§ 6 p.m.
§ Baroness FAITHFULL
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, that the House do now resolve itself into Committee.—(Baroness Faithfull.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.537
§ [The Baroness WOOTTON of ABINGER in the Chair.]
§ Clause 1 [Indecent photographs and films of children]:
The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich) moved Amendment No. 1:
Leave out Clause 1 and insert the following new clause—
§ Indecent photographs of children.
§ ("1.—(1) It is an offence for a person—
- (a) to take, or permit to be taken, any indecent photograph of a child (meaning in this Act a person under the age of 16); or
- (b) to distribute or show such indecent photographs; or
- (c) to have in his possession such indecent photographs, with a view to their being distributed or shown by himself or others; or
- (d) to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs, or intends to do so.
§ (2) For purposes of this Act, a person is to be regarded as distributing an indecent photograph if he parts with possession of it to, or exposes or offers it for acquisition by, another person.
§ (3) Proceedings for an offence under this Act shall not be instituted except by or with the consent of the Director of Public Prosecutions.
§ (4) Where a person is charged with an offence under subsection (1)(b) or (c), it shall be a defence for him to prove—
- (a) that he had a legitimate reason for distributing or showing the photographs or (as the case may be) having them in his possession; or
- (b) that he had not himself seen the photographs and did not know, nor had any cause to suspect, them to be indecent.
§ (6) Offences under this Act shall be included—
- (a) in the list of extradition crimes contained in Schedule 1 to the Extradition Act 1870; and
- (b) among the descriptions of offences set out in Schedule 1 to the Fugitive Offenders Act 1967;
(7) In paragraph 1 of the Schedule to the Visiting Forces Act 1952 (offences against the person in the case of which a member of a visiting force is in certain circumstances not liable to be tried by a United Kingdom court), after sub-paragraph (b)(viii) (inserted by the
Sexual Offences Act 1956) there shall be added—
(ix) section 1(1)(a) of the Protection of Children Act 1978".").
§ The noble Lord said: In moving the first Amendment in my name, and indeed that of the noble Baroness, Lady Faithfull, perhaps I may say a few words about the Government's proposals in relation to this Bill. As the Committee will recall, I dealt with this particular question during our Second Reading debate, when I indicated that the Government accepted the principle of the Bill and did not wish to alter its effect in any significant respect. But we think that the Bill can be improved and made more effective, and to this end we have tabled a series of Amendments which rewrite most of the provisions of the Bill, although very often the words used are virtually the same. We have had a whole series of meetings with the noble Baroness, Lady Faithfull, who introduced the Bill, and I am glad to say that as a result the Amendments which we have put before the Committee this afternoon are agreed between the Government and the noble Baroness. In fact that is why both our names appear on the Marshalled List. With that substantial measure of agreement about the objectives of the Bill and the means of securing them, I hope that these Amendments will meet with the approval of the Committee.
§ I should now like to turn to the first Amendment, new Clause 1 which, together with the new clause after Clause 1, replaces Clause 1 of the Bill and presents in slightly different fashion the central provisions of the Bill defining the actions which will amount to an offence and setting out certain supplementary provisions as to the prosecution and the trial of the offence. The basis of the offence remains a photograph or film which is indecent and which is of a person under the age of 16. Although the offences are otherwise expressed in different terms, they cover virtually the same ground as those in the Bill as published.
§ The clause also contains the requirement for the consent of the Director of Public Prosecutions and introduces a defence in more general terms than that of the original Bill. The clause reproduces the test of indecent as the means of deciding whether a photograph or film contravenes the law. Pending the conclusions of the Williams Committee on Obscenity and 539 Film Censorship, the Government are prepared to accept that it is a reasonable solution of the widespread desire to deal firmly with those who exploit children for pornographic purposes, that while the test of obscenity is retained for pornography generally, the threshold of criminality should be lowered to indecency where children are involved.
§ The offences in relation to indecent photographs or films of those under 16 will be of taking them or permitting them to he taken, distributing or showing them (whether or not for gain), possessing them with a view to distributing or showing them, and advertising them. In effect, these offences are practically identical with those in the Bill as published, but their terms more clearly express what they are aimed at. As in the Bill as published, the Government think it desirable, in view of the potential width of the offences and the differing views which may be taken of what is indecent, that a prosecution should be brought only with the consent of the Director of Public Prosecutions, and this is secured by subsection (3).
§ Again, it is necessary to allow for those kinds of distribution or showing, or of possession for such purposes, which are perfectly proper or which are genuinely inadvertent. The Bill as published sought to do this in Clause 4, but the Government were satisfied that the exemptions provided there were in some respects inadequate and subsection (4) of the new clause provides instead a general defence of legitimate reason. This is a matter which has given rise to a certain amount of discussion and some people have expressed misgivings that a defence in these terms might be liable to abuse. But I think that where they are faced with indecent photographs of children, the courts can be relied upon to take a sensible view of what is or is not legitimate, and I am glad that the noble Baroness now feels able to support this provision. The defence, I might add, applies only in respect of the offences of distributing or showing or of possession for such purposes: under the Bill as amended, there could never be a legitimate reason for the taking of an indecent photograph of a child. I beg to move.
§ The DEPUTY CHAIRMAN of COMMITTEES (Baroness Wootton of Abinger)
There follow a number of Amend- 540 ments to this Amendment which we will take before we revert to the original Amendment.
Lord WIGODER moved, as an Amendment to Amendment No. 1, Amendment No. 2:
Line 1, after ("person") insert ("without lawful authority or reasonable excuse, the proof whereof shall lie on him").
§ The noble Lord said: I have tabled altogether some six Amendments to the clause to be proposed by the noble Lord, Lord Harris of Greenwich, but I will indicate straight away that with one possible exception they are intended to be drafting Amendments. I ask nothing more than that the noble Lord and his advisers might look at them in due course and possibly comment upon them either now or at a later stage. I have no intention of pressing any of these Amendments at any time during the course of the proceedings on this Bill.
§ The other observation that I wish to make particularly to the noble Baroness, Lady Faithfull, is that, although I was not perhaps the most enthusiastic advocate of this Bill at Second Reading, I indicated then, as I do now, that I am entirely content that it should go on the Statute Book, and the only purpose of the Amendments which I desire to move is that it should go on the Statute Book in the most workable form possible.
§ In dealing with Amendment No. 2, I wish at the same time to speak to Amendment No. 6. The reason is that Amendment No. 6 seeks to remove the statutory defence in the new Clause 1 at Clause 1(4)(a). Amendment No. 2 seeks to replace it in a slightly different form and at a different place in the Bill. I have no intention whatever of seeking to remove the statutory defence altogether. If I may say so, I am a little surprised that the Daily Telegraph, for example, this morning should have sought to suggest that there should be no statutory defence in this Bill. As I read this Bill, without such a statutory defence the Lord Chief Justice would be committing a criminal offence if, during the course of a trial, he handed indecent photographs to the members of the jury for them to look at. It is therefore perfectly clear that some form of statutory defence is necessary.
Amendment No. 2, in fact, alters the statutory defence proposed by the
noble Lord, Lord Harris of Greenwich, in two respects. First, instead of using the words,
… that he had a legitimate reason",
I have ventured to suggest that there ought instead to be the words,
without lawful authority or reasonable excuse, the proof whereof shall lie on him".
In other words, leaving the burden of proof on the defendant, as it would he under the new proposed draft of the noble Lord, Lord Harris. The reasons for preferring the expression "lawful authority or reasonable excuse" to the expression "legitimate reason" is simply that the term "lawful authority or reasonable excuse" is well known to the law; it appears in a number of statutes, for example in the Offensive Weapons Act and various other Acts of Parliament. It is clearly understood, whereas, so far as I know, the defence that is suggested at the moment of a legitimate reason is a new departure in the criminal law.
§ If one looks in the dictionary, one finds that the word "legitimate" is open to a vast variety of quite different meanings. I am anxious that, in what I think will be the rather limited number of prosecutions that will be brought under this Bill, we should not invite every single defendant to go to the Court of Appeal and then perhaps to the Appellate Committee in order to argue the meaning of the term "legitimate reason" which has not been used on previous occasions. Therefore, I suggest that the term "lawful authority or reasonable excuse" might be preferable for that reason.
§ The second effect of these two Amendments is to transfer the defence from subsection (4) of the new Clause 1 right to the beginning. Under subsection (4) as it stands, the statutory defence is only made available, as your Lordships will see from lines 19 and 20, "Where a person is charged with an offence under subsection (1)(b) or (c)". I would suggest that it would be much more logical to make the statutory defence available not only in the case of subsections (1)(b) and (1)(c) hut in the case of subsections (1)(a) and (1)(d) as well.
§ The reason is simply that the new clause begins by saying that "It is an offence for a person" to take an indecent photograph of a child. It cannot be—though it 542 would be, without a statutory defence—that a police photographer, for example, who takes a close-up of a child's private parts in order that it may be used as evidence in an indecent assault case in the courts should find himself having apparently committed an offence with no sort of defence available to him. It cannot be that a photographer who takes a picture of a child suffering from some sort of venereal disease for a medical periodical should find he has committed an offence with no possibility of any defence. It cannot be—if I may take a rather more improbable set of circumstances, though the improbable does tend to happen in criminal cases—that if a person on the beach is happily photographing his wife in her bikini, and just as he presses the camera trigger some naked child happens to wander in front of the lens, with the result that what he gets is a photograph of a close-up of a child's private parts, he should then be found guilty of taking an indecent photograph without any sort of defence open to him.
§ The Earl of LONGFORD
May I ask the noble Lord whether he seriously suggests that in that case the person would be found guilty? We are not talking, after all, of nude photographs; we are talking of indecent photographs. Lady Faithfull quoted Lord Reid on the last occasion as saying that indecencyincludes anything which an ordinary, decent man or woman would find to be shocking, disgusting, and revolting".Taking that sort of test, the kind of pictures the noble Lord mentions could hardly be found by any jury in their senses to be indecent.
§ Lord WIGODER
I think it may well be that the jury would find the photograph to be not indecent, but I do not see why a person who in all common sense has not committed a criminal offence at all should be at risk of being charged, as he would be, because it would be a matter for the jury whether the photograph was indecent. There have been observations, as the noble Earl will remember of distinguished judges who have gone so far as to say that any photograph of the naked body is in itself indecent. I, therefore, suggest no more than this, that some form of statutory defence ought to be provided for the person who under subsection (1)(a) takes a photograph which might be regarded as indecent but does so in 543 circumstances which make it clear that no person could conceivably say as a matter of common sense that that person had committed an offence. I know, of course, that there is the provision that proceedings shall not be instituted except with the consent of the Director of Public Prosecutions, but again I do not think, as a matter of public policy, that it is right that people should be put in the position of finding that they have quite inadvertently and innocently committed criminal offences and should have to rely on the goodwill of the Director of Public Prosecutions in order to avoid prosecution. So much for (1)(a).
So far as Clause 1(1)(d) is concerned, for which at the moment no defence is available, again it seems that, without any form of defence, it does go a little bit far. It makes it an offence,to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes … indecent photographs, or intends to do so.Anybody can without very much difficulty get an indecent advertisement into the personal columns of The Times. It has happened over and over again. One uses certain words which are understood by certain people and which get past the little girl secretary who happens to be taking the advertisement at the other end of the telephone. Is it seriously to be said that not only the publisher of The Times—and that must, I think, include the editor and it must include the proprietor—but every newsagent who happens to sell a copy of The Times (I believe he would be publishing it, too, under these circumstances) should find himself open to prosecution without any form of defence open to him?
I assure noble Lords, and perhaps particularly the noble Earl because he ventured to intervene at an earlier stage, that I am not seeking in any sense unreasonably to extend defences. I am not seeking to create work for the criminal Bar; there is plenty of work available without any assistance in this regard. But I suggest that it is obviously possible that under (1)(a) and (1)(b) a wholly innocent person might find himself in grave jeopardy unless we provide some form of sensible defence which he can put forward in an appropriate case. I therefore beg to move.
§ Baroness FAITHFULL
I wonder whether the noble Lord, Lord Wigoder, will forgive me if I go back for a moment to the opening remarks of the noble Lord, Lord Harris. At this Committee stage of the Bill I hope your Lordships will appreciate the refreshing and not very usual experience of finding Amendments being tabled jointly in the names of the noble Lord, Lord Harris, the Minister for the Home Office on the Government Front Bench in this House, and of myself from the Conservative Back Benches. It is encouraging that these two sides of the House go hand over hand over this Bill.
As your Lordships know, the Government Amendments were not discussed in another place. Since the Second Reading in your Lordships' House on 5th May last there have been discussions between the Home Office advisers and myself and my legal adviser on the Government Amendments. These do not substantially, I would submit, alter the purposes or the principle of the Bill; rather they are a matter of presentation and drafting. I must confess that, in my view, there is no great difference between the Bill as originally presented and the Amendments listed in the name of the noble Lord, Lord Harris, and myself. However, in the interests of a safe, unhurried, but undelayed, Committee stage, agreement has been reached on the Amendments tabled by Lord Harris and myself. I would at this stage like to express my indebtedness to the Home Office officials who have helped me, and to the noble Lord, Lord Harris, for his co-operation.
May I now come on to the Amendment moved by the noble Lord, Lord Wigoder. We have had very real difficulties over the defence clause—subsection (4) of the proposed new clause. If the Amendment moved by the noble Lord, Lord Wigoder, were passed, subsection (4)(a) would fall. At first I favoured the Bill and the definition and formula used. In fact I think one might call it the shopping list formula where everything is detailed individually. I then came to think that, good as this was, the circumstances of life and living might change; there might be new inventions, and the words would then not apply. I then moved towards the formula, as has the noble Lord, Lord Wigoder, "without lawful authority or reasonable excuse", having read the 545 case of Regina v. Jura. It seemed to me that that was rather wide. I then moved on to another case, Wong Pooh Yin, on lawful excuse, and again that seemed rather wide. Then I asked myself whether the formula in the present Amendment was not, after all, the best one. I realise there is a very fine legal point here which some of us lay people may not fully understand. But in all the considerations we have had we have not been able to come up with an alternative. If your Lordships are not in favour of the clause's "legitimate" defence, it would be extremely interesting, either here or in another place, to hear what would be the alternative.
§ 6.20 p.m.
§ Lord SCARMAN
I would address my remarks solely to the Amendment proposed by the noble Lord, Lord Wigoder, which suggests that the words "without lawful authority or reasonable excuse" would be better as a statutory defence than the words "a legitimate reason". I wholly agree with the noble Lord that a statutory defence is necessary and I agree with the noble Baroness, Lady Faithfull, that it is really a legal, almost just a drafting, question as to whether one accedes to the suggestion put forward by the noble Lord, Lord Wigoder, or remains with the draft as proposed in the Government Amendment. The noble Lord, Lord Wigoder, is absolutely right when he says that the phrase "without lawful excuse or reasonable authority" has a certain familiarity to lawyers. The phrase "a legitimate reason" has a certain originality about it, and it is the originality about it which commends it to my mind.
The danger of using the phrase "without lawful authority or reasonable excuse" as the statutory defence in this Bill is to be found in the words "reasonable excuse". I would suggest, with respect, to the Committee that those words might be construed more widely than would be considered appropriate in a Bill with this object. They are also inappropriate. There will be parents and others who have no lawful authority—if that phrase means anything in that context—to have in their possession indecent photographs, and yet they do have a legitimate reason—one need not speculate what it is—for having them. Is it right that such a 546 parent should have to say by way of defence, "I have no lawful authority—I do not even know what those words mean—but I have an excuse and it is reasonable." The parent may say, "I have a legitimate reason for having that photograph of my child in my hands". Why should a parent be forced on to the defensive, talking about excuse, reasonable or otherwise? It is a dignified thing for such a person to say, "I have a legitimate reason".
I think basically that is why I would respectfully suggest to your Lordships' Committee that this new phrase carries with it two advantages. First, it is less wide than "reasonable excuse" and therefore confines the defence to the sort of cases in which I believe your Lordships' House would wish the defence to be available. Secondly, when it is available it is a highly respectable and dignified defence, the sort of defence one would wish to take if one had in one's possession for legitimate reasons an indecent photograph.
Do not be frightened of introducing new and original, but simple and understandable, language into our statute law. Welcome the opportunity. Get away from the old, hackneyed phrases and use a phrase which means something to ordinary people, and bear in mind that this phrase, "a legitimate reason" really embraces a question of fact on which courts and juries are well able to reach a sensible decision in determining the meaning. I therefore would suggest to the Committee that we stand by the Government clause as drafted in this respect. Upon the other Amendments, I think it inappropriate for me to make any comment.
§ Lord REDESDALE
I shall be very brief. Obviously, as was said on Second Reading, we support this Bill and support the Amendment as put down by the noble Lord. I would just say that there are a number of people who have made representations about their worries on the word "legitimate", mainly on the basis that with a really good barrister the word "legitimate" perhaps could be stretched. I know that the noble Lord covered this point, but perhaps in his reply to the points which have been raised he might also give consideration to the fact that "legitimate" could be construed 547 as going a little wide. However, as I hope this Bill will be passed by 1979—which happens to be the Year of the Child, rather appropriately—I think that all the defence should be there. In the original Bill where it was laid down, there was, as the noble Baroness, Lady Faithful], said, a shopping basket list of defences, and this perhaps seemed to the layman rather more neat and tidy than the rather wider sense of "legitimate". I look forward to hearing the noble Lord's views on this point.
§ The Earl of LONGFORD
I should like to express great concern about the proposed new Clause 1(4)(a). I am not dealing with a narrow legal point but with quite a broad point. Some of your Lordships may have read what Mrs. Whitehouse wrote in The Times this morning. After all, she has some standing in this matter because she and our organisation were the initiators of a campaign against child pornography. She would regard the inclusion of this word "legitimate" as seriously undermining the whole point of the Bill. Your Lordships may or may not agree with Mrs. Whitehouse, but, as I say, she has some standing in this matter and that is the considered view of those who come forward with her. Coming to it quite independently—and I do not take my orders from her though she is a very good friend of mine—I share that opinion. If one takes the arguments we have had today about the need for protecting people who distribute child pornography, one starts, after all, from the assumption that the photographs have done harm to the children. I am glad that the noble Lord, Lord Harris, said clearly that the production of child pornography could never be justified, so we can assume that this pornography has come into existence in some deplorable fashion.
In any case it seems that one could argue that there were legitimate reasons, but in anything we have heard yet—and we may have some more reasons spelt out—the only reason given is that those concerned with suppressing it might need to distribute it either in the courts or as police officers. The noble Lord, Lord Wigoder, was fair as always, though I thought he was rather more misguided than usual at a certain point. He was very fair in indicating what had not been said earlier and what I do 548 not think even Mrs. Whitehouse has brought out previously—that the Director of Public Prosecutions has to give permission for a prosecution to be launched. So the idea that these people are going to be put at risk, that there might be some slightly erratic judge who took the view that all nude photographs are indecent, is a completely unreal hypothesis.
Where the noble Lord, having brought out that point so well, seemed to depart for a few seconds from his own standard was in suggesting that we should now be dependent on what he called the goodwill of the Director of Public Prosecutions. Surely, we are not dependent on his goodwill—one might almost say his mercy—for the exercise of a reasonable amount of wisdom in the course of his duties. I think we can take it that any police or judges or any such people involved with the suppression of child pornography are never going to be prosecuted because permission is never going to be given by the Director of Public Prosecutions.
I am not seeking to divide the House this afternoon but unless this Bill can be improved in this respect, if I find any substantial body of opinion I shall divide the House on the next occasion. If anyone asks me whether I think there should be any statute of defence I would say that there might be cases where it is necessary but it has to be spelt out a great deal more clearly and cogently. The whole argument for the defence must be put in a much more sensible way than we have heard up till now.
§ Baroness ELLIOT of HARWOOD
On a previous occasion I said that I had no legal knowledge or experience. Therefore what I say represents the perfectly ordinary reaction of someone who believes very strongly that the Bill is extremely important and that it will stop a disgusting and revolting traffic in pornography which is extremely harmful to children.
Having said that, I wonder which of the two legal opinions to which we have listened with great interest is the strongest or the most powerful. I should like to be sure that the words contained in the Bill could not be misinterpreted in a way which we all know sometimes happens—a way by which someone indulging in this 549 horrible traffic would be able to get away with it on some legal grounds on the basis not so much of ordinary common sense, but of the interpretation of a word.
I am much impressed by the noble and learned Lord, Lord Scarman, who is a great authority on this subject and also by the noble Lord, Lord Wigoder, because they both want to do the same thing. They are not in any way opposed to each other but they have been discussing what is the most effective way of dealing with the situation. I agree with the noble Earl, Lord Longford, that if there is any feeling in anyone's mind that the word "legitimate" is not sufficiently strong and powerful then some other phrase should be used.
§ The Earl of LONGFORD
It is not that I fear that it will not be strong or powerful enough: I fear that it will be too strong and too powerful—indeed, unnecessarily and dangerously strong and powerful.
§ Baroness ELLIOT of HARWOOD
I agree with the noble Earl. I am sorry, it is my fault. I entirely agree with the noble Earl. I do not want to see any way in which any of these offending people can get away with it. However, our two judges seem to have different interpretations and from the point of view of the people who are backing the Bill we want the interpretation which will help to get these people convicted. That is what I should like to see.
§ Lord SCARMAN
The difference between "excuse" and "legitimate reason" is that an excuse can be put forward by a guilty mind. A "legitimate reason" means a legitimate reason—that is to say that someone has done something which is legitimate. Words as simple as "legitimate" are, as Lord Reid once said in this House, questions of fact which are perfectly well understood by judges and juries.
§ Baroness ELLIOT of HARWOOD
I feel reassured by what the noble and 550 learned Lord, Lord Scarman, has said and I am sure that the Committee will feel the same. I like to think that the matter will be further discussed and considered by the noble Lord, Lord Harris, when the Committee stage has finished. My own view is that I want the Bill made stronger and more powerful. If the noble and learned Lord, Lord Scarman, is right then I think that we should stick to his discipline. I should like to feel that the noble Lord, Lord Harris, would definitely consider the two points of view which have been put forward.
§ Lord HARRIS of GREENWICH
Before I deal with the actual words which would be changed if the Amendments moved by the noble Lord Lord Wigoder, were to be carried into effect, I should like to refer to the effect of moving the defence provision from subsection (4) of the new Clause I tabled in my name and that of the noble Baroness, Lady Faithfull, to subsection (1). Subsection (4) is framed so as to refer to offences under paragraphs (b) and (c) of subsection (1), which are those of distributing or showing indecent photographs of children or possessing them with a view to distribution or showing.
The defences do not apply to offences under paragraph (a); namely, those of taking indecent photographs, because we take the view that although there are legitimate reasons for handling indecent photographs—when they are in the possession of the law enforcement agencies, for instance—the same reasons cannot apply to the taking of indecent photographs. I think that there is a distinction to be drawn here. We consider that it would be wrong for Parliament to suggest, in framing this measure, that there are circumstances in which the use of children for the purposes of indecent photography could ever be a proper activity. The exclusion of offences under paragraph (d) from the new clause raises a less substantial issue, but we still consider that a defence of this kind would be inappropriate in relation to the publication of advertisements.
The widening of the defence to cover these other offences is, perhaps, the most important objection to the noble Lord's Amendment. This brings me to the second question to which we have devoted most of our attention in the Committee this 551 afternoon. I do not think that the substitution of "lawful authority or reasonable excuse" in place of "legitimate reason" raises considerations of the same substance as the ones which I was endeavouring to advance a few moments ago. It may well be that the courts would interpret the words in very much the same way. Nevertheless, I am bound to say that I suspect that the speech to which we have just listened from the noble and learned Lord, Lord Scarman, has had a fairly significant influence on the Committee. It is a difficult question of balance as to precisely what form the words should take. It is, I repeat, possible to argue that whichever form of words we adopt the result will not be all that much different. However, I think that on the balance of the argument it is right to stay where we are.
I repeat that it is a difficult question. I cannot pretend that we feel passionately opposed to every detail of this aspect of the noble Lord's Amendment, because we do not. Nevertheless, on balance we prefer the existing form of words, which brings me to the question of whether there should be a statutory defence at all. It would be very remarkable were we to decide that there should be no statutory defence. The noble Lord, Lord Wigoder, gave one example of the position of judges. What about the position of the police? What about the fact that the police may feel it appropriate, in certain circumstances, to keep certain photographs for training purposes? Those are substantial questions.
With great respect to my noble friend Lord Longford, one cannot deal with this problem by simply saying that the stop-gap of the Director of Public Prosecutions is there. Policemen cannot do things which they know to be unlawful. It is as simple as that. Therefore, I believe that there must be a clear and explicit statutory defence. Of course, there is a statutory defence in the Bill that we are now discussing. It is not as though we are saying that it is necessary to have one while the sponsors of the Bill are in fact resisting it. As we are all well aware, an exemption was provided in Clause 4(b) of the Bill for possession, display or dissemination,solely in the course of justice or of scientific or learned study.552 The problem with those particular words was that in some respects they appeared to go too wide, creating exactly the problem to which my noble friend Lord Longford addressed himself a few moments ago when he was discussing the terms of the Government Amendment. For those reasons, we came to the conclusion that it was desirable to tighten the matter up to some degree. That is, in fact, what we have done by the use of the words "legitimate reason".
§ The Earl of LONGFORD
As the noble Lord referred to me perhaps I could comment. I am not saying that the old wording was perfect; I certainly do not agree that the new words are very good. I believe that some fresh words have to be found, which have not yet been laid before the Committee, no doubt in time for the next stage.
§ Lord HARRIS of GREENWICH
I hope that I would not be so arrogant as to say that under no circumstances would we look at other forms of words. That would be an absurd proposition. Of course, if any form of words is put down, we shall examine it carefully. But with great respect to my noble friend Lord Longford, I do not believe it is an easy matter, as I am sure he would agree. One has to strike a delicate balance here. One cannot put those involved in the very difficult job of law enforcement at the very best into an extremely ambiguous position when they are carrying out their lawful duties. We cannot possibly put the police in such a situation. I could give many other examples.
I have spoken perhaps a little too long on this matter, but I repeat that at the moment we are certainly of the view—for the reasons which have been so very persuasively put before the Committee this afternoon by the noble and learned Lord, Lord Scarman—that the existing form of words is preferable to any alternative about which we have so far heard. Certainly if other forms of words are put before the Committee, we shall, of course examine them.
The Earl of HALSBURY
With the permission of the Committee may I say that I am a little uneasy at the way in which the argument advanced by the noble Lord, Lord Harris of Greenwich, 553 is developing because of his dichotomy of the defences as between paragraphs (a) and (d) of subsection (1), on the one hand, and paragraphs (b) and (c) on the other. I should like to illustrate this with something taken from medical science. For example, the editor of a journal in which the photograph of a syphilitic child's private parts were published would have two defences: first, that the photograph was not indecent and, alternatively, that he had a legitimate reason for distributing it: to wit, the advancement of medical education. That gives him two defences. However, the photographer who took the photograph has only one defence. To me that seems to be a rather unfortunate state of affairs. I ask the Minister to consider this point before the matter comes up again on Report.
§ Lord HARRIS of GREENWICH
With great respect to the noble Earl, Lord Halsbury, I take the point. This is a difficult matter, which I have in fact been considering this afternoon. At the moment we are not persuaded that it would be right to move in the direction that he suggests, but obviously we shall consider what he has said.
§ Lord SCARMAN
I should like to support what the noble Earl has just said and suggest that when the Government are considering his point in respect of paragraphs (a) and (d) they should bear in mind that there is a real difference between the (a) offence and the (d) offence; that it might be reasonable to provide a statutory defence, in whatever words are ultimately decided to be appropriate, to subsection (1)(a), without allowing any such defence to subsection (1)(d).
§ Lord SOMERS
Perhaps I may say a few words, although not much remains to be said. I listened very carefully to the argument of the noble Lord, Lord Wigoder. To accept his Amendments would seriously weaken the Bill. One must remember that if the words which he proposes are inserted, the people with whom we are dealing are not fools and will find some means of having a reasonable excuse for having their photographs. Only too often have we found it impossible to prosecute a person who we know perfectly well is guilty, simply 554 because of certain wording in the Act which concerns them. I think that this would greatly weaken the Bill.
We must also remember that we are inclined to be very frightened of the fact that unless the defence is there, one is likely to he prosecuted; but people do not carry out accusations of crimes of this sort unless there is some serious expectation that they are true. For instance, if I carry a photograph of my own child naked in my pocketbook, I do not expect someone suddenly to come rushing up to me saying, "Open your pocketbook. Let me see. Oh, you've got a photograph of a naked child. Let me have your name and address". That sort of thing does not happen. It is only if there is a serious supposition that one possesses something that is indecent that that situation arises. I think that it was the noble Earl, Lord Longford, who said that a naked child of itself is not indecent.
§ Lord WIGODER
Two separate issues have been raised. One is whether "without lawful authority or reasonable excuse" is or is not better wording than "legitimate reason". On that I have no very strong views. I have listened with great interest, particularly to what the noble and learned Lord, Lord Scarman, had to say. I slightly prefer a traditional formula; he slightly prefers a new one. If we adhere to the new formula of "legitimate reason", I shall have much pleasure in reminding the noble and learned Lord of his words after the first case has been heard in the Appellate Committee in which four of his colleagues and the noble and learned Lord will have delivered not entirely harmonious judgments as to the meaning of the expression.
Rather more important is the question whether a defence should be extended to subsection (1)(a) and (d). So far the noble Lord, Lord Harris of Greenwich, has not indicated that he proposes to offer any protection to the police photographer or the officer in charge of the case who asks the photographer to take the photograph. I am sure that he would not want to leave the police in the position in which, prima facie, they might be committing an offence. I also find some difficulty with paragraph (d) as to who exactly is the publisher of the newspaper which contains an advertisement. I am 555 sure that the noble Lord would be willing to look at these points in the light of the debate. In those circumstances, I beg leave to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
§ 6.47 p.m.
Lord WIGODER moved, as an Amendment to Amendment No. 1, Amendment No. 3:
Line 3, after ("person") insert ("who is or appears to be").
§ The noble Lord said: Amendment No. 3 goes with Amendment No. 8 and is, I hope a very much less controversial matter. As your Lordships will see, Amendment No. 8 seeks to leave out the five lines that appear just before Amendment No. 8 on the Marshalled List; and Amendment No. 3 seeks to replace them in a slightly different form. My objections to what is, in fact, subsection (3) of the new clause which is proposed in the five lines at the bottom of page 3 on the Marshalled List are really twofold.
They are simply that the wording is somewhat inelegant and unhelpful. They read:
On a charge of an offence … the defendant may be convicted without proof that a person photographed, or shown in a photograph, was under the age of 16 at any time, if it appears to the court from the evidence as a whole that he was then under that age.").
I venture to think that to put into an Act of Parliament the words:
the defendant may be convicted without proof
on the face of it is a little strange and may be liable to give rise to some misunderstanding, particularly when one is directing a jury that it is, of course, for the prosecution to prove its case in one way or another.
I should like to mention one very small point. In the same subsection the words,
a person photographed … was under the age of 16 at any time
strike me as being a little odd and as being an irrebutable presumption that all of us were at some time. I venture to suggest to the noble Lord two purely drafting alternatives. One is in the form of Amendment No. 3, and would simply go right back to the beginning of Clause 1, to the bracket in Clause 1(1)(a) where a child is defined as:
meaning in this Act a person under the age of 16".
I have suggested that it might be possible to achieve the same effect as the clause to which I am objecting by saying:
a child (meaning in this Act a person who is or appears to be under the age of 16)".
I hope that that would have the same effect, but it would do it in a form which if I may say so, is a little more elegant. One would then be able to direct a jury that it is sufficient, if it is proved to them that the child is under the age of 16 or appeared to be under the age of 16.
I should like to make another alternative suggestion, which is that if that does not meet the approval of the noble Lord and his advisers, the wording of Section 80 of the Criminal Justice Act 1948 should be followed, suitable adapted; and it should simply read then that:
the age at the material time of a person photographed shall be deemed to be that which appears to the court after considering any available evidence to have been his age".
That would then keep it in line with similar legislation that is already on the Statute Book, rather than to depart in the way that is at the moment proposed in subsection (3) of the new clause. In those circumstances, I beg to move this Amendment.
§ Lord HARRIS of GREENWICH
The noble Lord, Lord Wigoder, has moved this Amendment and spoken to Amendment No. 8; and they are, as he recognises, largely, though not exclusively, on drafting points. I should like to have a look at the particular proposals that he has made. If he would care to withdraw this Amendment I shall look at them both before the next stage of the Bill.
§ Amendment to the Amendment, by leave, withdrawn.
§ 6.51 p.m.
Lord WIGODER moved, as an Amendment to Amendment No. 1, Amendment No. 4:
Line 10, leave out ("likely to be understood as").
The noble Lord said: Amendment No. 4 is again a short point. In new
Clause 1(1)(d) at the moment there appear the words:
to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes …
and so forth. I wondered what the significance was of the words "likely to be understood as", and whether the subsection would read just as well if it was "to publish or cause to be published any advertisement conveying that …". If the words remain in, there is a yet further ingredient about which a jury have to be directed—namely, they have to be directed not only that it was published, not only that it conveyed, but that it was likely to be understood as conveying. This would give rise to all sorts of questions as to what is meant by "likely", who is to do the understanding, and so forth. It might be possible to miss out that stage without in any way affecting the substance of the subsection. I beg to move.
§ Lord MONSON
I should like to support this Amendment. It seems to me that the words "likely to be understood as" are far too sweeping and all-embracing particularly as there is to be no statutory defence so far as Clause 1 (1)(d) is concerned. It would cause great difficulty for newspapers who already have to spend quite enough time worrying about whether they ought to substitute the word "person" for "man" or "woman" in job advertisements, without having this further burden heaped on their shoulders.
§ Lord HARRIS of GREENWICH
The noble Lord's short intervention reminded me of many pleasant exchanges we had during the passage of the Sex Discrimination Act. I shall look at these points, if I may, between now and the next stage of the Bill.
§ Amendment to the Amendment, by leave, withdrawn.
§ 6.53 p.m.
§ Lord BEAUMONT of WHITLEY moved, as an Amendment to Amendment No. 1, Amendment No. 5:
§ Line 15, at end insert—
- (a) by reason only that one or more of the persons appearing in it is in a state of undress (whether complete or partial); or
- (b) unless it is proved or is to be inferred from the photograph or film that the making of the photograph or film caused or might reasonably be expected to have caused any child appearing therein physical harm or psychological or emotional disorder.").
§ The noble Lord said: The more one looks at this Bill, the more one sees that it is difficult to produce anything by Amendment, or indeed by leaving it as it is, which is highly satisfactory. We are taking an enormous hammer to crack what everyone who has spoken at Second Reading and who knows anything about sexual legislation admits is a very small nut. As a result, we are all led into a number of illogicalities. I am not casting any blame on the people who drew up this Bill, and particularly not the noble Baroness, Lady Faithfull, whose handling of it at Second Reading and now is beyond praise.
§ I am sure that the object of the Bill is right, and that it should be achieved, but for some reason, which it would take too long to go into now, I suspect that this is very unamenable to the processes of law. It is by its nature a very big hammer that we are using for the nut; on the other hand, in all sorts of ways the proponents of this Bill have, quite rightly, left out some things which would logically fit in with what they are trying to do.
§ For instance, a matter which I shall come to in a moment is that it will be illegal after this Bill to publish an indecent photograph of a child, but it will not be illegal to publish an indecent painting of a child, even if the child has had to go through the same processes of posing—and indeed probably for longer than for a photograph. I am not complaining about this, and I know what the proponents are trying to do. I understand and I sympathise with them. They are relying heavily on the DPP clause. I put it to your Lordships that if the DPP clause was not there, we should none of us let this Bill go through at all. It is only because it is there that we can.
§ I think we can rely on the DPP. I entirely agree with the noble Earl that we shall be able to rely on the DPP; nevertheless, as much as possible we should not put people into the position of breaking 559 the law and relying on the DPP not prosecuting. Law breaking, as such, is neither to be encouraged or made much more rampant in totally innocent cases by Acts of Parliament.
§ The whole area is a very complex one, as we know. Obscenity is a very difficult concept indeed. If there is one thing about which I should think almost everyone in this House is united, it is that the present law on obscenity is a muddle. There are people who want to change it in one way, and there are people who want to change it in other ways. People occasionally get up and say. "Well, one knows what is obscene; one can define it in certain ways". One cannot. May I take one narrow example before passing on to the main point, which is indecency, and that is the example of bestiality. You would think that it would be easy to say "Reproductions of bestiality are obscene", but it is not so. Probably 98 per cent. or 99 per cent. of reproductions of bestiality are obscene, but noble Lords, noble Baronesses, even right reverend Prelates, pass pictures of Leda and the Swan I should think once or twice a year without batting an eyelid and without a blush rising to the cheek. It is difficult to decide this matter.
§ When you get into indecency, it becomes even more difficult. We have the concept of indecency in the Post Office Act, and the Customs and Excise legislation. I do not think that we can say that the results of this legislation have been entirely satisfactory. We had the famous occasion of Sir Dingle Foot—a former and highly respected Solicitor-General of the British Government—buying a copy of the Kama Sutra at the bookstall at Heathrow Airport on his way out of the country, and having it confiscated by the Customs and Excise at Heathrow Airport when he returned. This is the kind of nonsense you can have when you bring indecency into the field.
The Concise Oxford Dictionary defines "indecent" among its definitions as "obscene and unbecoming"—and how wide a spread can you get in that? In the Oz trial, where Lord Parker gave some definition of "indecent", he said:
Indecent means unbecoming and immodest, and indecent is at the bottom end of the scale. If you are on the beach with your children and a woman takes off her clothes, that is indecent.
Lord Parker continued:
We just do not do that sort of thing in this country.
Well, there might be various arguments about that, but nevertheless one understands what he means. It was doing something which was not fitting at that particular point.
§ But, if that is an indecent act, then indeed a photograph of it is presumably an indecent photograph; and it is an indecent photograph with children on it, because Lord Parker said that it was a case where there were children on the beach. Presumably that comes within the purview of this Bill, which, I submit to your Lordships, is absurd.
§ However, it is not just that we are straying on to very difficult ground on the question of indecency; there is a step further about which I fear I must trespass on your Lordships' patience because it is at the heart of my Amendment. We are attempting to use a court definition of "indecency" to stop damage, psychological and otherwise, to children. That is admitted and that is the purpose of the Bill; it is not a Bill to extend censorship in any way. It is a Bill to protect children.
§ However, we are doing it by a judgment of what judges and juries think is indecent in the pictures they see, and there are pictures taken of children which undoubtedly may have done psychological harm and damage to them but which are in no sense of the word indecent; say, pictures of children in absurd situations, spread through their schools, could do harm to children. There are also pictures which may be thought to be indecent which probably do no psychological harm to the child at all. Thus, the main object of the Amendment is to try to narrow down the guilt to something which has actually caused or could be thought to have caused harm to the child.
§ I do not think that will be difficult to prove. If the noble Lords who are sponsoring the Bill have the evidence which they say they have—and I do not doubt that for one second—about psychological damage done to children taking part in poses of this nature, then it will be quite easy to show that certain kinds of picture, photograph or film are likely to cause psychological damage to the child.561
§ The second aspect with which the Amendment tries to deal is the area of artists—painting, depicting or photographing—and there is no real borderline here, as we all now know in the realms of art, but it is quite obvious in this case. Pubescent or pre-pubescent children are, in a way which they think, right for their art without doing the children much harm, it would seem to me. There are today in this country in a great many shops which sell postcard—I refer to the respectable ones and the highly respectable ones as well as the others—photographs by David Hamilton. As noble Lords no doubt know, David Hamiltion is a very well-known photographer of young girls, probably many of whom fall into the category of 14 to 16 about whom we are particularly talking. No obscenity of any kind comes into it, but that there is a real sensuality, a real eroticism, nobody can possibly doubt; nor, frankly, can their sales be ascribed to anything else.
§ There are other artists who I will not name but who are dealing with the same situation, and I will take two examples from the past because the Victorian age, and the most respectable parts of that age, were absolutely rampant with this awareness of the sexuality and eroticism of children. If one looks at photographs by Lewis Carroll, the Reverend Charles Dodgson, of small girls, whom he preferred photographing naked, there can be absolutely no doubt whatever that, whether or not he realised it, they were strongly erotic actions. There is no evidence, so far as I know, that it ever did any of the children any harm, although one or two mammas got alarmed and suggested that the children were getting a little old for that, but that was all right because, when they got too old for that, Lewis Carroll thought they had got too old for that, too. Then Henry Tuke, a noted RA, who painted and exhibited in the Royal Academy every year; he painted naked boys bathing in practically every one of his pictures, and again they contain a strong eroticism.
§ There may be Members of your Lordships' House (there probably are) who would like to catch that kind of picture, who think it is indecent and who think that if it went to the DPP—and I suggest that it might well pass some DPPs, because this is an area of considerable 562 doubt—it would be right for such pictures to be caught under this measure. I do not believe that, and I believe that my Amendment would, on the one side, protect the legitimate artist and photographer who nevertheless is aware, as all your Lordships may be aware, of the sexuality of young children; and at the same time it would put the attack, the prosecution, into the position of really prosecuting what matters, which is whether the children are likely to be harmed. It is not whether this or that picture looks indecent to you or to me or to noble and learned Lords or to members of a jury. What this Bill is about, as its proponents have said, is the protection of children, and that is what my Amendment is geared to do.
§ My Amendment may be extremely imperfect and I am prepared to believe it is. I am certainly not going to pursue the matter any further beyond this stage, but I believe it is a matter worth putting before your Lordships in case the Committee should see fit to accept the Amendment. But even if that is not the case, it is worth putting on the record because it seems to me that this is very much a stop-gap of a Bill and that at some time within the next five, six or seven years we shall have to do a major job on legislation dealing with obscenity and indecency. Perhaps it is not a bad thing to face up to some of the problems as we go along.
§ Lord HARRIS of GREENWICH
The Amendment raises two issues about the present effect of the Government's new clause, indeed of the original Bill, and about the effect of the legislation if the Amendment were carried. I will deal with both issues in turn. As the noble Lord, Lord Beaumont of Whitley, said, indecency is the test in various existing parts of the law. In none of the provisions is the word defined or qualified or limited in any way, in a similar manner to what is proposed here.
"Indecent" or "obscene" is the test laid down under the Customs legislation for prohibited imports, and under the Post Office Act 1953 for prohibited matter in the post. Public displays and advertisements are illegal if they are indecent under various 19th century enactments, and indecency is also the test under certain offences at common law, such as that of 563 indecent exhibition which applied to the exhibition of films until the autumn of last year. There is, therefore, nothing new in the concept so far as the courts are concerned and, as has been said, it has been held that indecency refers to matter which offends against recognised standards of propriety.
The concept of indecency is, accordingly, linked to contemporary public standards and is a matter to be decided by the court in each case in the light of what those standards are perceived to be. What is indecent is a matter of fact, rather than a matter of law, and even if an observation of a former Lord Chief Justice a number of years ago can be taken as an indication of a view that the naked human body is indecent, that in no way binds a present-day court, or indeed affects the way in which it reaches its decision.
There is indeed much evidence that the courts do not follow such a view. Let me cite one particular example. It concerns a decision in the High Court in a customs case; that of The Commissioners of Customs and Excise v. Sun and Health Ltd., in 1973. In that case the judge specifically said that photographs of naked boys as such would not offend against recognised standards of propriety. Some of the photographs before him were, he said, patently inoffensive, and he went on to consider in relation to the remainder, whether there were ingredients besides simple nakedness which would make them indecent. That is exactly how I would expect the issue under the Bill to be decided. What this amounts to is that, taking account of the age in which we live, and evidence of the decisions of the courts in cases involving the meaning of indecency, I think, frankly, that there is no danger that ordinary family snapshots, or legitimate sex education material, would be caught by the terms of the Bill.
I should now like to turn to the effect of the second part of the Amendment moved by the noble Lord, Lord Beaumont. I must say that it seems to place an altogether unreasonable burden upon the prosecution. If the Amendment were to be carried, a prosecution would succeed only if the court was satisfied that a child was harmed physically or mentally by the photography; and this seems to leave to the courts a broad area of policy 564 which I think should more properly be decided by the Legislature. Although the Amendment would preserve the word "indecency"—it certainly does that—the issue before the court would in effect no longer be the simple one of indecency at all, but an altogether more difficult one of actual, or presumed, effects upon the child. In effect, Parliament would be saying to the courts, by passing the Amendment, that child pornography may or may not be a bad thing, depending on whether proof of harm can be adduced.
I am sure that this is not the intention of the noble Lord, but I believe that it would be an invitation to those who think that children are unlikely to be harmed by indecent photography to come forward to argue their case in court. There would clearly be difficulties for the prosecuting authorities in producing evidence of harm; and one obvious example here would be where the material concerned is imported from abroad. That in itself seems to be a fatal defect in the Amendment. There is the difficulty that when we have indications of the problems being experienced by some young people who have become involved in pornography, it would surely only add to those problems to have the effects on the particular individual as an issue to be discussed at length, and argued about, in a court. That seems to me to be going altogether too far. It appears to be a trauma that we should do our very best to spare children. I recognise that what I mention here is not the intention of the noble Lord, but it would I believe be the consequence of carrying the Amendment. For the reasons I have given I would not commend the Amendment to the Committee—
§ Lord NORTHFIELD
I wonder whether my noble friend, before sitting down, could go a little further in giving a reassurance to the noble Lord, Lord Beaumont of Whitley. He said that, given the background of current standards in these matters, the interpretation of the clause by the courts would not in any sense do harm to the family photograph. That was the term he used and I think he used another example, too. Can he not go at least one stage further—I believe that it would be true to say this—and say that in this context the work of, for example, David Hamilton, as well as some photo- 565 graphs, drawings and paintings which showed sexuality to a reasonable extent, and eroticism to a certain extent, would not be harmed? I hope that my noble friend will go that much further, otherwise he would not be doing justice to the case put forward by the noble Lord.
§ Lord HARRIS of GREENWICH
I have dealt with this issue—which has constantly been argued—in relation to what is known as the family snapshot argument. It was a central feature of the debate on Second Reading. It has been argued by some, indeed by many—and it has been argued in the Press—that there is a real risk here. What I am saying is that I do not believe that this is a serious problem; indeed, I do not believe that it is a problem at all. With regard to the other matter, I believe that only the indecent photograph will be caught. Obviously that is my position. I made it quite clear when I spoke on the Amendment.
§ Lord HALE
I do not think that it is necessary for me to say, "Before the noble Lord sits down"—and certainly I shall sit down myself in one or two minutes. I agree with almost every word of the speech of the noble Lord, Lord Beaumont of Whitley. I passionately agree with him in many of the things he said, hut I also agree with almost every word that the noble Lord, Lord Harris, said about the Amendment. I do not think that there can be a test of active harm. I recall what has happened in many cases of indecent assaults on young children. I realise that, strictly speaking, we are not talking about assaults—yet by implication we are. In such cases, children's officers of great experience have told me that serious psychological symptoms can develop after a fairly long interval. I think that that is generally borne out by medicine. At any rate, this is not the kind of criterion that can be applied as a test.
We have been facing the force of public opinion. The noble Baroness, Lady Faithfull, with a degree of either low cunning or high statesmanship, has, with the Home Office, amalgamated an eminently sensible procedure. I consider that the results are eminently desirable, and this is greatly to her credit. I agree with the noble Lord, Lord Beaumont, 566 that we are taking rather more risks than one likes to take in a criminal case. On the other hand, I do not feel any passion for people who really want defending on these matters. I agree also with what has been said regarding the proposal relating to the Director of Public Prosecutions. This is an excellent proposal; it is the kind of thing which may enable the Bill to go through. I was thinking of opening a debate in the near future on the Director of Public Prosecutions, and to say that his power is growing and expanding, developing and spreading, almost like a tentacle. One would like to know how many people there are to make decisions, and how many decisions the Director of Public Prosecutions himself can possibly make. It cannot be many.
I believe that all of this falls into perspective. The noble Baroness and the noble Lord, Lord Harris, have tried their best to define the matter. I dislike very much the word "indecent". The noble Lord, Lord Harris, slipped a little lightly over the ice of advertisements and so on. If I remember rightly, in the Indecent Advertisements Act 1889 advertisements about cures for gonorrhea and other veneral diseases are specifically cited as the definition of indecent advertisements which are prohibited from being exhibited over a vast terrain—that sounds almost like the Department of the Environment.
Everyone has done his very best, and I think that we ought to be grateful to the noble Baroness who has made so many efforts in relation to the Bill. I had my pocket picked about 12 months ago, and had I had in my pocket any photographs of a certain kind I might have got into trouble from the chap who picked my pocket. A noble Lord said that these things never happen, but the noble Lord, Lord Wigoder, thinks that they do. Only the truth can teach us on that, and the future may show.
I myself suspect there may not be any prosecutions under this Bill. I know people used to thunder and say, "You should not pass laws unless you intend to enforce them or expect to enforce them". I have long held the view, and have often expressed it, that in these matters there is a great deal to be said for passing a law which will act as a strong deterrent against the publication of photographs of this kind, against the publication of what 567 for the moment we are calling indecent photographs of young children, which is a highly disagreeable activity. I can say that I have been to the Royal Academy this morning, and although I saw quite a number of nudes I do not think Britain is in grave moral danger from that source.
§ Viscount HANWORTH
I think we might consider just for one moment why people wish to view these sort of photographs when they are produced. To some, obviously, it gives a certain satisfaction in itself, and that may be sufficient; but I think that one must conclude that to a number of others it is fuel to the fire, and we might as well consider the possibility that by producing these photographs freely one will in fact increase the danger of sexual assault and undesirable sexual practices on the young.
I think this is a very important point when considering this Amendment, and I am sure that one really ought to take a line where it is possible to enforce the law. The old, old story that if you cannot enforce a law you therefore should not make it is simply not true. A vast majority of our laws are only partially enforceable. What matters, I submit, is that the law should be what people want. It is no good producing a law which people do not want and which they despise. That has absolutely nothing to do with enforcement.
§ Lord MONSON
I have considerable sympathy with paragraph (a) of the Amendment moved by the noble Lord, Lord Beaumont, but I believe there is a great flaw in paragraph (b), quite apart from that cited by the noble Lord, Lord Harris of Greenwich. Suppose an unscrupulous individual were to take a conventional photograph of a baby or small child lying naked on a rug, but were then later to retouch it or overprint it so as to turn it into an obscene photograph. Would it not cause great psychological harm to the parents of the child concerned if it fell into their hands, and are not the feelings of the parents also important?
Lord DE CLIFFORD
May I say that I am, as I was on Second Reading, getting slightly confused. The difficulty which faces me is this. There appears to 568 be an enormous amount of legal argument going backwards and forwards. I know that ultimately the matter will have to end up in the courts, but there are two things that I want to happen. The parents of children must have a very clear understanding of what the noble Baroness is trying to do to protect their children, and we must not confuse this more than we have to. The second thing which strikes my mind very strongly is the question of intent. What is the intent of people publishing these things and offering them around? Somebody who takes a family photograph and offers it around has no intention of being indecent, but somebody who takes a family photograph, touches it up and then offers it around for money has a grave intent of indecency. Could we not, somewhere here, get this matter of intent quite clearly into this Bill?
§ Lord ROBERTSON of OAKRIDGE
I feel that the Committee should indeed be grateful to the noble Lord, Lord Beaumont, for emphasising the pitfalls which we could fall into by making the Bill too restrictive. On the other hand, I am reassured by the answer given by the noble Lord, Lord Harris of Greenwich, and I hope that this is indeed not the case. On the question of pitfalls, I believe that the 1959 Act gives us warning of one particular pitfall, which is the danger of defining a particular term too closely. Having defined what is obscene in a particular way, we have, I believe, caused an unsatisfactory sitution in regard to that law, and I hope we shall not repeat the mistake in connection with this Bill.
I have one other brief point on the second part of the Amendment, where it refers to the making of a film causing harm. I should like to put it on record that one of the objects of the Bill as I see it is to prevent distress being caused to children and their families by the publication of indecent photographs that may have been taken, possibly even without their knowledge.
§ Baroness FAITHFULL
I, too, should like to thank the noble Lord, Lord Beaumont of Whitley, because I think it is right and proper that an opposite point of view, or an extended point of view, should be expressed; and I think your Lordships' Committee is indeed grateful to the noble Lord for having put forward this point of view. At the same time, I think that at 569 Report stage in another place we tried to say that there is a difference in the case of such photographs taken of children. I accept the point of view of the noble Lord, Lord Beaumont: we are a human race, and in everything there is a sense of eroticism, but it is the level at which that eroticism takes place that matters. If I can be very ordinary, if one takes a photograph of the person one loves it means that one has a sense of feeling towards that person. This Bill is not intended to cover anything involving the normal feelings in normal families which indicate love, feeling and affection. What this Bill is intended to cover is anything which an ordinary man or woman would find to be shocking, disgusting or revolting. I really think that there is a difference, that that difference can be seen and that it will he understood by both the police and the courts. Therefore, while I am very grateful to the noble Lord, Lord Beaumont, I am afraid I cannot agree with his Amendment.
§ Lord BEAUMONT of WHITLEY
I am most grateful for the way in which the Committee has received and discussed this Amendment, and I freely admit that there are major flaws in it. The point about material from abroad, I entirely accept; the point about the effects on the child of the matter having to be tested in court, I grant to be an overwhelming reason against the Amendment as it is drafted. I entirely accept the point made by the noble Lord who spoke from the Benches opposite about the effect on the child, not only of the making of the film but also of the showing and the publishing of it, and it is an absolutely worthy part of the Bill that it is trying to stop that harm.
Nevertheless, I still have my doubts in two areas. One of them is in what I might call "the David Hamilton syndrome", which the noble Lord, Lord Northfield, raised. I am still not at all clear what the situation would be there, for, as I say, there is no doubt that in the products of a number of respectable artists and respectable photographers there is a sensuality which a great many people, particularly those who repress their own sexuality, find intensely disturbing—not disgusting or depraved but disturbing. I do not know whether the products of such people, such professional photographers, are covered by 570 this Bill. Nor, I suspect, does anyone else. I think this is a very bad situation. It could he decided only by a jury. We could only make an intelligent guess as to what a jury would decide. I do not know in these circumstances what juries would decide. But I think we ought to be fairly clear in our own minds as to what we are actually saying and doing and whether some of these cases come within the ambit or not. This is quite apart from the peculiar anomaly that, for instance, some of Graham Ovenden's paintings could not possibly be subject to prosecution under this Bill because they are paintings; but if someone photographed them, they could be. That seems a weird situation to find ourselves in, and one which is difficult to deal with.
I do not intend to take up the time of your Lordships any further except to make one last comment. I think that the noble Lord, Lord Harris, skated a little quickly over the difficulty of a definition of indecency. I have no doubt that he, too, has been reminding himself of the proceedings of the Committee stage in another place of the Cinematograph and Indecent Displays Bill and the thorough knots that they tied themselves into as to how one could or could not define "indecency", and of the fact that at the end it was considered right to abandon the whole enterprise. It is very complex and full of hazards, quite often for reasonably innocent people. I agree entirely that the whole thing is saved by our having in the Director of Public Prosecutions clause; although I still maintain that that is not totally satisfactory. I thank noble Lords for the consideration that has been given to what I have said, and beg leave to withdraw the Amendment.
§ Amendment to the Amendment, by leave, withdrawn.
§ [Amendment 6 (as an Amendment to Amendment No. 1) not moved.]
§ On Question, Amendment (No. 1) agreed to.
Lord HARRIS of GREENWICH moved Amendment No. 7:
After Clause 1, insert the following new clause— Evidence.
§ (".—(1) On a charge of an offence under section 1(1)(a) of this Act, the wife or husband 571 of the accused shall be competent to give evidence at every stage of the proceedings, whether for the defence or for the prosecution, and whether the accused is charged solely or jointly with any other person:
§ Provided that—
- (a) the wife or husband shall not be compellable either to give evidence or, in giving evidence, to disclose any communication made to her or him during the marriage by the accused; and
- (b) the failure of a wife or husband of the accused to give evidence shall not be made the subject of any comment by the prosecution.
§ This subsection shall not affect section 1 of the Criminal Evidence Act 1898 (competency of witnesses in criminal cases), or any case where the wife or husband of the accused may at common law be called as a witness without the consent of the accused.
§ (2) In section 27(4) of the Children and Young Persons Act 1963 (definition of "sexual offence" for purposes of provisions of that section about calling children's evidence) after "the Indecency with Children Act 1960" there shall be inserted "or section 1(1)(a) of the Protection of Children Act 1978".
§ (3) On a charge of an offence under section 1(1)(a), (b) or (c) of this Act, the defendant may be convicted without proof that a person photographed, or shown in a photograph, was under the age of 16 at any time, if it appears to the court from the evidence as a whole that he was then under that age.")
§ The noble Lord said: Of the three subsections of the second new clause, which deals with various aspects of evidence concerning the offences in new Clause 1, the first two are common form which treat the offence of taking indecent photographs of children as akin to other kinds of sexual misbehaviour with children. Subsection (3), on the other hand, is important to one of the central problems of this legislation, which is of determining whether an indecent photograph is of someone under or over the age of sixteen. The provision we are proposing adopts a more straightforward approach to this problem than the version it replaces.
§ [Amendment No. 8 (as an amendment to Amendment No. 7) not moved.]
§ On Question, Amendment (No. 7) agreed to.
§ Clause 2 agreed to.
§ Clause 3 [Powers of seizure and destruction]:
§ Entry, search and seizure.
§ (" 3.—(1) The following applies where a justice of the peace is 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 and that such photographs—
- (a) are or have been taken there; or
- (b) are or have been shown there, or are kept there with a view to their being distributed or shown.
§ (2) The justice may issue a warrant under his hand authorising any constable to enter (if need be by force) and search the premises within fourteen days from the date of the warrant, and to seize and remove any articles which he believes (with reasonable cause) to be or include indecent photographs of children taken or shown on the premises, or kept there with a view to their being distributed or shown.
§ (3) 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.
§ (4) This section and section (Forfeiture) below apply in relation to any stall or vehicle, as they apply in relation to premises, with the necessary modifications of references to premises and the substitution of references to use for references to occupation.")
§ The noble Lord said: Clause 3 of the Bill as introduced raised a number of questions about how it was intended to work, and new Clause 3 which, together with new Clause 4, is intended to replace it, offers instead a more detailed scheme for search, seizure and forfeiture in which the police and the courts will be able to draw on experience of the familiar procedures already adopted under the Obscene Publications Acts. I beg to move.
Lord DE CLIFFORD
May I suggest one question to the noble Lord, Lord Harris? Under Clause 3(4) the search area is confined to a "stall or vehicle". Might I ask why this will not apply to boats and also perhaps to aircraft and hovercraft? In the Rabies Act, this area was covered in exactly the same way so that the powers of search when required would apply to these areas.
§ Lord HARRIS of GREENWICH
The noble Lord will not be astonished to hear that I have not the faintest idea of what is the answer to that question. I will 573 endeavour to find the answer before we get to the next stage of the Bill.
§ On Question, Amendment agreed to.
§ Clause 3, as amended, agreed to.
§ Clause 4 [Defence]:
Lord HARRIS of GREENWICH moved Amendment No. 10:
Leave out Clause 4 and insert the following new clause:
§ ("4.—(1) The justice before whom any articles are brought in pursuance of section (Entry, search and seizure) above may issue a summons to the occupier of the premises to appear on a day specified in the summons before a magistrates' court for that petty sessions area to show cause why they should not be forfeited.
§ (2) If the court is satisfied that the articles are in fact indecent photographs of children, taken on the premises or shown there or kept there with a view to their being distributed or shown, the court shall order them to be forfeited; but if the person summoned does not appear, the court shall not make an order unless service of the summons is proved.
§ (3) In addition to the persons summoned, any other person being the owner of the articles brought before the court, or the persons who made them, or any other person through whose hands they had passed before being seized, shall be entitled to appear before the court on the day specified in the summons to show cause why they should not be forfeited.
§ (4) Where any of the articles are ordered to he forfeited under subsection (2), any person who appears, or was entitled to appear, to show cause against the making of the order may appeal to the Crown Court.
§ (5) If as respects any articles brought before it the court does not order forfeiture, the court may if it thinks fit order the person on whose information the warrant for their seizure was issued to pay such costs as the court thinks reasonable to any person who has appeared before it to show cause why the photographs should not be forfeited; and costs ordered to be paid under this subsection shall be recoverable as a civil debt.
§ (6) Where indecent photographs of children are seized under section (Entry, search and seizure) above, and a person is convicted under section 1(1) of offences in respect of those photographs, the court shall order them to be forfeited.
§ (7) An order made under subsection (4) or (6) above (including an order made on appeal) shall not take effect until the expiration of the ordinary time within which an appeal may be instituted or, where such an appeal is duly instituted, until the appeal is finally decided or abandoned; and for this purpose—
- (a) an application for a case to be stated or for leave to appeal shall be treated as the institution of an appeal; and
- (b) where a decision on appeal is subject to a further appeal, the appeal is not finally decided until the expiration of the ordinary time within which a further appeal may be instituted or, where a further appeal is duly instituted, until the further appeal is finally decided or abandoned.")
§ The noble Lord said: I beg to move Amendment No. 10. This Amendment first deletes the clause of the Bill which contained the defence provisions, since they are now included in subsection (4) of the first new clause that we considered. The new clause to be inserted in place of Clause 4 is not related to it, but instead completes the procedure in respect of articles seized under new Clause 3, which I referred to a moment ago.
§ On Question, Amendment agreed to.
§ Clause 5 [Restriction on proceedings]:
§ On Question, Whether Clause 5 shall stand part of the Bill?
§ Lord HARRIS of GREENWICH
This clause falls in view of the similar provision requiring the consent of the Director of Public Prosecutions which we have inserted in the Bill in new Clause 1(3) and, therefore, we should reject this clause.
§ Clause 5 disagreed to.
§ Clause 6 [Punishments]:
Lord HARRIS of GREENWICH moved Amendment No. 11:
Page 4, line 15, leave out from ("to") to ("or") in line 16, and insert ("imprisonment for a term of not more than three years, or to a fine").
§ The noble Lord said: I beg to move this Amendment which simply provides that instead of the limit of £10,000 on the amount of the fine which may be imposed on conviction on indictment, the fine shall be without limit. The Amendment secures that the provision conforms to normal modern practice and I hope that it will commend itself to the Committee.
§ On Question, Amendment agreed to.
§ Clause 6, as amended, agreed to.
§ Clause 7 [Interpretation]:
§ ("7.—(1) The following subsections apply for the interpretation of this Act.
§ (2) References to an indecent photograph include an indecent film, a copy of an indecent photograph or film, and an indecent photograph comprised in a film.
§ (3) Photographs (including those comprised in a film) shall, if they show children and are indecent, be treated for all purposes of this Act as indecent photographs of children.
§ (4) References to a photograph include the negative as well as the positive version.
§ (5) "Film" includes video-tape.").
§ The noble Lord said: I beg to move Amendment No. 12. New Clause 7 contains various provisions which help to remove possible doubts about the scope of the word "photograph". In particular, films, negatives, videotape and reproductions of photographs are all brought clearly within the application of the Bill. The other terms defined in the original Clause 7 are either defined elsewhere in the revised clauses or no longer need to be defined.
§ 7.40 p.m.
Lord BEAUMONT of WHITLEY moved, as an Amendment to the Amendment, Amendment No. 13:
Line 6, leave out subsection (3).
§ The noble Lord said: My noble friend and I put this Amendment down on the Marshalled List because we are not entirely happy about the phraseology of subsection (3). Again, we have no intention of pressing this in any way. The only object of the exercise is to ask the noble Lord, Lord Harris of Greenwich, and the noble Baroness if they will take this away and look at one or two of the problems that we see arising. There can be photographs which are of an indecent nature and which have children in them where the two are totally unconnected. It is obviously not the intention of this Act to catch them. We go back to saying that it is not the intention of this Act to spread the law of indecency further just by itself.
§ Two cases come to mind. My noble friend Lord Wigoder, if he had not unfortunately had to leave the Committee, was going to put the case to your Lordships of where a couple are photographed. In these days of Polaroid cameras people 576 may photograph themselves making love —in no way probably obscene but certainly indecent within the meanings of the word—and with a sleeping infant in a cot behind. There can be medical and Freudian arguments about whether that should happen, but that is not what concerns us; what concerns us is the photograph itself.
§ Another example can stem from the point that I raised earlier about the indecent act on the beach. If there is a photograph of an indecent act on the beach, and in the background there are a large number of children playing happily and, so far as they are concerned, unable to witness in any way what is going on, it is clear that a photograph of this kind should not he included in the scope of the Bill. We entirely recognise the real purpose behind this: that what you must do is exclude photographs which just have the child witnessing indecent acts by others. That may well be more indecent in a way than some of the other things that we have been considering. Therefore, in moving that we leave out this subsection I am merely asking the noble Lord if he will consider this problem and see if there is any way where we can exclude what is not meant to be included, and include what is. I beg to move.
§ Lord HARRIS of GREENWICH
The purpose of subsection (3) of new Clause 7 is to extend the protection of the Bill to the case where a child is involved in indecent photography but where the resulting photograph might not be held to be an indecent photograph of a child. This might happen if the child is only one of a group, otherwise adults, and where the photograph might therefore be held to be not "of a child". More particularly, it might be that the child himself is not photographed in any kind of indecent pose—he might perhaps be fully dressed—but he is shown in the presence of indecent acts between adults.
From the point of view of the mischief at which the Bill is aimed, it seems equally undesirable that children should be involved in this kind of photography. Indeed, it was the kind of photography touched upon by the noble Lord, Lord Beaumont of Whitley. Subsection (3) therefore makes it clear that if a photograph shows a child and is indecent it is 577 for the purposes of the Bill an indecent photograph of a child. I think it would be undesirable for there to be any doubt about this, and I hope that the Committee will agree that the subsection should be retained in the new clause. I will gladly look at the particular point put to me by the noble Lord. To be absolutely frank, I am not at the moment persuaded that it is going to be very easy to find a way out of this particular difficulty.
§ Lord BEAUMONT of WHITLEY
That is why I was leaving it to the noble Lord. With that assurance, I am more than content and I beg leave to withdraw the Amendment.
§ On Question, Amendment to the Amendment, by leave, withdrawn.
§ On Question, Amendment agreed to.
§ Clause 7, as amended, agreed to.
§ Clause 8 [Short title, extent and commencement]:
§ 7.45 p.m.
Baroness ELLIOT of HARWOOD moved Amendment No. 14:
Page 5, line 7, leave out subsection (2).
The noble Baroness said: This is a simple Amendment to make this Bill applicable throughout the United Kingdom to both Scotland and Northern Ireland. I have had some communications with the Chief Constables of Edinburgh, the Lothians and Glasgow to find out whether they knew of any behaviour which came within this Bill. I have had interesting letters from them. I asked in my letter whether they would agree that the Bill should apply to the United Kingdom? In the replies I received from two important people engaged in protection from crime, they made the same point. In the case of the Lothian and Borders police, they said:
Should the proposed Bill not apply to Scotland, persons indulging in this practice for personal gratification might he encouraged to enter this field on a professional basis and persons from other parts of the United Kingdom might also use Scotland as a base for the production of such articles. I would therefore strongly support your recommendation that the proposed Bill should also apply to Scotland.
From the Chief Constable of the Strathclyde police, the letter said:
The existing legal powers available could certainly be extended under the Scottish system but I would consider it preferable to have the legislation made applicable to the United Kingdom as a whole, provided the parliamentary draughtsmen take note of existing Scottish aspects and terminology.
§ It is therefore important that this Bill should apply to the whole of the United Kingdom. The reasons are obvious. One would be very disappointed and sad if the people whom we are trying to stop carrying on this disgusting business found it possible to carry on in some other part of the United Kingdom; I am sure that the noble Lord, Lord Harris of Greenwich, will agree about this. I hope very much that he will agree to this Amendment. I beg to move.
§ The DEPUTY CHAIRMAN of COMMITTEES (Viscount Simon)
I have to inform the Committee that, if this Amendment is agreed to, I shall not be able to call Amendment No. 15.
§ Lord HARRIS of GREENWICH
May I deal with Scotland first—appropriately in view of the fact that the noble Baroness moved this Amendment—and then I will come to the situation in Northern Ireland. The two cases are different for reasons which I will explain. I am advised that the law in Scotland is already different and I am assured by my right honourable friends the Secretary of State for Scotland and the Lord Advocate that there is no need for legislation to outlaw the production and distribution of pornographic material in Scotland. There is no abuse at which this Bill strikes which is not already an offence under the Scottish criminal law. Indeed, the common law of Scotland and the powers of the courts under it are more extensive than the provision made by the Bill. That is the situation so far as Scotland is concerned. I will gladly draw the attention of my right honourable friend to what the noble Baroness has said.
May I now come to the situation in Northern Ireland, which is a different matter for a number of fairly obvious reasons. So far as this Bill is concerned, the Governenmt's view remains that as described by my honourable friend the Parliamentary Under-Secretary of State at the Northern Ireland Office in another place on 21st April; namely, that it is our intention that the law in Northern Ireland 579 should provide equal protection for the children of Northern Ireland, and that it should also provide no less assistance to the police than does the law in England and Wales. However, the Northern Ireland law, on both obscenity and child protection, differs very considerably from that in England and Wales. There would in consequence be serious difficulties in extending this Bill to Northern Ireland by the means proposed by the noble Baroness.
For example, a number of further Amendments to the Bill would be necessary if confusion was not to be introduced into the criminal law in the Province. Moreover, Northern Ireland law relating to pornography and child protection is all contained at present in the Northern Ireland Statute Book. This would no longer be the case if the Bill were to be simply extended in the way which has been suggested. In the view of the Government, therefore, the simple extension of the Bill would lead to a variety of unnecessary complications and would do nothing whatever to serve the interests of the children of the Province. We therefore propose to ensure that equivalent provision for Northern Ireland is made by an Order in Council, which would be free from the kinds of difficulties I have just mentioned. I hope that in the light of what I have said the noble Baroness will feel able to withdraw her Amendment.
§ Baroness ELLIOT of HARWOOD
I am grateful to the noble Lord, Lord Harris, for giving us that information and also very glad that my fears have been calmed on this one matter. I think it is important that the people in Scotland should know, although their name does not appear in the Bill, that it applies to them, and no doubt the Secretary of State will see to it that this does happen. I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
Lord HARRIS of GREENWICH moved Amendment No. 15:
Page 5, line 7, after ("Act") insert ("except section (Indecent photographs of children) (6)").
§ The noble Lord said: I beg to move this Amendment, which is a minor technical one. It extends to Scotland and Northern Ireland the application of the provisions making offences under the Bill extraditable. The Extradition Act of 1870 and the 580 Fugitive Offenders Act 1967 both apply throughout the United Kingdom and therefore that subsection of this Bill which amends those Acts must itself extend throughout the United Kingdom.
§ On Question, Amendment agreed to.
§ Clause 8, as amended, agreed to.
§ In the Title
Lord HARRIS of GREENWICH moved Amendment No. 16:
Line 1, leave out from ("by") to end of line 3 and insert ("making indecent photographs of them; and to penalise the distribution, showing and advertisement of such indecent photographs")
§ The noble Lord said: I beg to move this Amendment, which changes the Long Title of the Bill to reflect more closely what the effect of the legislation will be. The Title at present refers only to production and material of an obscene or pornographic character. The new form of words refers instead to the making, distribution, showing and advertisement of indecent photographs of children. I beg to move.
§ On Question, Amendment agreed to.
§ Title, as amended, agreed to.
§ House resumed: Bill reported, with the Amendments.