisions.

Distribution is not a real issue, in my view, although it cannot be put quite as simply as my hon. Friend suggested. It is not done only for gain. One has knowledge of paederasts who pass the photographs of young children from one to another without commercial exploitation but nevertheless in a way that can lead to the seduction of young children. As it is at present mentioned, distribution covers not only commercial exploitation but cases such as that.

My hon. Friend the Member for Barking also asked whether a child could be guilty of the offence of permitting a photograph to be taken. There is well-defined judicial authority that where a statutory offence is committed with the object of protecting a class of persons, that class of persons which is exploited is not itself open to a criminal charge because it has been exploited. In this Bill, we are after the exploiter, and not the child who has been exploited. Therefore, the child would not be guilty of any offence merely because he or she had been exploited in such a way that indecent photographs were taken.

To come back to a non-controversial note, I hope that the clause as the other place has sent it to us is worthy of commendation as it stands and that none of those hon. Members who have tabled these amendments will press them and so endanger the passage of this Bill. We all know the present parliamentary position. That is why I commend the Lords amendments to the House.

Sir Bernard Braine

It is customary after the Minister has spoken for the mover of an amendment to indicate whether, in the light of what has been said, he intends to press his amendment or ask leave to withdraw it.

Nothing that the Minister has said removes the anxieties that I expressed at the outset of the debate. This is not because of the hon. Member's imputing to me so soon after the event words that I never uttered. My shoulders are broad. I venture to think that I shall be in this place much longer than the hon. Member. There will be other opportunities for me to deal with his rather cheap attack, which revealed to me and no doubt to other hon. Members just how uneasy he is in his mind about the criticisms that have been voiced this morning.

What concerns me is that the Minister has not seized the central point, which is that child pornography affects not merely children who may be involved in the taking of photographs but the much wider circle of children who are drawn in by the pornographers, who took the photographs in the first place for precisely that reason.

Mr. Mikardo

On a point of order, Mr. Deputy Speaker. Is it in order for an hon. Member, without having sought and been given the leave of the House, to speak twice other than for the purpose of asking leave to withdraw his amendment?

Mr. Deputy Speaker

I was wondering whether the hon. Member for Essex, South-East (Sir B. Braine) intended to ask leave to withdraw his amendment, and I was giving him that opportunity. I have not yet discovered whether that is what the hon. Member intends to do.

Mr. Mikardo

Further to that point of order, Mr. Deputy Speaker. So did I, otherwise I would have raised the matter before. The hon. Member has already been speaking for some time without giving the least indication of his intention to ask leave to withdraw the amendment.

Mr. Deputy Speaker

The hon. Member for Essex, South-East has heard what has been said. We are interested to know his intention.

Sir B. Braine

I am sure that you are interested, Mr. Deputy Speaker, and I feel sure that the hon. Member for Bethnal Green and Bow (Mr. Mikardo) is also interested in what I shall say. I reassure him at once that I have no intention of detaining the House, since I know that there is other important business to follow this.

Having proposed an amendment and having gone to a great deal of trouble to explain it in detail and to give reasons why I think it should be accepted, it follows that I am entitled to say, before announcing my decision, why that decision has been taken.

The hon. Member for Bethnal Green and Bow is an old and experienced parliamentarian and I bear him no ill-will for the always courteous exchanges that he and I have on these matters.

1.0 p.m.

What disturbed me was not the churlish way in which the Minister of State chose to put into my mouth words which I had not uttered—a fact that indicated very clearly the deep unease that he feels on these matters; an indication that was not lost on the Opposition Benches—but the fact that the Minister had failed to realise that there is a grave problem which will remain unresolved if we pass the Bill today without further amendment or qualification.

For the reasons that I gave earlier, although I am totally dissatisfied with the Minister of State's reply—a large number of people outside the House will be totally dissatisfied, also—I am very well aware that if I press my amendment to a Division on a Friday afternoon, the charge may be laid at my door that the Bill failed to make the statute book because of a procedural ploy on my part. I shall not open myself to that charge.

I believe that it is better to make a move in the right direction—even though I believe that the Bill will have only a limited effect—than to have no legislation at all. It should be possible to enact an amending measure in a new Session of Parliament, if it is seen that this Act will not meet the very serious problem that we face. For these reasons, and only these reasons, I beg to ask leave to withdraw the amendment.

Amendment to the Lords amendment, by leave, withdrawn.

Lords amendment no. 1 agreed to.

Lords amendment: No. 2, in page 3, line 2, at end insert new clause B Evidence):—

"B.—(1) On a charge of an offence under section 1(1)(a) of this Act, the wife or husband of the accused shall be competent to give evidence at every stage of the proceedings, whether for the defence or for the prosecution, and whether the accused is charged solely or jointly with any other person: Provided that—

1. (a) the wife or husband shall not be compellable either to give evidence or, in giving evidence, to disclose any communication made to her or him during the marriage by the accused; and
1960
2. (b) the failure of a wife or husband of the accused to give evidence shall not be made the subject of any comment by the prosecution.

This subsection shall not affect section 1 of the Criminal Evidence Act 1898 (competency of witnesses in criminal cases), or any case where the wife or husband of the accused may at common law be called as a witness without the consent of the accused.

(2) In section 27(4) of the Children and Young Persons Act 1963 (definition of "sexual offence" for purposes of provisions of that section about calling children's evidence) after "the Indecency with Children Act 1960" there shall he inserted "or section 1(1)(a) of the Protection of Children Act 1978".

(3) In proceedings under this Act a person is to be taken as having been a child at any material time if it appears, from the evidence as a whole, that he was then under the age of 16."

Mr. Townsend

I beg to move, That this House doth agree with the Lords in the said amendment.

This new clause deals with evidence in relation to charges under the Act and broadly follows provisions in the Bill as introduced. Subsections (1) and (2) replace clauses 1(3) and 1(5)(b) respectively of the Bill as published. They have now been more properly confined to those offences actually involving children. Subsection (3) provides that, as proof of age may not always be possible, the court may make its own judgment of the likely age of the child appearing in the photograph and may take account of any available evidence, such as any reference to the age of the child in the caption or accompanying text, in deciding whether the child is under 16.

Mr. John

On behalf of the Government, I agree with the sponsor that the amendment should be approved.

There are three points. First, the evidence of spouses can be admitted. Secondly, the amendment obviates the necessity of calling a child to give evidence in the committal proceedings. Thirdly, it makes much more straightforward the proof of age. This will be the difficult matter in the legislation, and to leave it to the good sense of the court in the circumstances is an improvement in the Bill.

Question put and agreed to.