SUMMARY OFFENCE OF POSSESSION OF INDECENT PHOTOGRAPH OF A CHILD (Hansard, 28 June 1988)

§ Mr. Bermingham
I beg to move amendment No. 195, in page 96, line 14, after 'any', insert 'grossly'.

Mr. Deputy Speaker
With this it will be convenient to take the following amendments: No. 199, in page 96, line 24, at end insert— '(3) A photograph of a child shall be deemed to be grossly indecent for the purposes of this Act where its production appears to the court to have involved the exploitation for sexual purposes of a child.'.

§ Mr. Bermingham
Clause 152 refers to indecency. If those who possess indecent photographs— [Interruption.] I hope that one or two Conservative Members will listen——

Mr. Deputy Speaker
Order. It would help the House and the hon. Member if the conversations on both sides of the House took place outside the Chamber.

§ Mr. Bermingham
I am grateful to you, Mr. Deputy Speaker, because the issue is important. It affects young children and, in turn, the way in which we conduct business in our courts. In the 1970s, indecency was discussed in the English courts, especially in regard to obscenity. A circus developed. Experts said that something was, or was not, indecent. Eventually, the Court of Appeal said that that sort of caper had to stop. We are afraid that, because of the way in which clause 152 is drafted, that circus will develop again.
The word "indecency" is loose. The amendments merely insert the word "grossly". We must remember that 305 for a photograph to be taken of a child in indecent positions—these are indelicate matters about which to talk —there must be a victim. These photographs are not constructed. [Interruption.] It is lamentable that, when discussing a subject such as this, I see that the hon. Member for Leicestershire, North-West (Mr. Ashby) finds it more convenient to have a conversation than to listen to the debate. Perhaps I can attract his attention.
This is a grave matter. We must not permit loose wording in statutes which would allow people to seek to avoid that which we seek to legislate against—the exploitation of children. I hope that the Government will accept this amendment and the consequent amendments which merely seek to insert the word "grossly". That word would tighten the definition and make clear to the courts that which we seek to ban or to legislate against.

§ Mr. Geoffrey Dickens (Littleborough and Saddleworth)
I shall be brief. At one time a man could have a house full of dreadful child pornography, which children have to be procured to produce and which can corrupt and entice others, and the defence was always that he had it for his own use. The Bill removes that defence and makes it a criminal offence to possess child pornography. That will protect children from being procured to produce the material, and will prevent adults from being enticed and corrupted to think about children in a sexual way. We applaud that.
The word "grossly" does not need to be added, because most courts are sensible enough to know when dealing with child pornography that such cases are indecent. Parents and courts are sick and tired of merchants peddling such stuff, to the disadvantage of Britain's children. We can rely on the good sense of our courts and public opinion.

§ Mr. John Patten
I know how much the Opposition support the general thrust of clauses 152 and 153, and we welcome that support. I also know of the Opposition's continuing anxiety about the interpretation of the words used in the drafting of the clauses, and I know how strongly the whole House feels about the exploitation of children.
My hon. Friend the Member for Littleborough and Saddleworth (Mr. Dickens) summed up the feeling of the House when he spoke about his contempt for pornography. I agree with my hon. Friend that the word "grossly" may he otiose or unnecessary. I shall explain to the hon. Member for St. Helens, South (Mr. Bermingham) why that is so, because I know that he wishes to improve matters for children and to provide better justice for them.
Over many years our courts have become used to interpreting the words "obscene" and "indecent". The hon. Gentleman reminded us of the distasteful circus that used to exist in some judicial circles. Experts, literary critics and others used to be called to say whether this or that was indecent or obscene. That was an industry not just in the 1970s but in the 1960s. One of my distinguished constituents, lamentably deceased, was Sir Basil Blackwell. He was the only man ever to stand up in a court and say that he had been corrupted by something that he had read. It was brave of him to do that.
The introduction into law of the word "gross" or grossly" to qualify indecent would lead to the reinvention of the circus that we have talked about, because it is a new 306 concept. For a decade we have had a law dealing with indecent photographs, films and videos, and there is no evidence that it has caused the courts any problems. We have searched through the cases to establish whether there has ever been discussion in court of difficulties of interpretation of the word "indecent". There has certainly never been any suggestion that an individual member of a family has ever been prosecuted or persecuted in any way for taking innocent snapshots of his children.

§ Mr. Norman Buchan (Paisley, South)
In that case, why did the Government support the private Members' Bill dealing with indecency, which used the word "grossly" to define the word offensive?

§ Mr. Patten
The Government believe that, for the purposes of the Bill, the tests of indecency and obscenity, which are well known to the courts with reference to pornography, are the right tests to apply.
I believe that the Bill substantially advances the cause of children's justice by making the simple possession of indecent photographs a criminal offence and by placing on the accused the burden of proof of showing why he is in possession of photographs that are judged by the courts to be indecent. I entirely appreciate what the hon. Member for St. Helen's, South has said and the spirit in which he made his remarks, but I do not think that his amendment would improve matters, given that the courts have great experience of the interpretation of the word "indecent". On those grounds, I would ask the hon. Gentleman not to press the amendment.

§ Mr. Bermingham
I have listened to the Minister's remarks with care, because I think that he and I are ad idem in what we seek to do. The difference between us is that I am perhaps more cautious than he is. My caution is based on the experience of the courtroom and the arguments that apply there, and I find that clause 152 lacks clarity in part.
I do not propose to press the amendment to a Division. I shall merely put down a marker. I greatly fear that with the passage of time, and given the lamentable views of certain persons in this country, we may find that the word "indecency" is not enough to protect children from exploitation by those who seek to make a commercial profit from despicable merchandise. That is why I sought to tighten the law and make it more difficult for those who seek to defend the possession of nauseating material. The Government are not with me on this issue; so be it. The warning shot has been fired, and we may have to return to the matter at a later date.
I beg to ask leave to withdraw the amendment.