§ 201 After Clause 143, insert the following new clause:
§ 'Summary' offence of possession of indecent photograph of child.
§ .—(1) It is an offence for a person to have any indecent photograph of a child (meaning in this section a person under the age of 16) in his possession.
§ (2) Where a person is charged with an offence under subsection (1) above, it shall be a defence for him to prove
- (a) that he had a legitimate reason for having the photograph in his possesion; or
- (b) that he had not himself seen the photograph and did not know, nor had any cause to suspect. it to be indecent; or
- (c) that the photograph was sent to him without any prior request made by him or on his behalf and that he did not keep it for an unreasonable time.
§ (3) A person shall he liable on summary conviction of an offence under this section to a fine not exceeding level 5 on the standard scale.
§ (5) Possession before this section comes into force is not an offence.'1669
§ 202 Insert the following new clause:
§ 'Possession of indecent photographs of children: Scotland.
§ "Possession of indecent photographs of children.
§ 52A.—(1) It is an offence for a person to have any indecent photograph of a child (meaning in this section a person under the age of 16) in his possession."
§ (2) Where a person is charged with an offence under subsection (1), it shall be a defence for him to prove—
- (a) that he had a legitimate reason for having the photograph in his possession; or
- (b) that he had not himself seen the photograph and did not know, nor had any cause to suspect, it to be indecent; or
- (c) that the photograph was sent to him without any prior request made by him or on his behalf and that he did not keep it for an unreasonable time.
§ (3) A person shall be liable on summary conviction of an offence under this section to a fine not exceeding level 5 on the standard scale.
§ (4) Subsections (2) and (8) of section 52 of this Act shall have effect for the purposes of this section as they have for the purposes of that section."
§ (2) Section 52A of that Act shall not have effect in relation to anything done before it comes into force.'.
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 201 and 202. It may also be for the convenience of your Lordships if I speak to Amendments Nos. 216, 379, 383, 411 and 428.
These amendments create for England and Wales and Scotland a new offence of possessing an indecent photograph of a child under the age of 16. They penalise people who possess such photographs for their own use. We believe that people will be less willing to buy or to keep this material if they know that they put themselves at risk of a criminal conviction, and the penalties, especially the public shame, that may follow. This should reduce the market for what is a vile product. A photograph for these purposes includes a film or a video.
Amendments Nos. 379 and 411 apply to the new offence police powers of entry, search and seizure, and powers for the court to order forfeiture of the material which are already found in the Protection of Children Act 1978.
§ Moved, That the House do agree with the Commons in their Amendments Nos. 201 and 202.—(Earl Ferrers.)
§ 3.45 p.m.
§ Lord Houghton of Sowerby
My Lords, I feel awful about raising these few matters on the amendments. But, believe it or not, I have been sitting here since half' past 12 expressly for that purpose. It shows just how far out of proportion one's view of things can get in this House. Had I known that body searches in Northern Ireland were to obtrude in our debate to the extent they have I might have given up long ago. I feel however that there are a few points to be made about the amendments. The first is that continuously a Bill of this kind in its passage through Parliament becomes loaded up with changes of a miscellaneous character which raise entirely different issues from the Bill's main ethos. This is criminal justice: on the whole we understand its main theme. But these amendments raise issues of pornography and video recordings and the discontinuance of the 1670 conventional vigilance of the police, replaced by the bureaucratic oversight of the working of the Video Recordings Act.
Here is another example of the proof of innocence being put upon the accused person. We passed one amendment only a few minutes ago; here is a second. This is becoming too frequent. One day soon we ought to consider, when we are putting the onus of proof on the accused, whether some specific authority of Parliament should be registered and not regarded as an option to be adopted as we go through the conventional consideration of a Bill of this kind. I know the difficulty. I have taken part in this myself—getting a conviction where guilt has to be proved. When one is sure that guilt is present in a case, but evidence is lacking because of the nature of the charge made—I speak particularly in relation to badger digging and things of that nature—to give protection, one sometimes has to say that if a person is acting in suspicious circumstances, he or she has to be asked to prove his innocence because it will be difficult to convict otherwise.
I pass now to a question that puzzles me. We are dealing here with an "offence for a person". Then we go on to say that,it shall he a defence for him to prove.My first question is: are we talking about men and women or just men? This question is not as silly as it sounds. The tendency would be for this kind of traffic to take place among men. I wonder whether a woman having this so-called indecent photograph in her possession would be open to the same conditions of accusation and presumption of guilt as a man? There is also the question: what is an indecent video? That is an old one. I have been consulting Halsbury's judicial interpretations of this difficult word "indecent". It is linked with obscenity. We can be driven to regard as indecent something which is not indecent and should not be regarded as indecent. Is nudity indecent?
When we are talking of indecency, as apparently we are in other Acts, we are talking about an indecent act, a portrayal of something which is palpably indecent—explicit sexual intercourse, abuse and other portrayals of bodily activity which can be regarded as indecent. Is it indecent merely to have a photograph of a nude child?
I understand the point about "photograph" because part of the mischief which we are trying to prevent is the use of children for photographs. Therefore to bring paintings, drawings and things of that nature within the mischief of this Bill would obviously be carrying matters too far. All sorts of queer things can happen at present. I was told recently—and I wished I had asked for verification of what I am about to say—of a person who sent holiday photographs to be developed in the normal course to a shop which received the negatives for that purpose. That person then received a visit from the police because the negatives showed something which the shopkeeper thought should go to the police and having the name and address of the person who had lodged the negatives for development, he had the identity of the person concerned. The police turned up. That is really an astonishing happening.
I also mention—and I can verify this—a case about which I was consulted of a person in Scotland. The law in Scotland differs from that in England because 1671 they employ a term in their legislation which we do not have; namely, the word "lewd". In this case a man had two sons and a third boy joined them. They went to a glade, a glen, a beauty spot and waterfalls and they bathed in the nude. He took a photograph. Unfortunately, the third boy was the son of a policeman and when he told his father about it there was police activity. That man was prosecuted, fined £1,500 and his camera was confiscated. Is that an indecent photograph within the meaning of what we are now talking about?
I cannot question what they might do in Scotland. I always thought that they were not so daft in Scotland as we were in England about laws of this kind. However, in Scotland it seems that if you are producing something which is lewd, then you are for it.
We need to know what we are doing. I understand that we are now proposing to carry the Protection of Children Act further than it went at the time. It was bad enough when we were dealing with it. I see that the noble Baroness, Lady Faithfull, is in her place. She had much to do with earlier legislation. The mere photographing of a nude child in the garden by the father could be regarded as a subject about which to inform the police and for them to come along to see if an offence has been committed.
In order to overcome the problem of the market for these indecent photographs, we are pursuing not only those who take them but also those who possess them. We shall soon have big brother creeping up on us all wanting to know what we have in our pockets or in our wallets and asking. "Have you an indecent photograph, because if you have the presumption is that you are guilty, but we shall give you a chance to prove that you have it legitimately". Tell me what is the legitimate possession of a photograph of that kind? How long do you have to keep a photograph before you are accused of keeping it too long? "It was not in transit in your case. You were keeping it to look at it". How stupid can we get?
All legislation coming before Parliament relating to children is adding to the cumulative indictment of the social values of the family, with the increasing risks that apparently children run in almost every household in the land. We shall see when we come to deal with abuse later that no one will be able to keep a social worker out of the house. Surveillance of family activities may become almost unbearable.
We must ask why this legislation comes before us. I have tried to find out the origins of these matters. They are doing their business in the other place in an extraordinary and mysterious way. New clauses are added to the Bill. As far as I can tell, First and Second Readings and Standing Committees are going through without a word being said about them. This is the case in respect of these Amendments Nos. 201 and 202. In fact, on Amendment No. 202 more was said. It deals with the Video Recordings Act.
I must say a few words about the Video Recordings Act because I took a great part, a lone part, in it. If only Parliament had waited for the Government to complete their investigations and consultations into video recordings, how much better it would have been. However, we have the Act now. The proposal is that the inspectors of weights and measures shall now be the police force to look at the enforcement of 1672 the Video Recordings Act. This is another example of where bureaucracy is to replace the police. That is happening on an ever-widening scale. Bureaucracy is being given powers which normally have been reserved for the police. The police are identifiable officers to the public. Bureaucrats frequently are not.
This legislation gives the inspectors of weights and measures the power to enter, to inspect and in some cases to do more than the police are empowered to do. Is that right? It is convenient, but the truth of the matter is that the police have lost interest in enforcement of the Video Recordings Act since the transfer of the right to prosecute from the chief constables to the Crown Prosecution Service. Eccentrics like the Chief Constable of Manchester had a porn squad in pursuit of people in business with bookshops and radio shops. If one chief constable failed to get a conviction from a jury in regard to a specific film, another chief constable would try a prosecution in his area to see whether he could get a conviction. What was going on at that time was a scandal.
From that point of view one welcomes the transfer to a more sober and sensible force of overseers of enforcement. The industry does not find that unwelcome. There are aspects that need to be attended to in the enforcement of the Video Recordings Act, which only works because some parts of it were unworkable from the beginning and it has not been necessary to activate them in particular exemption clauses.
However, the hour is late. I can tell the noble Earl, Lord Ferrers, that if I were a shop steward I would have called everybody out hours ago on the ground that we have had neither a luncheon interval nor even time for what the railwaymen call natural functions. We treat our Ministers abominably. The noble Earl has been here since whatever hour it was this morning that we started. I must not continue.
I feel that we are doing something which is a kind of appendage to this Bill which raises issues regarding separate laws of their own which should be dealt with in the proper context. We shall come up against the same problem when discussing the Finance Bill on Wednesday. It is as though we have a kind of Lord Mayor's Show in which the coaches gather and different interests are attracted as they go along. Ultimately, there is an omnibus Bill such as this one which has been trundling around the place since before the general election. This Bill has been added to as it has gone along and then at the very last moment, such as now, we are not even allowed a Committee stage to deal with amendments of this importance. We have to swallow or reject them late on a Friday afternoon. That is enough.
§ 4 p.m.
§ Lord Hailsham of Saint Marylebone
My Lords, I believe that the noble Lord, Lord Houghton of Sowerby, is making unduly heavy weather of this subject. However, on one point I thoroughly agree with him. I believe that 76 pages of Commons amendments to any Bill are too much. This is a feast of amendments which would have satisfied even the gargantuan appetite of his late Majesty, Edward VII. We should never again have so many Commons' amendments. As regards this particular amendment, I am wholeheartedly in favour of it and because the 1673 hour is late I say no more except that if the noble Lord, Lord Houghton of Sowerby, looks at the Interpretation Act he will see that it states very clearly that "him" embraces "her".
§ Lord Monson
My Lords, I too must confess to some unease about this amendment as someone who takes the doubtless somewhat old-fashioned view that an Englishman's home is his castle, and that this principle extends even to perverted Englishmen, Scots and Welshmen, so long as they do not harm other people within the four walls of the home. It may be worth pointing out that this amendment includes not only photographs of children below the age of puberty, as is generally supposed, but also girls who may be no more than a month or two below the present age of consent, which is higher than the age of consent in many, if not most, other countries, and higher than the age of consent in Victorian England. That is perhaps a minor libertarian quibble. The main question concerns harm to children, the operative word being "harm".
I believe that one can reasonably assume that at least 1 per cent. of the adult population—the Cleveland doctors would have said 10 per cent., but I believe we can discount that—mainly men, but including some women, are afflicted with the obsession accurately described, or so one imagines, in that 20th century classic Lolita. We are therefore talking of at least 400,000 people. What is to be done with all these people? One cannot shoot them or lock them up in prison or secure mental institutions until they reach the age of 80, by which time one supposes that their desires will have diminished——
§ Lord Monson
My Lords, I apologise to the noble and learned Lord. Neither in a democracy can one castrate them, either surgically or chemically. Most of those 400,000 people, apart from the very few who have been caught and are locked up, will be at large and potentially on the prowl. If one deprives them of the material with which to fantasise—I do not believe I need to be more explicit—are they not more rather than less likely to attack children?
I ask the Minister whether this amendment has come about as the result of a perfectly understandable gut reaction against this mainly disgusting material, or have the Government thought through the matter thoroughly and dispassionately? One would dearly like to know whether the Government have been assured by doctors and psychiatrists that banning the private possession of this material will lessen the risks to children rather than increase them. After all, that is what matters.
§ Lord Hutchinson of Lullington
My Lords, is the noble Lord suggesting that pornographic pictures of children should be supplied to those 400,000 people in order to keep them happy in their homes?
My Lords, as a matter of fact that is just about the point at which there is disagreement.
1674 The noble Lord, Lord Houghton of Sowerby, enjoyed himself this afternoon. He was kind enough to make some generous comments about myself for not having had the advantage of lunch. All I can say is that the noble Lord's intervention did nothing to alleviate such discomfort as he perceived in me. It was one that I was happy to endure.
I do not propose to go into a long defence of the amendment this afternoon. Everyone knows how it has come about. There is considerable concern about the sexual abuse of children and the bad way in which there can be trade in pictures or photographs of children. The noble Lord asked whether, although the amendment is in the male, it refers to the female. The answer is yes, as my noble and learned friend Lord Hailsham said. The noble Lord asked whether Big Brother will be watching us. That is a matter for him to consider. He might take one view and others might take another. The noble Lord asked how long one has to have the picture. One has to possess it, and it would be up to the courts to determine whether or not a person was in possession.
The noble Lord asked how stupid can we get. I shall not propose to answer that question. He also asked: what is indecent? That is also a matter for the courts to decide. I have no intention whatever of getting into an argument on that subject this afternoon. The word "indecency" is used in the Protection of Children Act 1978. It is already an offence to take, to distribute or to show an indecent photograph. All we do in Amendment No. 201 is to say that it is an offence for a person to have an indecent photograph. There is no reason to think that the definition has given rise to difficulties, for example, with family snapshots. The courts are familiar with this type of concept. I hope therefore that your Lordships will agree to the amendment.
§ On Question, Motion agreed to.