§ 7.50 p.m.
§ Report received.
§ Clause 1 [Indecent photographs of children]:1058
§ Lord HOUGHTON of SOWERBY moved Amendment No 1:
§ Page 1, line 17, leave out subsection (2).
§ The noble Lord said: My Lords, when the Committee stage of this Bill was before your Lordships' House, I was in America looking, among other things, for that load of child pornography that, we were told, would swamp this country if we did not have this Bill to stop it. From the many inquiries that I made, it appears that some people here have a very exaggerated notion of the wickedness of the United States. Many of those to whom I spoke were incredulous that people here should believe some of the stories that seem to come across the Atlantic without foundation, but which stir up a feeling of emotion and fear which together account for this Bill.
I am moving this Amendment to delete subsection (2) of Clause 1. That subsection reads:
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".
What does the word "distribution" mean? I suggest that it is worth while looking it up in a dictionary, because, in my submission, the interpretation of the word "distribution" in this subsection is an affront to the use of the English language.
§ In a certain context, "distribution" can mean dividing for dispersal a number of portions of a commodity; or, in this context, the action of spreading abroad or dispersing to or over every part of a space or area. That, I think, comes closer to what we are talking about; that you distribute something, you cast it abroad and you spread it over an area. Usually, when you distribute something, you give it to more than one person. But this subsection proposes to make the handing of a photograph to another person "distribution" within the meaning of this clause. I think that that is quite wrong.
§ I have here in my possession some photographs which were the subject of a criminal conviction under the common law of Scotland. The Scottish common law is, presumably, adequate for Scotland and this is perhaps the main reason for excluding Scotland from the provisions of this Bill. In Scotland, the test is whether a photograph is lewd or libidinous and it 1059 may be, for all I know, that that description would amount to indecency in this country under the terms of this Bill. I cannot, of course, be sure, because nobody really knows until a case goes to court what will be regarded as an indecent photograph. All I am saying is that these photographs have been the subject of a conviction, and therefore one could work on a reasonable presumption that photographs, which were the subject of a conviction in Scotland might possibly—even probably—be regarded as indecent in this country.
§ I have been handing these photographs to some of my friends, to ask whether they think that they are indecent. I presume that if this Bill becomes law, and this subsection stays in the Bill, I can be open to prosecution for distributing these photographs. So that you cannot even offer them to a person whom you trust, for him to offer an opinion. I really do not think that the Promoters of this Bill know what they are doing. They do not know what they are saving up for some innocent people. I have been wondering whether to make myself the first guinea-pig under this Bill, if it becomes law, and to distribute something and see what happens.
§ I come to other parts of the Bill which relate to what kind of defence I could put forward, if charged with possessing or distributing an indecent photograph. But what I am suggesting in proposing to delete subsection (2) is to leave it to the courts to decide, in the normal use of the English language, what is "distribution" and what is not. I think that the reason why it is proposed to construe the word "distribution" as meaning handing to any other person is that the Promoters of the Bill are fairly sure that no court would construe that word to mean the same. It is to restrict the power of discretion of the courts to interpret the English language and to decide, in the light of all the circumstances, whether or not something amounts to distribution.
§ In my opinion, this subsection—and this applies to many other parts of the Bill—is full of the possibility of blackmail and corruption. Pornography in this country has corrupted far more policemen than it has children or adults. The corruption of the protection racket has been a scandal in London for years, and we have seen the prosecutions that have taken place in the 1060 last 12 months among the Porn Squad. Then we have that unspeakable chief constable of the Greater Manchester area, who puts out information about the proportion of child pornography in the raids which have been conducted by his Porn Squad officers, which he could not sustain when asked by the Minister of State to produce the evidence. That is all on the record of the debate on the Second Reading of this Bill in another place.
§ This Bill is surrounded by unhealthy attitudes and by vicious determination that, come what may, some evils in society must be put down, even though they create greater ones in the process. I feel, with all my strength and heart, that this is a bad Bill. I said during the Second Reading that Parliament has been subjected to a campaign of hysteria, emotion and pressure unexampled in my experience of nearly 30 years in Parliament.
§ During the course of the Second Reading debate—this is on the record, too—I showed your Lordships a cutting from the Catholic Herald which said: Women, your child is in danger. Bombard your MP. Don't write to him; don't approach him. Bombard your MP". And bombarded they have been. I regret to say that in my opinion this Bill was conceived in hysteria and came to a Parliament which was smitten by a degree of political cowardice.
§ What I regret is that Members of both Houses who have criticised this Bill as a nonsense and as a danger have not got up to say so. I was the only noble Lord during the Second Reading debate who expressed himself to be forcibly and implacably against this Bill. I do so again. When one reads the speech of the Minister of State in another place during the Second Reading of the Bill there and the speech of my noble friend the Minister of State at the Home Office during the Second Reading debate here, one wonders how on earth this Bill comes before either House of Parliament as a rational instrument for dealing with this small problem.
§ I hope that I can get some support for taking some of the nonsense out of the Bill. When lawyer friends of mine looked at the original Bill they said, "This Bill is a nonsense". The Bill is, of course, very different from its original state; it has been almost rewritten; certainly it has 1061 been substantially amended. But it is still a nonsense and, what is more, people in authority know it to be a nonsense. I want to take out of the Bill some of those things which, in my opinion, will be a disgrace to Parliament if they are left in. This is one of them.
§ Therefore I hope that this subsection can come out of the Bill so that the courts may be left to decide what is "distribution", within the usual construction of the word, having regard to the circumstances of any particular case. I do not think that that is an unreasonable thing to do, unless Parliament decides that it will tie people up in such a way that there is no escape.
§ Amendments to the Bill have been put down to leave out the proposal contained in the Bill that an accused person might enter a defence of legitimate reason for possessing a photograph. They want to take that out, or to confine it to showing that the photograph was not taken or possessed for the purpose of gain. Therefore this clause, and my Amendment of it, is related to other parts of the Bill which, taken together, constitute a form of tyranny and take us, in my judgment, one step nearer to a police State.
§ I shall come to this point later when I deal with who shall give a warrant for search and other matters relating to the conduct of searches: the right of entry—by force, if necessary—and the scrambling together of anything that the police like to lay their hands on. "Ah", but the Bill says, "with reasonable cause". Oh, yes; and off it goes. And if the stuff is not returned voluntarily to you by them, then you will have to go to the court to get it back. All this is part and parcel of the fabric of this Bill.
I shall conclude my speech on this Amendment with something that I read while I was in the United States. It appeared in The Times newspaper, and it excited a certain amount of interest in the United States. The Times newspaper of 30th May this year said:
Girl aged eight named on American sex list".
There was a long column containing a speech made by a certain Mr. Thomas Price at a meeting of the National Association of Head Teachers in Brighton.
He said that he was horrified to hear through a colleague that the name of a girl aged eight appeared on the list of a man arrested in Los Angeles for trafficking in porn. This girl lived in Manchester and was on the list as available for sexual activities. There was great consternation in Britain. A great whiff of hysteria spread across the land. The Americans could not believe it; and apparently nobody else believed it a few days afterwards, because a little paragraph appeared in The Times newspaper of 1st June—I was still in the United States when this happened—which said:
Greater Manchester police said last night that the identity of the seven year old Manchester schoolgirl whose name and address was said to have been on an American list of juveniles available for unlawful sexual activities had been traced".
With what result?
There is no evidence of the child's involvement in any illegal activity",
Name probably came to be on the list after her mother had answered an advertisement in a British magazine for American penfriends".
So that was the end of that, and nobody produced any evidence to the contrary after The Times newspaper published its second instalment on 1st June. This is the kind of thing which is preventing the rational consideration of a Bill which involves some of the first principles of British jurisprudence, the behaviour of the police and the right of the citizen to protection from coercion, blackmail, harassment and other features of our system which, when imposed upon individuals, not only can be absolutely unjust but can cause a great deal of misery and humiliation.
§ That is by way of introduction to a number of Amendments which stand in my name on the Marshalled List, and I am content to leave it there for the moment. The immediate question, however, is the deletion of subsection (2) from Clause 1. I beg to move.
§ 8.9 p.m.
§ Baroness FAITHFULL
My Lords, I wonder whether I might ask the noble Lord, Lord Houghton of Sowerby, one or two questions. First may I ask him whether he asked any Congressmen or members of the Senate when he was in the United States why they passed a Bill in February of this year as an Amendment to 1063 the Child Protection Bill in the United States? If this was not known to the people in the United States to whom the noble Lord spoke, may I ask him whether he spoke to Congressmen or to members of the Senate and asked them why they passed an amendment to the Child Protection Bill in the United States? Secondly, did the noble Lord contact the Odyssey Institute in New York which produced the figures and the statistics upon which the Bill, subsequently the Act, in the United States was passed? Thirdly, may I comment on the report of the Brighton meeting which the noble Lord mentioned. This has got nothing at all to do with the Bill. This Bill concerns the taking and passing round of photographs.
§ Lord SOMERS
My Lords, I sincerely hope that the House will not accept the noble Lord's Amendment. We all know of the zeal with which he seeks to protect animals from mistreatment. Apparently he does not hold the same feelings about children. He rather doubts whether this kind of activity, which this Bill seeks to prevent, actually goes on at all. I can only tell him that if he had really consulted those who know about such things he would have soon found that they do go on.
As to making us a police State, it is no more so than if he were to introduce and pass a Bill on hare coursing or some other such subject. Incidentally, I am not saying that I do not have a great deal of sympathy—your Lordships all know that I have—on that subject. But it is not my only subject. I think that children are even more important. I sincerely hope that your Lordships will not listen to him and take this as a kind of fancy Bill coming from someone's imagination, but will consider it as one based on absolute, solid fact which we can produce to anybody who wants to see it.
§ 8.12 p.m.
§ Baroness GAITSKELL
My Lords, I have great sympathy with my noble friend Lord Houghton of Sowerby. I think that I shall support his Amendment. There is no comparison, I think. I am not a great expert on child pornography in this country. I dislike this Bill because it is based on the word "indecency", which seems to me a completely non-legal word—a ridiculous word. If I may say so, when Lady Faithfull showed me some of the pictures which she had that she thought 1064 were indecent, they were not very attractive. No, but they did not shock me. I do not think that anyone who has reached my age and lived a long life, and knows a little bit about life, will be shocked very much.
I wish only to add this. There is one thing I should like to say about this Bill in mitigation. It is possible that this Bill may frighten some of the pornographers or make them think again, and might stop the explicit pornography that people apparently see in newspaper shops. My son-in-law, who is a probation officer and keeps an eye on these things, says that he has noticed a slight falling off; that there is not so much of this kind of material today—we must give Lady Faithfull her due on this—maybe because of this Bill and perhaps because other Bills may come along. Personally I have no use for any of it. It do not know a great deal about it. But there is no doubt that to compare the pornographic trade here with that in America is really unfair. The trade is much worse in America. It seems to me that the people in this Chamber are very thin-skinned. They do not know what is happening in the world. They do not know what is going on in the world, and they are very shocked if they find out some of the facts of life.
Lord DE CLIFFORD
My Lords, the noble Lord, Lord Houghton of Sowerby, takes objection to the word "distribute" and says that it is a difficult word to interpret. I may have a very simple mind, but I should have thought that the word "distribute", with its normal meaning, was quite clear. One distributes one's newspapers. One distributes pamphlets and leaflets. Personally I can find nothing wrong with the word "distribute". I am quite sure that if one asked the courts to interpret it they would do so in a very normal manner which most people would understand.
My Lords, may I add one point? I sympathise enormously with, and admire and envy the eloquence of, the noble Lord, Lord Houghton of Sowerby, in opposing what he believes to be a thoroughly bad Bill. I tried to do the same in the remote past in the opposite direction. I wish I could do it as well as he. As we are talking about this particular Amendment, 1065 I should like to underline what was said about the word "distribute". If on a rainy day I were distributing, or trying to distribute, a pamphlet attacking hare coursing, which I should be perfectly prepared to do, I do not think it would make much difference if I managed to distribute 60 copies or if I distributed only one, because nobody would take them. The fact is that the poison, if it were poison, or the good, if it were good, would have got in. Surely, on the law of libel, or publishing libels, that is the essence of the matter. If one sends it to someone else it may go on. If it is a bad thing, it is bad. If it is a good thing, it is good. I cannot see that any better word than "distribute" could be used in this particular paragraph. I am not a lawyer, but I should be very glad to know if there is a better word.
§ 8.16 p.m.
§ The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich)
My Lords, I shall, if I may, begin by agreeing with my noble friend Lord Houghton of Sowerby before coming to the point why we do not in fact recommend the House to accept this particular Amendment. The point on which I agree with my noble friend is this—the episode of the eight-year-old girl. I am bound to say, having looked at some of the Press cuttings, and then at a Press release issued by the Greater Manchester police, that I do think some very wild stuff appeared in the newspapers about this particular case. When the evidence was published it was quite clear that there was no truth in this particular story whatever.
I think it only right to refer to this particular Press release, because it was issued by the Force, by the Chief Constable of Greater Manchester, to whom my noble friend referred rather critically in his speech. There is no doubt that the Greater Manchester police, when this matter came to their attention—nd indeed it could hardly have failed to do so, given the size of the headlines in the newspapers—did carry out a most careful investigation. It is only right to recognise that, as I am sure my noble friend will agree. I shall quote what the Manchester police said in this public statement:Reports have recently appeared in the media about an eight-year-old girl, whose name was 1066 found on a list in the possession of a man arrested in Los Angeles, United States of America, for offences in connection with children. It was said that the circumstances were such as to suggest that the child might be available for unlawful sexual activities. The Greater Manchester Police have made enquiries and officers have interviewed the child and her mother. The mother is a respectable lady and her children are well cared for. There is no evidence whatsoever of the involvement of the child, who, in fact, is just approaching seven years of age, in any unlawful activity, sexual or otherwise".The statement goes on to make a number of other points. Nevertheless, as my noble friend raised that, and in particular as he has referred to the Chief Constable of Greater Manchester, I think it only right to record the fact that this matter was most carefully investigated by the police. That is part of the statement which they issued at the conclusion of their inquiries.
On that particular point, as I indicated, I agree with my noble friend that some of the stuff which was published at that time did not bear a great deal of examination, when the truth was eventually disclosed. However, I am bound to say that I do not in fact find myself in agreement with my noble friend so far as this particular Amendment is concerned. In speaking to it, I should first like to say something about the kinds of actions which this Bill is designed to penalise. The Bill as introduced in its initial form contained the concept of production, which was defined in terms of:sale, agreement for sale, letting on hire, exposing, offering for sale, advertising, causing to be seen, display and dissemination".The word "production" hardly seemed appropriate for these wider forms of dissemination and when, in Committee, the Government introduced a revised form of these provisions, we concluded that the general concept of "distribute" more closely described the kind of actions which the Bill was intended to cover, so long as it was defined in such a way as to embrace the same actions. There is nothing unusual about the law being framed to cover the kinds of act covered by subsection (2) of the Bill. The Obscene Publications Acts have a similar application, since the word "publish" is there defined in terms of circulating, giving and lending as well as selling and letting on hire. If we use the word "distribute" without giving the courts any clearer idea of what the Legislature meant to cover, the 1067 result may be a great deal of confusion about our intentions and the meaning of the Bill, and a great deal of wholly unnecessary litigation. Subsection (2) makes clear what "distribute" is to be taken as meaning and in our view is necessary to the Bill.
§ 8.22 p.m.
§ Lord REDESDALE
My Lords, I hope your Lordships will forgive me for coming in late and rising at this stage. Unfortunately I was detained elsewhere. I am afraid I slightly take issue in absence and therefore I ask to be forgiven for coming in late on the debate. I am sure that the noble Lord, Lord Houghton of Sowerby, believes most sincerely in what he says. I know that he is very much more interested in animals than he is in children, and I think it would be a pity if he were to use the case of the eight-year-old child and other matters to try to show that this Bill was not as worthwhile as it really is. I felt that the way the noble Lord, Lord Harris of Greenwich, covered the point showed that it is necessary to define this matter. The point was extremely well made and from these Benches we entirely support the noble Lord's view.
§ Lord HOUGHTON of SOWERBY
My Lords, I believe that I have the permission of the House to make a brief reply, if that is conventional. The noble Baroness, Lady Faithfull, asked me whether I had done three things in the United States—whether I knew about the first, and whether I had seen institutional people and others who might be able to give information from some point of central knowledge. The answer to those questions is that I went there to talk to people in order to see whether they thought that their children were in danger in the United States, and whether they feared that they were going to swamp this country with child pornography. That was what I went to investigate; and to ask whether they had ever seen any themselves, and whether they knew where it could be found. One found there, as I am sure one would find here, that talking to a wide range of people there was little or no information whatsoever about what is supposed to be this pending danger and the swamping of this country in pornography.
§ Lord WELLS-PESTELL
My Lords, will the noble Baroness give way? I am afraid that on Report stage one can only speak once, other than the mover. I am sorry, but as the Whip on duty I am required to see that Standing Orders are obeyed.
§ The Earl of LONGFORD
My Lords, may I intervene to ask whether that ruling is to be regarded as authoritative? I do not imagine that the noble Baroness was going to make a speech. Surely the noble Lord is not saying that she is not even allowed to ask a question or rise to put a point in regard to the Amendment? I would defer to the noble Lord in the ordinary way, but surely upon reflection he will feel that he has been too severe on the noble Baroness.
§ Lord WELLS-PESTELL
My Lords, my understanding of Standing Orders is quite clear. I am in the hands of your Lordships.
§ The Earl of LONGFORD
My Lords, I must reiterate the point. Looking round, I see one noble Lord who has been here very much longer than I have, but I have been here longer than most and I have never heard it ruled that a Member could not even rise to his feet and ask a question. I must emphasise the point that it is nothing to do with speaking again, and it would be a very strange precedent if that were laid down.
§ Lord GARDINER
My Lords, let us get the words of the Standing Order quite clear. If necessary we can appeal to the noble Viscount on the Woolsack to refresh our recollection, but the Standing Order is quite clear.
§ Lord WELLS-PESTELL
My Lords, I think it is probably my responsibility as the Whip on duty. It is laid down that on Report no Lord may speak more than once to an Amendment except the mover of the Amendment in reply.
§ The Earl of LONGFORD
My Lords, that does not answer my point at all. Everyone knows what is meant by "speaking": it means getting up and making a speech. It has never been intended to apply to the asking of a question. It is quite ludicrous, if I may say so.
§ Lord WELLS-PESTELL
My Lords, I think it would be equally ludicrous if a Member of your Lordships' House were to get up a dozen times on Report simply because he or she wanted to ask a question.
§ The Earl of KINNOULL
My Lords, could the noble Lord not accept that if my noble friend used the words "with the leave of the House" that would overcome this small point?
§ Lord HARRIS of GREENWICH
My Lords, clearly this matter will have to be gone into at some time in the future. I think it is within the recollection of the House that my noble friend Lord Hale is quite right that objections were taken when he intervened on a second occasion. Certainly now that my noble friend has raised this matter I think it is only appropriate that it should be gone into, and with my noble friend Lord Wells-Pestell I will arrange for that to be done.
Lord DE CLIFFORD
My Lords, I have been in your Lordships' House for some considerable time and there is a technicality which overcomes this difficulty. If the noble Baroness had waited until the noble Lord, Lord Houghton of Sowerby, had finished his speech, and then said: "Before the noble Lord sits down would he please …" she would then have been perfectly in order. I am not at all sure that she is at present.
§ Baroness FAITHFULL
My Lords, I think perhaps it is important that we get on with the main business of the Bill. Therefore I apologise to the House if I have contravened a Standing Order, and I will not speak again on this matter.
§ Lord HOUGHTON of SOWERBY
My Lords, I feel very embarrassed. I was in the middle of a brief reply on the 1070 Amendment. The Standing Order that has just been referred to puts me in order in that respect; but I must not trespass on the goodwill and patience of the House in these circumstances, so I will content myself by concluding with one further point. I was interested to read another piece in The Times which made a reply to the questions put by the noble Baroness when it said: "Britain said to be a big exporter" — exporter! — "of pornography"; and Commander Daphne Skillern, the head of Scotland Yard's Obscene Publications Squad, in making her first report after her appointment last year, referred to the likely export of quantities of pornography from this country. In regard to the imports of pornography she said that there was some very nasty stuff coming in from Europe, but it is interesting to note that throughout her report she did not once mention the United States of America. In my reference to the United States I was merely dealing with the threat which it was said was an imminent and a dangerous one, that we were going to have a lot of pornography from the United States; and I said that there was no evidence of it there and nobody gives any evidence of it here.
§ On Question, Amendment negatived.
§ [Amendment No. 2 not moved.]
§ 8.30 p.m.
§ Lord HOUGHTON of SOWERBY moved Amendment No. 3:
Page 1, line 22, at end insert—
("( ) Proceedings taken more than six weeks after a matter has been submitted to the Director of Public Prosecutions shall be ultra vires.").
§ The noble Lord said: My Lords, my Amendment requires the Director of Public Prosecutions to take proceedings, if he is going to, within six weeks of the matter being referred to him. Any proceedings taken after six weeks of the matter being submitted to the Director of Public Prosecutions would be ultra vires. That is my Amendment. Your Lordships may wonder why I want to hurry up the Director of Public Prosecutions. Many people not only seem to feel that the Director of Public Prosecutions is a great oracle, almost a Solomon, who sits in judgment on matters where doubts may exist as to whether or not proceedings may be taken, but also believe that he can 1071 deal with matters with reasonable dispatch. Experience shows that the Director of Public Prosecutions is as much subject to a load of work and pressure of cases as any other authority. He cannot determine the inflow of cases coming to his Department, and he is given only a limited number of staff and may be under the Government's guidelines, or indeed directions, as to expenditure on staff.
§ I do not want to make any criticism of the Director of Public Prosecutions in this debate, and will content myself by saying that anyone who served on the Royal Commission on Standards of Conduct in Public Life, where the Director of Public Prosecutions was closely concerned, was bound to be rather anxious as to the speed with which the Director of Public Prosecutions can dispose of cases. In many cases the matter will go to the Director of Public Prosecutions and he may take quite a long time to consider what should be done. Meantime, no action has been taken against the person to be charged and no publicity has been given to his position as a person under suspicion.
§ In these cases, however, usually preceded by a raid which is a matter of publicity within hours of being made, the police may go in, they have a warrant to search, they can make an arrest, the magistrate may remand a person without blame, and still leave the Director of Public Prosecutions to decide months ahead as to whether proceedings should be taken against him. Anyone with legal experience will know how this can happen. First, you are raided and stuff is removed; then consideration is given by the police or by magistrates as to whether a summons shall be issued to show cause why the material should be returned or be forfeited. Consideration may be given to whether a criminal charge shall be made.
§ All this takes time, and in the meantime any person in business as a bookseller, as a photographer, in commercial activities of one kind or another can be held in suspense. His business may be ruined, his shop may be cleared of stock, his camera may be seized, his films may go. Your Lordships have no idea what this can be like. It is all very well for the noble Lord on the Bench opposite to be smiling, but I wonder whether he realises what a traumatic experience this is for individuals 1072 who feel themselves to be innocent, and in many cases are.
§ I am saying that if the Director of Public Prosecutions is going to make a charge he should have a limited time in which to do it. Where conditions are such as I have described, as they are almost certain to be under this Bill, I do not think that is unreasonable. Make it eight weeks, if your Lordships wish, but I think that some limit of time should be included. We have put up with legal delays for far too long in this country. Our judicial system in some respects has become almost a scandal; for example, in the way in which people are remanded and not brought to trial for months on end and where in some cases no charge is made. I come later to who is going to give the warrant for a search, which is another important matter. I think we should put a limit on the time that the Director of Public Prosecutions should take to consider what he is going to do. I would accept any length of time which seems reasonable, but I do not think it is satisfactory to leave it absolutely open to the Director of Public Prosecutions to take weeks and months, and to my knowledge in some cases many months, before deciding whether to prosecute or not. That is not good enough especially, as I stressed earlier, as a great deal of publicity will have been given to the initial stages.
§ In this country now in a number of respects our Customs and Excise laws, our income tax laws, our obscenity laws, and this Bill if it becomes law, enables conviction in the public mind sometimes by being raided. It is long after the raid before anybody knows whether or not the person concerned has been guilty of any indictable offence. I think it is absolutely wrong that if people are going to be raided, if their shop or business is to be ruined by what the police may take away and which may be held for a long time and got back only by proceedings in court, when again the magistrate may order the retention by the police of the alleged offending material, the Director of Public Prosecutions may consider the matter for a long time and at the end of the day no charge may be made, or if a charge is made it is a long time after the initial suspicion of the guilt of the person. Therefore my proposal is to put a limit on the time in which the DPP can consider what he is going to do on a matter submitted to him under this Bill.1073
§ Viscount HANWORTH
My Lords, many of us think that the time it takes to bring the simplest case to trial is an absolute scandal. For example, even a case of exceeding the speed limit normally takes something like four months. Therefore I have some sympathy in principle with the Amendment moved. Nevertheless, I think many of us would feel less sympathy with people who are purveying pornography. One really feels that they might try to keep well within the law. I suggest that for those reasons this is certainly not the Bill to try to tighten up on the speed at which cases should be brought. There are far more important cases which the DPP should deal with more expeditiously, cases where one really feels that if a person has offended he might well ethically have kept further outside the law.
§ 8.40 p.m.
§ Lord HALE
My Lords, I am as anxious to get home as the noble Lord in front of me, but I must remind him that once the point is taken that no one can speak after him then if he rises immediately on the moving of the Amendment nobody can speak at all. I want to make two or three remarks. The first is this: I used to regard myself as avant garde in these matters, whatever the words may mean. I have never supported censorship in any form. I do not like it, and I know that historically it has nearly always worked in a very deplorable way, highly moral works being brought under censorship and so on. All this is present. Further, I agree entirely with my noble friend Lord Houghton in his speculations—I will not say criticisms—about the Director of Public Prosecutions, who occupies a position peculiarly anonymous in the State, who exercises increasing power, who handles an enormous number of cases, and handles them partly in conjunction with Board of Trade investigations of immense length, partly under the instructions of the Attorney General or under the advice of the Attorney General. If my noble friend wishes to raise a question about the powers of the Director of Public Prosecutions and to what extent this business has now become so extensive as to have a vast, and perhaps not always competent, staff, these are issues which I do not think arise directly on this Amendment.
1074 May I remind my noble friend that the clause which provided that a prosecution should not be brought except with the authority of the Director of Public Prosecutions was introduced as an answer, in his absence, to an almost violent speech he made on Second Reading. This was introduced to meet his objections. It was introduced in joint consultation by my noble friend on the Front Bench and the noble Baroness who moved the Bill, to provide an immense measure of protection, to provide that no proceedings would be brought without his authority. And it may be that in many cases the Director of Public Prosecutions would be able to say quite quickly "I am not going to give permission for this". It is extremely important that he may have an opportunity of considering the matter very carefully if he is thinking of giving authority; in those circumstances to meet the noble Lord's own objections, some circumspection and some thought is necessary.
I have been a solicitor for many years. I have seen a lot of pornography. While I was in Oldham I found out what was likely to happen to children who were the subject of minor indecent assaults very often. I studied the medical evidence which shows that children can be ruined and a child's future can be jeopardised. When we came to discuss the Wolfenden Report I spoke freely in favour of it. On the very last debate, when your Lordships refused to give a Second Reading to a modification introduced by the noble Earl, Lord Arran, in favour of a tiny bit more latitude, when your Lordships refused to give the Bill a Second Reading. I voted for the Second Reading. I do know of the suffering and the difficulty, and that there are genuine homosexuals, often men of some genius. But when we come to talk about paedophilia, when we come to talk about introducing a law to widen the liberty of indecency with children, then we may also think it right, at the behest of the Commons and providing what safety we can, to say that we are not going to encourage people who make a nefarious living by providing child pornography. And that it exists I have no doubt whatever, and that there is a good deal of it about. Of course, the worst is so expensive it is not available to most noble Lords, certainly not to me; if I wished to buy a sample to bring here I could not afford it.
1075 My Lords, my noble friend, for whom I have the greatest regard and for whose sincerity I have never had any question, is making slightly heavy weather of this. If he has read the report that has just been issued, the typewritten report on behalf of the Shepherds Market area, where a state of affairs is growing which leads to violence, which makes the work of the police almost impossible, then he is aware that we have to face the situation that indecent assaults on young children are growing, and that this literature is being distributed. I have seen some of it. If one really wanted to get something worse, one could easily get it. What has happened is that this House has provided safeguards in favour of the subject through a Bill which my noble friend said hastily passed the Commons, and I agree with him on that.
Finally, because I do not want to intervene again, perhaps he will permit me to add that this House has a peculiarly noble record on this matter. At the time of the so-called "Maiden Tribute of Modern Babylon" when the editor of the Pall Mall Gazette was being damned by all the Press, when evidence was forth-coming that young children were being exported to Belgium, partly for the use of his Royal Majesty there who was already known as having started to provide the conditions which do not help us now in Zaire, this House sent not once, but twice and three times—I think, four times—Bills to another place, where the comment was that so many of another place at that time were either engaged in this traffic or making use of the brothel facilities that it was difficult to get a Bill through on the matter, and impossible on a Friday. This House did keep on that path and did secure the passing ultimately of an admittedly compromise measure in favour of the defence of young children from indecency. I know I am swallowing words that I may have said before, but I am swallowing them in a situation in which I think some such action should be taken. It is because I make this my apologia pro sua vita that I have perhaps taken a little more time and a little more licence than I otherwise would.
§ 8.49 p.m.
§ Lord REDESDALE
My Lords, I should just like to say that the noble Lord, Lord Houghton, took exception to 1076 my smiling when he was talking about the effects that a prosecution might have on the business of someone who has been raided. I was smiling at the irony of the idea that such a tender flower as a pornographer would have a traumatic experience comparable to the experience of a child submitted to such treatment from a pornographer. That is why I was smiling.
Coming back to the point of the Amendment, I do not see why this Bill should be unique—I am sure that the Minister will confirm this—and impose a six-week limit on the Director of Public Prosecutions. I do not see why it should he unique in any way. I cannot see how the Amendment can stand.
§ Lord HARRIS of GREENWICH
My Lords, I should like to begin by directing a few comments to my noble friend Lord Hale and this I hope will be the last occasion when I have to refer to the Standing Orders of the House. No one is debarred from speaking here after the Minister has spoken. It simply means that I would not be able to speak on a second occasion. Given the fact that we have spent so much time discussing this matter this evening I can assure the House that I do not have the slightest intention of trying to do so.
I agreed with my noble friend Lord Houghton of Sowerby when he referred to very substantial pressure on our whole criminal justice system. There is certainly substantial pressure on the Director of Public Prosecutions and on the courts. As regards judicial delays, I am sure that if my noble and learned friend the Lord Chancellor was here and, if a former Lord Chancellor, my noble and learned friend Lord Gardiner was here, they would agree that they are very serious indeed. I do not think that any of us would seek to minimise the problem.
My noble friend will recall that we spent a great deal of time on this matter when we had the Criminal Law Act before us in the last Session of Parliament. Therefore, on the question of the fact that there are substantial delays experienced by defendants in the courts, I in no way under-estimate the problem.
However, I would say to my noble friend—and this takes up the point just made by the noble Lord, Lord Redesdale— 1077 that I find it a little difficult to see how we could possibly justify writing a provision of this kind into this particular Bill when, so far as I am aware, it applies in no other area of criminal law. I certainly understand the problem. However, what my noble friend wishes to secure is that prosecutions in this area alone are instituted within a period of six weeks of the case being submitted to the Director or not at all.
When a case is referred to him the Director, of course, has to decide whether the available evidence is sufficient on which to base a prosecution and to assess, on the basis of previous court decisions, whether the material involved is of a nature which a court is likely to find to be indecent. It may be that in some cases he would wish to obtain counsel's opinion before consenting to a prosecution being instituted. The Director's decision may of course often be forthcoming within a period of six weeks. But what of the case where the Director considers that further police inquiries are necessary before a proper decision can be reached as to the institution of a prosecution? He would have an intolerable choice. He would say, "If I am to ask for more police inquiries it will mean that I shall not eventually be able to act against this man, however strong the evidence may be". I think that that is a fairly extreme proposition which it would be extremely difficult to justify.
In short, my advice to the House must be that the imposition of a time limit of this character would be undesirable and would, in my view, be extremely arbitrary. Therefore, I very much hope that my noble friend will not press his Amendment.
§ Lord HOUGHTON of SOWERBY
My Lords, I cannot accept the argument of the noble Lord, Lord Somers, who said, in effect, "Why put a time limit on the action of the Director of Public Prosecutions when he has much more important things to do"? If the Director of Public Prosecutions has more important things to do why has he been given this to do? In any case, I think that when a Bill is before Parliament and the question of the dispatch of justice arises, there is no reason at all why we should not strike a 1078 blow for speeding up the process of our judicial system.
We pride ourselves in this country on being in favour of swift justice. We do not keep people languishing in prison for two, two and a half and three years before they are brought to trial. The basis of our system is: get the person before a court the next morning if possible and get the process of justice going without delay. I think that we are falling from that standard in the delays which we are now apparently prepared to tolerate in bringing people to trial.
I think this is an occasion when we should make a stand. After all, the poison that this Bill is intended to stop is supposed to be so virulent that it should be stopped with the utmost speed lest it should spread. When people are likely to be charged with spreading this poison it is not right that they should be kept in doubt as to their position. It is not right that others should be left in doubt as to what is an indecent photograph. After all, that must be decided. It is all very well for the noble Lord, Lord Redesdale, to say that he was smiling because the people who are subject to this kind of treatment are terrible, wicked people and they really cannot complain if they are raided, kept waiting and are subject to all the other trials which they may suffer. Of course, the noble Lord cannot assume that at all. He has no idea—if I may say so with respect—what will be the subject of a charge under this Bill. It may be that some quite astonishing prosecutions will be made and that some quite strange decisions will come from the DPP.
The DPP is not an institution but a body of lawyers and we must bear in mind that it is subject to all the human frailties of lawyers, including their capacity for thinking about some matters for a very long time before they can make up their minds. Anyway, I think that this is an Amendment which should be pressed to a Division and if the period of six weeks is too short it can be put right at a later stage. However, now is the time to make a stand for limiting the period for which people may languish not knowing whether they are to be charged.
§ On Question, Amendment negatived.1079
§ 9 p.m.
§ The Earl of LONGFORD moved Amendment No. 4:
Page 2, leave out lines 3 to 5 and insert—
("(a) that he distributed or showed the photographs or (as the case may be) had them in his possession solely in the course of justice; or").
§ The noble Earl said: My Lords, we are all as one in trying to protect our children from being exploited and degraded as instruments of child pornography; at least, I hope that we are all at one. One or two doubts crept into my mind during some of the earlier speeches, but I think that that must be accepted as a general position. Whether or not my Amendment is carried, as I see it the Bill will be of real service for the purpose mentioned.
§ However, I submit to the House that as it now stands the Bill contains a provision which will seriously diminish the protection of our children in order to cope with a quite imaginary danger, and I repeat the words "quite imaginary danger". That is the essence of the few remarks that I shall offer. I refer to the provision which enables a defendant to argue that he has an undefined legitimate reason for distributing or showing child pornography.
§ I am glad that we are making it illegal for anyone to produce child pornography. The noble Lord, Lord Harris of Greenwich, was, I am glad to say, very firm on that last time, but in practice whether or not child pornography is produced depends on whether there is a market for it. In the Bill, we are setting out to eliminate the possibility of such a market.
§ This Bill starts with that objective, but there is this reference to legitimacy as a possible defence. I want to say a few words about the danger of that and then address some remarks to the question whether it is in any way necessary. No one who is not idiotic can say for certain—he may prophesy—what the effect of any clause in an obscenity Bill of any kind is likely to be as the years pass. The obscenity in the 1959 Act had all sorts of consequences which were certainly not intended when it was drafted.1080
§ However, with the history of the Obscene Publications Act in front of us (I hope that noble Lords will listen to this and that the noble Baroness, Lady Gaitskell, will listen to this point because she has such a very strong feeling about all this that I want to appeal to her in the name of reason) who can be sure that as time goes on clever counsel will not be able to produce adventurous psychiatrists who will argue in court that child pornography—I mean the pornography which involves the exploitation of children—is necessary for the mental health of their patients? I doubt whether anyone raised that sort of danger when the 1959 Act was introduced, but it has been used very effectively in front of juries; the judges may not care for it very much, but it has been an effective defence. If this phrase "legitimacy" comes in, it might well be argued that someone who needs "kiddie porn", or whatever we like to call it, must be allowed to have it. Although to possess it would not, as I understand, be an offence under the Bill, to show it is. If you have parties where you and people of similar tendencies enjoy this "kiddie porn", I should have thought that we would assume that to be an offence under the Bill; but it might not be an offence if counsel and the psychiatrists were sufficiently astute a combination. The danger, therefore, is that one will weaken the effectiveness of the Bill.
§ I think that one has to ask oneself what kind of people will actually want to distribute or show this child pornography. From listening to the eloquence of the noble Lord, Lord Houghton of Sowerby, one would not realise that we are talking about child pornography. His speech would equally well have applied to pornography in general. But here we are talking about the kind of pornography that actually involves the exploitation and degradation of children. But what type of people will show and distribute this? In the first place there will be a very large sector who will want to make money out of it. That surely we are all against; we are all condemning them. We are not saying that to make a living out of selling this would be a legitimate defence. So I suppose that that, at any rate on paper, is ruled out.1081
§ The next category are those who just enjoy it, those who get a kick out of it. In a sense, they would create the main market, because without such people no one would have anyone to whom to sell the stuff. There, again, I should have thought that we were determined to prevent people enjoying pornography in that way—certainly together in the community, so far as it lies in our power. Therefore, I do not think that we need be, so to speak, concerned with any defence of these people.
§ There are those who are involved in the supression of pornography—the forces of law and order in the broadest sense. The police and members of the legal profession were selected by the noble Lord, Lord Harris of Greenwich, last time as people who needed protection. In my Amendment I have included a special proviso which would protect those involved, those who distribute pornography in the course of justice. I do not personally think that they are in the slightest danger. I cannot imagine any Director of Public Prosecutions—even if he is no greater genuis that the noble Lord, Lord Houghton of Sowerby, supposes—literally permitting the launching of a prosecution against the police or lawyers who were concerned in the suppression of pornography. That is to me a totally unreal danger. But to be conciliatory and show my respect for the forces of law and order I have included a provision to protect them.
§ What is the remaining category? I suppose you could say it is the people concerned with the investigation of child pornography and possibly with the publication of it in the course of their studies. I suppose I have been more concerned—for good or for ill—with the investigation of pornography generally than any other Member of this House, although other noble Lords were associated with me in an inquiry. I am well aware of a certain moral difficulty that arises when you wish to bring home to the general public the horrors of pornography of any kind, because if you publish examples of the pornography you yourself can be accused of pandering to that very taste, and that is a problem. Many people would be much 1082 more hostile to pornography if they could see what it was like, but in many cases it is just to disgusting to publish.
§ When we were doing our report a few years ago, for example, the noble Lord, Lord Fletcher, objected to our being so explicit as we were. He found difficulty in signing the report on those grounds. But we did not publish any pictures, and no extreme language. In fact we were fairly reticent. Judging by my own experience, when it comes to the point I do not think there is the slightest danger of being prosecuted. It never crossed our minds that we would be. In this case you might say that the Bill is slightly tighter than the existing obscenity Act. On the other hand, there is a protection here which did not exist before; the protection of the Director of Public Prosecutions. Although it is just conceivable that without that protection pornographers themselves might set out to prosecute people who tried to suppress pornography, with that protection there is no danger at all. My honest view is that there is no danger whatsoever, but out of my respect for the forces of law and order and the noble Lord, Lord Harris of Greenwich, who cares for them, I would move the Amendment in my name.
§ Baroness GAITSKELL
My Lords, may I say a word to my noble friend, not so much about his Amendment but about his attitude generally to pornography, and particularly to child pornography. What I want to make clear in my mind is what we are talking about. Are we talking about the gain from distributing and photographing pornography, or are we talking about the way adults sometimes play about, and perhaps go further than that, with children?
I should like to be clear about that. Certainly psychiatrists have said, and I believe that it is prevalent, that many children have had slight contact with adults. If you think about and picture an old man with a pretty little girl on his knee, do you know where we draw the line? Is that pornography? Is he interfering with the child? Really, we can go too far on this. I am not with my noble friend at all.
§ 9.12 p.m.
§ Lord SCARMAN
My Lords, I should like to address myself to the Amendment being proposed and to eschew for a moment the wider implications of the Bill. There are two safeguards for the defendant in this Bill. I would submit to your Lordships that both are valuable and one of them is indispensable. The first valuable safeguard is that proceedings for an offence shall not be instituted except by or with the consent of the Director of Public Prosecutions.
If the noble Lord will allow me to say so, I listened with amazement when I heard an opponent of this Bill saying that the Director of Public Prosecutions must make up his mind within six weeks of the offence being committed.
§ Lord HOUGHTON of SOWERBY
My Lords, I think my Amendment said within six weeks of the matter being submitted to him.
§ Lord SCARMAN
Very well, my Lords, I accept the correction. But I would warn noble Lords that when one puts a time limit upon a prosecuting authority there are real dangers to the liberty of the subject who may be prosecuted. To force the Director to rush into a decision within six weeks of a matter being referred to him might be to induce, as I think the noble Lord suggested, that he takes the quick and easy action, which is to authorise prosecution and let the court deal with it, instead of saying, No. That is the first safeguard that is in the Bill.
The second safeguard (I think the noble Earl, Lord Longford, is too apprehensive about this) is that in regard to certain charges—those under Clause 1(1)(b) and (c)—the defence is provided of a legitimate reason for distributing or showing photographs. It is not possible within the limits of justice to confine this defence to a distributing or showing for the purposes of or in the course of justice. There are many other legitimate reasons why people may have in their possession, and may 1084 wish to show to others, photographs which are indecent.
There is the purely academic reason, a very sound one; the subject must be studied and studied impartially and studied on the basis of the material available. There is the domestic reason; a parent may wish to consult a doctor or psychiatrist or he may wish to consult friends about certain photographs that have come into the possession of his child. That parent—and I may say, "Thank Heaven"—will not, I hope, be considering putting into motion the grinding wheels of justice; he will be seeking merely to get advice and help on a problem affecting his child or even a friend's child. Why should he be at risk if all he is doing is acting, in the face of material that has come into his hands, for the benefit and protection of the child?
§ The Earl of LONGFORD
My Lords, is the noble and learned Lord referring to photographs that would ordinarily be held to be indecent? If they would not be held to be indecent, the parent would not be at any risk.
§ Lord SCARMAN
Of course I am referring to indecent photographs, my Lords, and that is implicit in the argument. I am saying that parents may from time to time find themselves in possession—they may have them thrust upon them—of indecent photographs and want to show them to others for the purposes of seeking medical, psychiatric or just friendly advice.
Of course, if these matters come to the attention of the Director of Public Prosecutions there will be no prosecution. I agree with Lord Longford on that, but we all know that there is many a slip in the administrative process that a prosecuting authority goes through before deciding to prosecute, and he may not know all the facts. Is it really acceptable to your Lordships' House that a person in the domestic situation I have described should not have a defence, even though it slipped the attention of the Director of Public Prosecutions or indeed was not even brought to his attention? One could go on enumerating situations in which a person might find himself morally bound, having come into possession of 1085 indecent material of this sort, to show it to somebody else, though not for the purposes of prosecution or in the course of justice. I suggest that it would be wholly contrary to our jurisprudence to disallow a defence to such persons.
I follow Lord Longford's point that "legitimate reason" is very broad language. I go further: it is language which is incapable of legal definition or precision. But so is much of the English language, and as we are discussing English law I regret to tell your Lordships that the law must be written in English and one must accept the limitations on the English language. One of its glories is its flexibility, and the price it pays for that glory is a certain imprecision which makes Frenchmen laugh but which may cause Englishment to be thankful. Why thankful? Because, as Lord Reid once said in a judicial context, ordinary English words and phrases, when they appear in a Statute—though of course their final interpretation must remain a matter of law—are nevertheless questions of fact on which juries and others entrusted with judicial functions in our criminal process can reach a sensible opinion.
Do not forget, my Lords, the common sense of the criminal law. As Aristotle told us, it is impossible to define the good. Equally, it is impossible, in the context of the Bill, to define indecent. Again, I refer to the worth of Lord Reid, who said—and logically it is circuitous—that indecency is what decent men and women think is indecent. Of course, this does not stand up against the Oxford or Cambridge logician. It just happens to be not philosophy or logic, but common sense.
Therefore, my Lords, do not be dissuaded from granting the "legitimate reason" defence in the Bill. Do not be forced into opposition to the Bill because it deals in indefinables, such as indecency. The answer is that in the end these matters rest upon the good sense of the community, and that good sense has to be channelled through criminal judges when they are exercising jurisdiction, and through juries under their direction. It would be extraordinarily pusillanimous for your Lordships' House to accede to any of these philosophically acceptable, but in terms 1086 of common sense unacceptable Amendments.
§ 9.22 p.m.
§ Lord HARRIS of GREENWICH
I wish to speak in moderately brief terms on the Amendment, and I believe that my cause has been considerably strengthened by the substantial speech by the noble and learned Lord, Lord Scarman, to which we have just had the pleasure of listening. The noble and learned Lord raised a point on the question of the necessity of some form of appropriate defence. When the original Bill was published it made allowance for the use of material of the kind we have been talking about this evening in the course of justice or for scientific or learned study. The latter part of that provision was highly relevant to what the noble and learned Lord said in his speech. My noble friend's Amendment would confine the exemption to us esolely in the course of justice".I made it clear at the Committee stage that we considered that the original defence was in some respects inadquate and, as a result, proposed a defence in more general terms; and what I said then applies with even greater force to the even narrower defence now put forward by my noble friend Lord Longford.
It is true that the course of justice is probably the most important circumstance for which we must allow the lawful use of child pornography. Clearly, we must avoid the situation where those involved in court proceedings under the Bill—whether they be the police producing evidence on which charges are based, solicitors, counsel, or even the judge and jury handling the exhibits—are, even in theory, guilty of an offence, which would be a total absurdity. Therefore it is crucial to have some form of defence, and it is the character of that defence that we are now considering.
Were it not for the defence provision, the offence would of course be absolute. We must recognise that legal proceedings are not the only context in which the use of this material might be justified. The noble and learned Lord, Lord Scarman, touched on a number of examples in this respect, and I should like to give some others. If a member of the public comes 1087 into possession of indecent photographs of children and wishes to draw them to the attention of the police, we should be able to assure him that he will not commit an offence by doing so. It would raise very substantial problems were he to be denied a defence in those terms. He has found them, and he is taking them to the police. Of course, he would have a protection so far as "a legitimate reason" is concerned; but it would seem to me to be going a very substantial distance indeed were we to say that that person commits an offence—and that, of course, we would do if this Amendment were to be carried.
The police, too—and my noble friend very kindly referred to a point which I made in Committee when we discussed this matter—in accepting delivery of such photographs and in instituting an investigation, would probably not be using them "solely in the course of justice", to use the words of my noble friend's Amendment—a phrase which seems clearly linked to the judicial proceedings which may or may not follow at a later stage in the police investigation. Similarly, "the course of justice" would not be apposite to cover what happens after the conclusion of legal proceedings, when no doubt the police would wish to retain samples of the photographs for record and reference purposes.
My noble friend's answer to that would be, "There is nothing to worry about; the Director of Public Prosecutions will take care of that". I believe there are dangers in this argument. As I tried to point out during the Committee stage on the Bill, it is in my view absolutely vital that the police should carry out what they believe to be the criminal law of this country, and not involve themselves in action which they believe to be unlawful on the assumption that the Director will not agree to prosecute. I do not believe it is possible to proceed on that basis. In my view it would be a serious matter were we to say that police officers must do things which they know to be unlawful solely on the assumption that the Director of Public Prosecutions will not agree to proceedings. I am bound to say to the House that, were we to pass this Amendment, I believe the police would be put in precisely that position.
There are those with a more general interest in the law, too, who also, in my 1088 judgment, require some form of protection. If I may speak in self-interested terms, the Home Office, with its responsibility for advising Ministers about the effectiveness of the law, will wish to continue to collect samples to monitor the way in which the law is working. That is a duty, it seems to me, on the Home Office. It does seem to me—indeed, not only does it seem to me; it it quite clear—that they would be caught were this Amendment to be carried.
There are others, too, with a less official but no less genuine interest in the efficacy of the law. My noble friend Lord Longford in fact gave a good example of this in terms of his own activities when we was concerned with publicising the problems, as he saw them, of pornography. Let us take one obvious example. The noble Baroness, Lady Faithfull, wishes, in 12 months' time, to ascertain how the legislation she has helped to promote is working, and sets out to obtain samples of what may still be on the market. I am sure it would be wrong to suggest that she should be under any form of criminal liability. She undoubtedly would be under such criminal liability were this Amendment to be carried, and I find it very hard to believe that anybody in this House would regard that as sensible. It seems to me perfectly reasonable that the noble Baroness should try to find out whether the law is in fact working properly. She would have a defence—of course she would—with the words "legitimate reason".
My Lords, for these reasons—and I could obviously give a number of other examples of this character—it seems to me that an Amendment of the kind proposed by my noble friend Lord Longford would have a number of totally unintended effects which would, in my view, do great damage to public confidence in the criminal law. I do not believe we should put on the Statute Book a provision of this character, which could, in my view, cause the law to be brought into ridicule.
§ The Earl of LONGFORD
My Lords, to quote something that Sir Winston Churchill once said, "I do not feel utterly extinguished" by the arguments of the noble Lord, or of the noble and learned Lord, Lord Scarman, either. The 1089 noble and learned Lord, Lord Scarman, has one of the most acute, logical brains in the country so that it is ironic and amusing of him to point his hand generally in my direction and refer to me as an objective logician and he a plain man, a good common-sense fellow. All this stuff about common sense, which always gets applause for whoever is first in the field, whatever the dialecticians may say, seems to be very far from common sense here. What is this common sense in their case? It is, frankly, raising some absurd chimeras, the idea that people are going to be prosecuted, that Lady Faithfull might be prosecuted, for something. Nobody really supposes or could imagine that any of the cases raised by the noble Lord are going to lead to prosecution, let alone successful prosecution. To me, anything less like common sense than those hypotheses I cannot imagine.
The noble Lord brought in a point which rather surprised me. He said that this might slip past the Director of Public Prosecutions or even that his attention might not be drawn to it. I daresay that the poor Director himself will not see all the cases; but he has a strong team of lawyers. It is inconceivable. I cannot understand it. It cannot be common sense to suggest that a prosecution, although it is laid down that it can only be launched with the permission of the Director, somehow gets launched without the permission of the Director. Do not let us suppose that common sense is going to prevail if my Amendment does not succeed this evening. In all the circumstances, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 9.32 p.m.
Lord ROBERTSON of OAKRIDGE moved Amendment No. 5:
Page 2, line 8, at end insert ("Provided that a defence under paragraph (a) of this subsection shall not be available to a person who distributed or showed the photographs or had them in his possession with a view to gain.").
§ The noble Lord said: My Lords, I must first apologise to the House for the short notice in respect of this Amendment. It seems to me we have reached a dilemma, 1090 perhaps a dilemma that some noble Lords may not agree exists. But I believe we have reached a dilemma where, on the one hand, there is the danger that the defence of legitimate reason may make the defence too wide and lead to frustration of the intention of the Bill and, on the other hand, as we have heard, there are the difficulties in specifying or identifying those who should have a defence.
§ The aim of my Amendment is to try a new approach, to identify in one key area those who should not have the defence of legitimate reason. I would say, in passing, in case there is any misunderstanding, that where there is no question of financial gain then the question of defence would be as strong and as weak as it already is in the Bill. The Amendment seeks to provide that the defence of legitimate reason should not apply where the distribution, showing or possession of photographs was made with a view to financial gain. It seeks to make it easier for the law to deal with the heart of the problem; namely, the commercial exploitation of children.
§ Just to give one example, I believe that it would inhibit the sale of magazines showing indecent photographs of children using as justification medical or social grounds which could be held to be at variance with the intention of the Bill but grounds which might otherwise, without this Amendment, be used successfully by a competent barrister as a defence, especially if he could call on sympathetic VIPs or expert witnesses. One aim I do not have is further to burden the Director of Public Prosecutions. I believe that the role that we have given him in this Bill is already on the large side and I think it would be wrong of us to alter the Bill in any way that were to create a significant amount of anomalies which would only have to be filtered out by his office. Otherwise, we would have undesirable prosecutions.
§ The question therefore is: Would this Amendment give rise to anomalies which would require extra work by the DPP and cause distress and unnecessary worry of the sort to which the noble Lord, Lord Houghton of Sowerby, has quite rightly drawn attention? The evidence that I can think of does not convince me that it 1091 would. I look forward very much to hearing from the Minister and will pay considerable attention to his advice. I therefore beg to move the Amendment standing in my name and the names of other noble Lords.
§ Lord SOMERS
My Lords, I too should like to start by apologising to your Lordships if I have to leave the House very soon after I have spoken, otherwise I shall have to spend the night in Old Palace Yard, which would not be very pleasant. The reason of course is that we were all expecting this stage of the Bill to begin about 7 o'clock this evening; but, owing to unforeseen arrangements, it did not.
This Amendment is a necessary one. In spite of the doubts expressed by some, there is a large section of the community who exploit pornography and child pornography for financial gain. Although some may consider that pornography is a greater evil or a lesser evil and not feel that too much attention should be given to it, I do not think there can be anybody in their senses who would argue that exploiting children for pornography, for the sake of financial gain, is anything but a criminal activity. What this proviso does is simply, as my noble friend has said, to make things easier for a magistrate, or whoever the accused comes before, to make a decision. If the case is proved there are no further deliberations, the person on trial is guilty. I sincerely hope that that being the case, your Lordships will accept this Amendment.
§ 9.37 p.m.
My Lords, I should like to say a very few words in support of this Amendment, partly to explain why I did not intervene in Lord Longford's Amendment. I will confine my remarks to two subjects. The first one is the use of words. As the noble and learned Lord, Lord Scarman, pointed out, a great deal in this Bill depends upon the interpretation in the courts of the word "legitimate". There was a slight difference of opinion between him and my noble friend Lord Wigoder the other night as to which was the best formula. I think that "legitimate" (which I believe is an unknown word in law at the moment) is a better word. I think it clarifies my 1092 mind if I try to think what it means. Many people seem to think that it is the same as "legal ". We know that there are things which are both legal and legitimate. For a Member of this House to speak once on Report is legal and legitimate, however tiresome. We know things which are not legal and are not legitimate, which would be to try to blow up the House with a bomb.
The whole point of this Bill is to ty to draw a line between harsh legality. For instance, I believe in Cromwell's time it was illegal to eat mince pies. To many of us now that would be legitimate. On the other hand, it was legal to nail an old woman to a tree by her ears. What we are trying to do here is make reasonably clear when it is legitimate and therefore, in this Bill, legal to circulate photographs which may be thought to be indecent at some future period. We cannot tell what will be thought indecent at any particular period, and I sympathise very much with the noble Earl, Lord Longford, who points out how quickly some of these climates of opinion change. We all know, I think, the couplet by Sir John Harington:Treason doth never prosper: what's the reason?For if it prosper, none dare call it treason".I suppose on this subject one might make a similar point that pornographers cannot profit from photography because if they profit it is not pornography. That is something which can only be decided later on by courts as to what is proper and what is not. It seems to me that the point which was made by the noble Lord, Lord Robertson, to limit in one small field the word "legitimate", is a good one, and the right way to do it is be reference to financial gain.
I do not want to take your Lordships back into history and this is the last thing I shall say; but there was a Bill a good many years ago now against which I felt as strongly as the noble Lord, Lord Houghton, feels against this one. That was the Abortion Bill. I felt that what were called foetuses or embryos were having a hard deal in that they were not treated as animals, vegetables or minerals and had no rights at all. The last Amendment produced before the Bill went through its final stages was unsuccessful. I took the trouble to write it down and it was along these lines: 1093A registered medical practitioner should be guilty of an offence if he performs, assists or advises on the termination of a pregnancy under this Act in consideration of the receipt of a fee in excess of £100 or such sum as may be decided by the Minister later on".That was, of course, refused. At any rate it did not pass; and it was said of me by a noble Lord that the only reason for which I could possibly have introduced it was that I was so illogically opposed to the Bill that I wanted to make an absurd restriction on money.
Ten years later there is still considerable argument about how many fortunes have been made from abortions, and there might be the same kind of thing again if we did not plug this leak, however small it is now, in the way that has been suggested by saying that, whether or not I have obscene photographs and am trading them for art's sake, for the sake of my family and that sort of thing, is for the courts to decide; but if I am showing them in order to make money out of them, that is prima facie evidence that I am a pornographer of the kind that I think everyone who supports this Bill wants to prosecute. My Lords, that is all I have to say, but I just wanted to support this Amendment.
§ Baroness GAITSKELL
My Lords, may I add one sentence to this discussion. The noble Lord, Lord Somers, said, I think, that a large portion of the population was engaged in child pornography. I challenge that. I do not believe it for one moment.
§ Lord HOUGHTON of SOWERBY
My Lords, I really think that some noble Lords are losing their senses of justice. I always thought this House was the last bastion in the defence of the liberty of the subject. Yet it is now proposed to whittle down to almost nothing the right of an accused person to have a defence. Moreover, I think that this Amendment implies lack of confidence in the normal course of justice; that is, the discretion of a judge or, in certain circumstances, of a jury. If there is to be a legitimate reason for holding or distributing an alleged indecent photograph, then let it be a legitimate reason and do not circumscribe it in the way that this Amendment proposes to do, because the next thing we 1094 shall have to do is to define what is "gain" If it is payment of expenses or reimbursement of costs, is that gain? Is the receipt of any money for the distribution, or for the transfer of a photograph, gain? We enter into another realm of possible disputation.
We ought, if we are to allow a legitimate reason as a defence, to leave it at that; and, surely, we can have enough confidence in the courts to interpret that, as the noble and learned Lord, Lord Scarman, said, in a common-sense way. Otherwise, we are at risk of becoming a House of obsession about this question of sex and pornography, and all matters associated with it. There are a great many more evils in the world to be obsessional about, and in this country to be obsessional about. Let us preserve some sense of proportion, even on a subject of this kind, and let justice be done in the normal way on a reasonable interpretation of the words "legitimate reason".
§ 9.47 p.m.
§ Lord HARRIS of GREENWICH
My Lords, I would say at the outset, on behalf of the Government, that we certainly understand the view of the noble Lords who have put their names down to this Amendment, that we should not pass this measure in a form which lends itself to circumvention. I have already made clear that the Government do not regard the present defence provision as carrying the dangers which some people have perceived, but I will deal in a little more detail, if I may, with the merits of the additional restriction which has been put forward in this Amendment.
I acknowledge, at once, that there are attractions in seeking to distinguish between what is, or is not, permissible, according to whether gain is involved. It appears more than plausible, notwithstanding what my noble friend Lord Houghton has said. Indeed, we ourselves, looked at it at one time but we came to the conclusion, having considered the matter very carefully, that, with some reluctance, we should have to abandon it and I shall explain why.
I do not think it is too difficult to envisage circumstances where a person, who is required quite legitimately to handle material which offends the provisions of 1095 this Bill, does so for financial reward. This might be a case where the gain is linked fairly directly to the particular act of distributing or showing indecent photographs; or one where the use of the materials is, in perhaps a rather more general way, undertaken in the course of a person's earning his living. An example of the first category might be the film projectionist, who is paid a fee in respect of his showing an indecent film in connection with one of the legitimate categories of use—perhaps, indeed, in the course of legal proceedings.
Let me take an example. The film projectionist working for the police does it for financial gain. There is no doubt about it. He gets a fee for doing it. I am quite sure that it is not the intention of the noble Lords, who put their names down to this Amendment, that a person of that kind commits a criminal offence. The extent to which people in the second category run the risk of being deprived of the defence of legitimate reason, if the Amendment were to be approved, may vary according to the way in which they use the material and the way in which they are paid. The salaried police officer would probably be all right. He earns a salary. If, by chance, one is paid a fee, then a very different sitution indeed arises. The person concerned could well be committing a criminal offence.
What about the people involved in the preparation of a criminal defence? What of the solicitor? What of counsel? How are they paid? They are paid by fees. It seems to me that it would be a remarkable doctrine to say, "You are, in some sense, committing a criminal offence, but it's all right, chaps, because the Director of Public Prosecutions won't prosecute you if you happen to be a member of the legal profession". That seems to me to be a significant difficulty so far as this Amendment is concerned.
My Lords, the words are, "with a view to gain". I am not sure whether that makes any difference to the noble Lord's argument?
§ Lord HARRIS of GREENWICH
No, my Lords. With the greatest respect to the noble Viscount, I fear that it does not. As I have already said, we saw the attractions of this argument when we looked at the Bill with a view to making 1096 Amendments, and we went into the matter with some care. I am not producing arguments which have been dreamed up, as it were, on the back of an envelope during the course of this debate. When we came to discuss the question, these were serious problems which faced us in recommending a particular form of words to the House.
All I would say in conclusion is that I agree with the noble Viscount, Lord Barrington. I think that he was quoting my noble friend Lord Longford when he spoke about the climate of opinion changing very rapidly. If I may say so, I agree very strongly with him. However, what I fear is the climate of opinion changing very radically indeed if some ill-judged or, indeed, possibly even nonsensical prosecutions—or prosecutions which turn out to be nonsensical—are brought under the Bill. I do not believe that it will do the cause of those who have produced the Bill a great deal of good. They will be subjected to a great deal of ridicule, and so will Parliament itself. Therefore it is extremely important that we should look with great care at this form of words in order to make sure that we do not create something which will cause such very disagreeable consequences.
I do not want to spend time upon giving further and further examples, but again it would not be far-fetched to repeat the point that I made on the earlier Amendment: that if a Member of this House, trying to monitor this legislation, acquired the material and then wrote an article for payment—perfectly properly, in my view—drawing attention to the fact that the Bill either was or was not working, he would commit a criminal offence. It seems to me to be placing too much of a burden upon the Director of Public Prosecutions to put him in the situation of saying, "No, as it happens in that case to be a Member of the House of Commons or a Member of the House of Lords I shall not prosecute, because he is a Member of Parliament". It seems to me to be quite indefensible to put the Director of Public Prosecutions in such a situation.
In the course of presenting this argument I may have appeared to be wholly dismissive of this Amendment. However, I have tried to point out why the Home Office, for many of the reasons which were 1097 advanced by the noble and learned Lord, Lord Scarman, in his extremely powerful intervention, came reluctantly to the conclusion that although there were, apparently, significant advantages to be derived from a form of words similar to what is now before us, it would be a mistake to adopt it.
§ Lord ROBERTSON of OAKRIDGE
My Lords, I am very grateful to the noble Lords who have spoken in this debate on the Amendment and to the noble Lord the Minister for his reply. In the light of his advice, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.1099
§ Clause 2 [Evidence]:
§ 9.54 p.m.
§ Lord HARRIS of GREENWICH moved Amendment No. 6:
Page 3, leave out subsection (3) and insert—
(" (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.")
§ The noble Lord said: My Lords, I beg to move. This revised form of words is designed to meet criticism of this subsection made by the noble Lord, Lord Wigoder, during the Committee stage. The changes, except in one respect, are purely drafting, and the words in the Amendment manage to convey in a rather simpler fashion the same concept: that it is for the court to reach its own conclusion about whether a person is under the age of 16 in the light of whatever evidence is available, even if it is the evidence of a photograph alone.
§ There is therefore very little change in the effect of the subsection as we propose it should be amended. The one material difference is that the present subsection applies only in proceedings for an offence under Clause 1(1)(a), (b) or (c), and this raises the question of how the question of age is to be determined in proceedings for the forfeiture of indecent photographs of children under Clause 5(2) of the Bill. It seems right that the same rule should apply in any proceedings under the Bill, and the Amendment is therefore framed in these terms. I beg to move.
§ Clause 3 [Offences by corporations]:
§ Lord HARRIS of GREENWICH moved Amendment No. 7:
§ Page 3, line 23, leave out ("or") and insert ("of").
§ Clause 4 [Entry, search and seizure]:
Lord HOUGHTON of SOWERBY moved Amendment No. 8:
Page 3, line 25, leave out ("justice of the peace") and insert ("Circuit Judge of the High Court").
§ The noble Lord said: My Lords, the material Amendment here is Amendment 1100 No. 8. The succeeding Amendments are consequential, to the best of my ability, in carrying out the intention of my Amendment, which is simply to substitute the words "Circuit Judge of the High Court" for a magistrate who shall be authorised to issue a warrant for search and removal of offending material.
I draw attention to the fact that under Clause 4 of the Bill reference is made to a justice of the peace being satisfied,
… by information on oath, laid by or on behalf of the Director of Public Prosecutions or by a constable, that there is reasonable ground for suspecting that, in any premises in the petty sessions area for which he acts, there are indecent photographs of children
et cetera. This is a warrant for search which may be granted by a magistrate on information given on oath by a constable, alongside, in other circumstances, the Director of Public Prosecutions.
§ There is some contrast between what the Director of Public Prosecutions may lay before a magistrate on oath and what a constable may lay before a magistrate on oath. I say that without being disrespectful to constables. I think that we must he careful here of authorising a new area of search and entry on the warrant of a justice of the peace. I know that under the Exchange Control Act 1947 a magistrate may grant a warrant for search. I know that under various Customs and Excise Acts, including VAT, a magistrate may give a warrant for search. But when in 1976 the Government proposed that a similar provision should apply to the Inland Revenue Department, members of another place revolted against giving the power to issue a warrant for search to a justice of the peace. To meet opposition in another place the Government substituted, in the case of the Inland Revenue, a circuit judge. To that extent there is a difference in the authority which is needed to give a warrant for search in the case of the Inland Revenue by comparison with the Customs and Excise, and similar rights of search and entry. This seemed to suggest that in another place there was a desire to tighten up the conditions under which a warrant for search and forcible entry could he granted.
§ I do not wish to say anything against magistrates. When I was Chancellor of the Duchy of Lancaster I appointed a great many of them. I am not entirely 1101 certain that the basis upon which magistrates are appointed is satisfactory; that is another and wider question. However, it does not deepen my confidence in magistrates being authorised to give a warrant which is for the entry of the house, or private premises, or business premises of the citizen for the purposes specified.
I also draw attention to the fact that when the warrant to enter is granted under Clause 4 by a magistrate to a constable, then—and I now quote from subsection (3) of Clause 4:
Articles seized under the authority of the warrant, and not returned to the occupier of the premises, shall be brought before a justice of the peace acting for the same petty sessions area as the justice who issued the warrant
The point I am making here is that there is no time limit on the period that shall elapse between the seizure of the articles and bringing them before a justice of the peace if they are not returned to the occupier. Similarly one finds in Clause 5, which we shall come to shortly, the right of a magistrate to issue a summons to the accused person or to the occupier of the premises—because at that stage he is not accused—calling upon him to appear to show cause why the articles should not be forfeited. I mention this because of the important consequences of issuing a warrant for search. These things follow from the issue of the initial warrant, so that the moment the right of entry is granted then Clauses 4 and 5 come into operation, which can keep that occupier of premises waiting for a very long time. Therefore, I believe the granting of a search warrant is one of the most important acts in our system and I think henceforth it should be reserved to a higher granting authority than a justice of the peace.
§ That is my case and there is a precedent for this in regard to the granting of new powers to the Inland Revenue Department in 1976. The fact is that no power has since been granted to a justice of the peace to issue a warrant for entry since the Inland Revenue case of 1976, when it was a circuit judge, and that at the moment is where it rests. So far as I am aware in no subsequent Act of Parliament since 1976 has a justice of the peace been given a right to grant a warrant for entry. That is why I am relying on the precedent of the Inland Revenue case to ask that a circuit judge should operate under this 1102 Bill, and I sincerely hope that that case will appeal to noble Lords. I beg to move.
§ 10.3 p.m.
§ Lord HARRIS of GREENWICH
My Lords, my noble friend has raised a number of interesting questions in the course of his speech. He referred to the basis of the selection of magistrates and he indicated that he had some doubt whether the basis was a correct one. I am sure he will understand that, not wishing to cause any displeasure to my noble and learned friend the Lord Chancellor, who is responsible, I do not think I shall become involved in a debate about the merits of this particular question because, even though my noble and learned friend, as we all know, is an extremely agreeable man, I think that both he and my right honourable friend the Chancellor of the Duchy of Lancaster would not welcome the opinion of a mere Home Office Minister on the basis of their choice of magistrates. It is a matter about which there has been a great deal of debate in the past. It raises far wider issues than can possibly be dealt with in this Bill, and I think we must look at the narrower questions of what would be the consequences were we to make these particular Amendments to the Bill.
My noble friend Lord Houghton of Sowerby has made it absolutely clear that these Amendments would have the effect, of considerable consequence, of depriving magistrates of the power to issue warrants authorising the police to search premises in connection with a suspected offence under this Bill. These are powers which in many fields commonly belong to magistrates. In particular the drafting of Clauses Nos. 4 and 5 is closely modelled on the equivalent provisions of the Obscene Publications Act. It seems to me that it would be extremely difficult to say that magistrates can do this in the case of the Obscene Publications Act but not in the case of this particular measure.
I do not begin to understand how one could possibly meet a question of that character. I think in fact we require arguments of very substantial substance before taking the view in relation to this Bill that a warrant should be issued only by a circuit judge when a warrant to search the same premises for obscene publications would be issued by a justice 1103 of the peace. If there are reasons of doubt as to whether it is right to allow magistrates to issue search warrants—as seems to be the case from the Amendment moved by my noble friend Lord Houghton—whether they should do this or continue to do this in the area of obscenity and indecency at all are matters which would appear to me to be more appropriate to be discussed as part of the review of the law in this field which is currently being undertaken by the Williams Committee on Obscenity and Film Censorship.
In the meantime I do not believe that the case has been made out for this particular Amendment. I very much hope that, in the light of what I have said, and in particular in relation to the comparison which would inevitably be made with the powers obtaining in the Obscene Publications Act, my noble friend will decide not to press this Amendment.
§ On Question, Amendment negatived.
§ [Amendments Nos. 9, 10 and 11 not moved.]
§ Clause 5 [Forfeiture]:
§ 10.8 p.m.
Lord HOUGHTON of SOWERBY moved Amendment No. 12:
Page 4, line 6, after ("summons") insert ("not later than fourteen days afterwards").
§ The noble Lord said: My Lords, I apologise for being persistent in some of these matters, but I must remind the House that this Bill had no Committee stage and no Report stage in another place. I believe that there has been nothing more disgraceful in Parliamentary procedure than the way in which this Bill was put through and left another place. These matters would have been dealt with in a Committee upstairs and could have been gone over carefully in ample time, without the appearance of pressure or of individual Members occupying too much time on the Committee stage. But here we are with a Bill which came to us in this unconsidered condition. Your Lordships will remember the row in another place over this Bill when a Member, Mr. Mikardo, raised the word "Object" when it was proposed that this Bill should pass through its Committee stage without amendment and without debate.1104
All the Government Amendments had been withdrawn, so the Bill left another place in its naked condition with everything in the Bill regarding punishments, except capital punishment, and with proposals which would have extinguished completely the rights of any citizen. I am trying to speed up the process of justice. One of the arguments already used against me is that if you cannot speed up the process of justice generally you cannot speed up the process of justice particularly in relation to this Bill, that proceedings under this Bill must take their place alongside other matters engaging the attention of the prosecuting authorities and the courts. But just consider what is involved when once the warrant for entry has been granted: any constable holding the warrant can enter the premises within 14 days afterwards, by force if necessary, and can remove all articles. I am quoting from Clause 4(2):
… any articles which he believes (with reasonable cause) …".
Whether that is ever tested in the courts I do not know. I have never heard of a constable who broadens the sweep of his search and confiscation being hauled over the coals for not having reasonable cause. He can take them away, he can clear the shop, he can confiscate the cameras, he can stop a person from continuing in business or trade. And then the articles seized "shall be brought before a justice of the peace" at any time if they are not returned to the occupier of the premises. The police can hang on to them for weeks after weeks; nobody can compel them to do anything with them.
§ If they are not returned then they have to bring the matter before a magistrate, who, under Clause 5(1) "may issue a summons to the occupier of the premises to appear on a day specified", et cetera. When all the processes have been gone through—the search, the removal of articles, the custody of those articles by the police, the non-return of the articles to the occupier of the premises, the submission of the articles to a magistrate—and when the magistrate receives the submission of the articles, Clause 5(1) provides that he may issue a summons for the occupier of the premises to appear. What I am saying is that he should do that within 14 days from having had the matter brought to his attention by the police authorities.1105
§ We have heard from the noble and learned Lord, Lord Scarman, how lawyers must not make rushed decisions for fear of putting in peril the liberty of the subject; they must consider, they must ponder over, what they are going to do. But most people in this field presume to know almost at a glance what is indecent, they are so certain about it. Most people do not need to take photographs home and pore over them through the night to decide whether they are indecent or not. In most cases they will reach a speedy judgment about that.
§ I see no reason at all why a magistrate need have an indefinite time before he issues a summons to the occupier of the premises to appear to show cause why the articles should not be forfeited. It is the occupier of the premises who has to show cause, not the magistrate, not the police. Surely, when all the processes have been gone through and the magistrate has got the articles, within a fortnight he ought to be able to issue the summons for the occupier of the premises to appear. Is this unreasonable? What is the matter with them if they cannot reach these decisions? There are any number of magistrates. Any magistrate of the petty sessional area in which the goods have been seized can exercise this discretionary power under Clause 5(1).
§ My Lords, I am grieved that we are here at this hour of the night in this House trying to put this Bill into satisfactory order merely because it has been rushed forward under the impetus of emotion and propaganda, where rational feelings have gone out of the window, and we are not given adequate time at a reasonable hour to consider the implications of the Bill. It is an important Bill. Why then are we not giving much closer attention to it? Are we indifferent, or are we too old to consider the implications of what we are doing? Surely here we have a right—probably above all else in Parliament—to safeguard the liberty of the subject and to see that justice is done in a reasonable time. Am I being unreasonable about this?
§ What is the matter with me that my point of view has such little response in your Lordships' House? Have I got it all wrong, or are your Lordships so intent on dealing with this particular matter 1106 that you are willing to throw many other important considerations of liberty and of justice to the winds? I am not prepared to do that. When we consider that this Bill came to this House with the punishment of up to three years' imprisonment and a fine of £10,000 which was out of all proportion to other fines inflicted for much more serious crimes, I should have thought that we get an idea of how "crackers" some people have gone on this subject.
§ Therefore, I hope that we can introduce a small Amendment to ask a magistrate to decide on whether he issues a summons, when all the processes have been gone through up to him, within 14 days. That might give some people a little better chance of dealing with a situation which, in some cases, might involve innocent people. After all, one can never be sure what will be seized. Your Lordships have much more confidence in police seizure in this particular area than I have.
§ Prejudices are so strong in people's minds, including the police. I have here evidence of w hat police have said when they have been raiding premises. They have not observed the canons of impartiality of justice on those occasions. They have had a personal point of view and they have, quite improperly in my view, expressed it. It is the nature of the subject which is making for the great difficulty in getting a rational solution to some of the judicial problems that arise under the Bill. I beg to move.
§ Lord HARRIS of GREENWICH
My Lords, my noble friend Lord Houghton of Sowerby said that he might conceivably be accused of being rather persistent. I certainly make no such charge against him. As he pointed out, this Bill did not have a Committee stage in another place and it is perfectly reasonable that we should discuss this matter with some care, which he is ensuring that we do. So far as I am concerned there is certainly no complaint. I only wish that I was able to say that I recommend the House to accept the Amendment. However, I am afraid that I cannot do so for the reasons which I shall now endeavour to put forward.
First—and this inevitably harks back to the debate we had on another Amendment a few minutes ago—it is a most unusual course to impose this kind of 1107 time limit on the action to be taken by a justice of the peace. As a matter of principle, I think that it would be better for the Legislature not to seek to fetter the magistracy in that particular way. Certainly I should like to emphasise that I do not argue against the Amendment on the grounds of its impracticability, since it would impose a time limit that I do not believe would be necessary: in fact, the practical argument against the Amendment is that it is superfluous.
As your Lordships know, the procedure adopted in this clause is based on—indeed, it is exactly the same as—that in the Obscene Publications Acts. It is the common experience under those Acts that the police place seized material before a justice of the peace and that the justice decides there and then whether it is an appropriate case for the issue of a summons. Cases might arise where the justice needs time to study a large quantity of seized material or where arrangements have to be made for the viewing of films, and clearly there would be an obligation on him so far as that was concerned. However, for all practical purposes there does not appear to be a need for, or indeed any point in, a provision requiring this to be done within 14 days. That being so, I hope that my noble friend will not press the Amendment, because again it would be extremely difficult to put forward a coherent explanation as to why action under the Obscene Publications Acts would be handled in one particular way while action under this particular Bill would be dealt with in a different way. I cannot see any logic as far as Parliament is concerned in agreeing to such a change in our position. Therefore, I hope that, on reflection, my noble friend will agree not to press this Amendment.
§ On Question, Amendment negatived.
§ Lord HARRIS of GREENWICH moved Amendment No. 13:
§ Page 4, line 37, leave out ("4") and insert ("2").
§ The noble Lord said: My Lords, I beg to move. This Amendment merely corrects an error in the Bill.
§ Clause 6 [Punishments]:1108
§ 10.22 p.m.
Lord HOUGHTON of SOWERBY moved Amendment No. 14:
Page 5, line 10, leave out ("three") and insert ("two").
§ The noble Lord said: My Lords, this is the last of my Amendments tonight. In subsection (2) of Clause 6 I am seeking to replace three years by two years. My noble friend Lord Longford is not in his place at the moment, but he once wrote a book which had considerable influence on Mr. Wilson's first Government in 1964. It was entitled, Crime, a Challenge to us All. We based a Bill upon some of the recommendations of that book, the purpose being to try to keep people out of prison. Indeed, at the present time there is very considerable concern about the number of people being sent for custodial sentences, and what it does to them if they suffer a loss of liberty and all that goes with being in gaol.
§ Clause 6 provides a fairly wide discretion of financial penalty. I should have thought that that, which could be substantial, together with a period of not more than two years, adequately dealt with those who might transgress this law. Is that not enough? Cannot I even make a plea now for leniency to the extent of a period in prison shorter by 12 months than the Bill provides for? Why three years? What particular virtue is there in three years? After all, in many cases of this kind where conviction is made, the penalties outside prison will be far greater; there will be loss of business and reputation and probably the person will be made bankrupt. I wonder that there are any bookshops in Manchester, in view of the way they are being raided there. These are grievous things for those who are trying to make a living, even though they may be thought by some authorities to be getting very near to a breach of the law.
§ Therefore, I plead for two years instead of three, or a fine, or both as provided in Clause 6. I hope that at the end of the day my noble friend will make this small concession which I think is on the side of leniency. However, when we deal with prison sentences we must be careful that we are not doing far more harm than good by sending some people to prison. After all, the train robbers are out and doing pretty well out of being out, just as they did pretty well out of being in. I do not 1109 think that a society which makes heroes of its train robbers need make too heavy weather over punishing wretches who indulge in this particular form of activity. There are other ways of hitting them. That is by money penalties, especially as most of them will be in business for money. However, that is what I ask your Lordships to do. I beg to move.
§ Lord HARRIS of GREENWICH
My Lords, I would join with my noble friend in hoping that we can take any action that is appropriate to limit the size of the prison population, and therefore one starts off with some predisposition to favour the particular course of action which he has urged upon us. Nevertheless there are significant difficulties about what he has suggested and I should like briefly to deploy them. The first problem is that we must try to maintain some proper sense of balance so far as sentencing is concerned, so far as maximum sentences are concerned.
It is essential, when one is looking at a new piece of legislation, as we now are, to look at the penalties in comparable legislation. We have done that, and that is why the Bill is as drafted at the moment. The penalties provided in the Bill are based on those in the Obscene Publications Acts, so that a person convicted under the Bill of an offence of trading in child pornography will be liable to the same punishment as if he were convicted of offences of trading in obscene publications generally. On that basis a maximum of three years seems more appropriate than one of two years.
It seems to us inappropriate for persons dealing in the kind of child pornography which, although not obscene, is illegal under the Bill to be liable to lesser penalties than for dealing in other forms of pornography. For that reason, I doubt whether it would be the wish of the House to reduce the penalties at present provided. If subsequently, as a result of the deliberations of the Williams Committee or elsewhere, it is necessary to look at this whole question of penalties, that might be the time to do so. But for the moment it seems difficult to fix one level of penalties so far as the Obscene Publications Acts are concerned and a lower set of penalties for people dealing in child pornography.
§ On Question, Amendment negatived.
§ Clause 7 [Interpretation]:
Lord HARRIS of GREENWICH moved Amendment No. 15:
Page 5, line 30, leave out ("video-tape") and insert ("any form of video-recording").
§ The noble Lord said: My Lords, this Amendment seeks to remedy what may be an unnecessarily limited definition of "film in Clause 7(5) of the Bill. In our judgment it would be unfortunate if the reference to video-tape were held to exclude from the Bill other means by which what most of us in common speech would call films could be sold or shown. It is clearly right, for example, that the Bill should cover a video-recording made in disc form which may come to be more widely available than at present. The effect of this Amendment is therefore to widen the definition to cover all forms of video-recording. I beg to move.
Lord HARRIS of GREENWICH moved Amendment No. 16:
After Clause 7, insert the following new clause:
§ Similar provision for Northern Ireland
§ (" . An Order in Council under paragraph 1(1)(b) of Schedule 1 to the Northern Ireland Act 1974 (legislation for Northern Ireland in the interim period) which contains a statement that it operates only so as to make for Northern Ireland provision corresponding to this Act—
- (a) shall not be subject to paragraph 1(4) and (5) of that Schedule (affirmative resolution of both Houses of Parliament); but
- (b) shall be subject to annulment by a resolution of either House.").
§ The noble Lord said: My Lords, I beg to move. The Government intend that the law in Northern Ireland should provide equal protection for the children of Northern Ireland and should provide no less assistance to the police than does the law in England and Wales. This new clause accordingly provides the means of applying to Northern Ireland provisions which correspond closely to those in the Bill, and by doing so with the least possible delay. I think that this point was raised by the noble Baroness, Lady Elliot, during our last discussion of the Bill when she raised the question first of all in relation to the situation in Scotland, on which I think I managed to satisfy 1111 her, and secondly in relation to the situation in Northern Ireland, which is dealt with in this particular new clause.
§ It may be useful if I briefly outline just how legislation will be applied to Northern Ireland. As soon as possible after Royal Assent we shall bring forward an Order in Council containing provisions for Northern Ireland corresponding to those in this Bill. This Order in Council will be made under the Northern Ireland Act 1974, the usual means of enacting primary legislation for Northern Ireland during direct rule. However, rather than requiring the normal Affirmative Resolution procedure of both Houses, that Order in Council will, by virtue of the Protection of Children Bill, be subject only to annulment. There is no need for a further debate on the Order in Council since it can contain only provisions corresponding to those of this Bill, and those provisions will have been fully approved by Parliament during the Bill's Parliamentary passage.
§ Lord LYELL
My Lords, as the Minister referred to my noble friend Lady Elliot, and as she is not here to hear his remarks, I wish, on her behalf, to thank the noble Lord for the point he has covered. I will assure her that the point she made in Committee has been met and I am sure she will read in Hansard what the noble Lord has said.
§ Lord HOUGHTON of SOWERBY
My Lords, what is ruining the children of Northern Ireland is religious bigotry and civil war.
§ Clause 8 [Short title, extent and commencement]:
Lord HARRIS of GREENWICH moved Amendment No. 17:
Page 5, line 35, leave out ("or") and insert ("and except for that subsection, and subject also to section (Similar provision for Northern Ireland) shall not extend to").
§ The noble Lord said: My Lords, this Amendment is consequential on new Clause 7A which we have just inserted in the Bill. It simply amends the existing provision about territorial extent to take account of the new provision enabling the Bill to be extended to Northern Ireland.