OBSCENE MATERIAL (Hansard, 28 July 1982)

§ The Solicitor-General for Scotland
I beg to move amendment No. 111, in page 35, line 38 at beginning insert 'Subject to subsection (4) below,'.

Mr. Deputy Speaker
With this it will be convenient to take amendment No. 113.

§ The Solicitor-General for Scotland
In Committee, the hon. Member for Glasgow, Garscadden (Mr. Dewar) 1156 pointed out that there was an inconsistency between subsections (1) and (2) of clause 51. Under subsection (1) it is an offence wilfully to display obscene material but subsection (2) makes it an absolute offence to publish, sell or distribute obscene material, subject to a due diligence defence in subsection (4).
In Committee the hon. Gentleman suggested that both offences should be governed by the word "wilfully". While we accepted the point that there should be some consistency within the clause, contrary to what the hon. Gentleman suggested, we propose to move in the opposite direction—that is to say, to make both parts of the clause absolute and subject to the due diligence defence.
As I pointed out in Committee, if the hon. Gentleman's suggestion were to be adopted, the Crown would have to establish that the accused deliberately published, sold or distributed the obscene material. We consider that that is too severe an onus to impose on the Crown. Clause 51 concentrates on the more serious obscene material rather than merely indecent material. Therefore, we believe the correct approach is to make display, sale and distribution absolute offences, subject to the defence that the accused has used all due diligence to avoid committing the offence. Such a defence will provide a proper and appropriate safeguard for an accused person. I consider that that is a valuable and important part of the clause.
These amendments bring subsection (1) into line with subsection (2) by making both absolute offences subject to a due diligence defence.

§ Mr. Dewar
The Solicitor-General for Scotland has taken in Government amendment No. 112 as part of the package deal. Amendment No. 112 removes the word "wilfully" from clause 51 and therefore makes some sense of the first two amendments. We have done some telescoping there.
I have listened to what the Minister has had to say and he may be surprised to hear me say that I recognise that there is some virtue in what he proposes. It is clear that the Bill as drafted was wrong. No doubt as a constitutional theorist he will bear some personal responsibility for that. We could move in either way to achieve consistency. The hon. and learned Gentleman has moved in a slightly liberal way, and who am I to criticise that? He has chosen to remove "wilfully" and to insert "due diligence" as a defence. In that way he has strengthened the position of the potential offender. I am satisfied with the changes and I shall be happy to see them enshrined in legislation.

§ The Solicitor-General for Scotland
I beg to move amendment No. 114, in page 36, line 35, at end insert 'photograph" includes the negative as well as the positive version;'. The amendment is designed to make it clear that in relation to obscene material a photograph includes a negative as well as a positive copy. Such a definition is already included in clause 52(8)(c) in respect of indecent photographs of children.