HL Deb 04 October 2000 vol 616 cc1549-53

(" .—(1) In section 6(2) of the Protection of Children Act 1978 (punishments), for "three" there is substituted "ten".

(2) In Article 3(4)(a) of the Protection of Children (Northern Ireland) Order 1978 (indecent photographs of children), for "three" there is substituted "ten".

(3) In section 160 of the Criminal Justice Act 1988 (summary offence of possession of indecent photograph of child)—

(a) after subsection (2) there is inserted—

"(2A) A person shall be liable on conviction on indictment of an offence under this section to imprisonment for a term not exceeding five years or a fine, or both."

(b) for the sidenote there is substituted "Possession of indecent photograph of child".

(4) In Article 15 of the Criminal Justice (Evidence, etc.) (Northern Ireland) Order 1988 (summary offence of possession of indecent photograph of child)—

(a) after paragraph (2) there is inserted—

"(2A) A person shall be liable on conviction on indictment of an offence under paragraph (1) to imprisonment for a term not exceeding five years or a fine, or both."

(b) for the heading there is substituted "Possession of indecent photograph of child".").

The noble Lord said: In moving government Amendment No. 104 I shall also speak to Amendment No. 105 in the name of the noble Baroness, Lady Blatch.

This new clause and the amendment of the noble Baroness deal with the same issue and in dealing with the one I shall necessarily deal with the other. However, I hope to demonstrate that, on this occasion, our amendment is superior for two reasons and to persuade the noble Baroness not to move her amendment.

This was an area discussed at length in another place following amendments tabled by honourable Members. As the Government made clear at that time, we were grateful that the issue of penalties for child pornography offences was raised by honourable Members. That was an area that we had been considering and we were pleased to be able to agree to bring before this Committee the amendments tabled for discussion today. Of course, the issue of child pornography, even the offence of possession on its own, is a serious one.

Both the government and opposition amendments will increase the maximum sentence under the Protection of Children Act 1978 for the offences of taking, making, distributing, showing and possessing, with a view to distribution, indecent photographs of children under 16 on conviction on indictment from three years imprisonment, or a fine or both, to a term not exceeding 10 years, or a fine or both.

In addition, our amendment also makes the simple possession of indecent images of children under 16 an either way offence and increases the maximum penalty available under Section 160 of the Criminal Justice Act 1988 from a maximum of six months imprisonment, or a fine or both, to a term not exceeding five years imprisonment, or a fine or both.

Amendments Nos. 104 and 105 demonstrate that all noble Lords fully share public abhorrence of such crimes. We need to ensure that the maximum penalties available for this type of offence reflect the seriousness with which society regards them. We agree that child pornography is not to be tolerated in any form and regard offences relating to the production and distribution of such material as very serious indeed. No one in this House will forget that pictures of child pornography are, in effect, pictures of child abuse.

We understand that misuse of the Internet has unfortunately led to an increase in the number of offences committed under the Protection of Children Act 1978. We are all aware that public concern about the circulation of this material has grown, While the sexual offences review did not look at pornography offences in themselves, we believe that there is a clear read-across to the offences under the Protection of Children Act 1978. In light of our concern that the law delivers protection for children and of the work of the review which has the protection of children as a central aim, as well as our wider concerns over the increased incidence of child pornography offences, we feel that the time is now right—we hope we have a consensus for this—to enhance the maximum penalties for these offences.

I said that we felt that our amendment had two advantages. The first is that it refers to the other offence—that of simple possession of indecent images—and deals with the rising and maximum sentence for that offence. The second is that the new clause will apply to England, Wales and Northern Ireland. In due course I shall move an amendment to Clause 72 to ensure that that is achieved. Colleagues in Scotland will of course consider the implications for their own legislation. As presently drafted Amendment No. 105 would not go as far as bringing Northern Ireland into the ambit of this offence. I therefore invite the noble Baroness, Lady Blatch, not to move Amendment No. 105. I beg to move.

Baroness Blatch

I am grateful to the Minister for that explanation. I have admitted my weakness before in understanding legalese and it was helpful to have that explanation. Certainly on the face of it I accept the Government's amendment. It was in good faith promised in another place and it is here, and it does appear to go further than my amendment. However, I should like to reflect on the relative merits of the amendments between now and the next stage.

The noble Lord, Lord Bach, from his experience in court and the experience of his colleague, the noble Lord, Lord Bassam, in the Home Office, will know the sheer corrupting and degrading effects of taking, making or distributing child pornography, not to mention, as the noble Lord said, the horrific consequences for children who are physically abused for the purpose. For every pornographic picture involving children there is a child abused. That is a point worth bearing in mind when this amendment is being considered.

I am grateful for what the noble Lord said. On the face of it I accept that Amendment No. 104 is a better amendment than mine. My other point relates to something said by the noble Lord, Lord Northbourne; that is, the thorny issue still arises of a definition of pornography and pornographic pictures. It will be important to resolve that before the next stage of the Bill.

Lord Northbourne

This gives me the opportunity of raising once again the question of what is meant by indecent photographs, which got rather lost in the toing and froing over Amendment No. 82.

I have had the opportunity to look at Schedule 4 and also to visit in the Library the guidelines to which the Minister referred. Neither has any definition of indecent photographs. The noble Lord, in moving Amendment No. 104, referred repeatedly to child pornography. Is he saying that an indecent photograph is the same as child pornography? I am not clear. I remember when the police put on a show of pornography and associated issues by Westminster Hall. There were pictures not of children being sexually abused, but simply pictures of naked children.

We have to be extremely careful that we get this right. In the first place we would make ourselves look absurd and discredit the cause of trying to defeat child pornography if we did not; secondly, it is wrong to give children or anyone else the idea that nakedness in itself is an evil.

Earl Russell

I support the points made by the noble Lord, Lord Northbourne. Everyone concerned sympathises with the Government's amendment. We want to be certain that it is not going to catch people it is not meant to catch. The noble Lord says that he cannot find any definition in legislation. Perhaps there is a definition in case law which would be adequate. If so, I hope the Minister can tell us about it. If there is no definition in either, should we put one in to make sure we do not do what we do not intend to do?

5.15 p.m.

Baroness Blatch

Perhaps I can admit to another failure in my life. Throughout almost the whole of my time at the Home Office I tried hard to obtain a definition of indecency and failed miserably. The Home Office was very resistant to providing a definition.

A picture that is corrupting and depraving is a picture that is not acceptable. If one thinks of the beautiful pictures of John Lennon and Yoko Ono with their child, in some of which all three were naked, none of them were indecent photographs as such. It is where the photograph itself is corrupting and depraving and where the activity that is being photographed is an offence to the child. It must be possible, with the kind of brains that we can muster to bear on this, to produce a definition of pornography. It is one of those cases where we all know what we mean by it, but in relation to the law it is important to obtain a form of words to reflect what we think we all mean.

Lord Thomas of Gresford

I appeared in a leading case in court before the Judicial Committee of this House which was concerned with indecent assault; my noble friend Lord Carlile of Berriew was on the other side. That was a case in which a shopkeeper in Pwllheli had smacked the bottom of a 12 year-old girl. The question that arose was whether or not that was an indecent assault.

I suggest the Government look at that case. At the end of the day what is indecent is what is indecent in the eyes of the tribunal deciding the issue, whether it is magistrates or whether it is a jury. All the circumstances of the specific case have to be taken into account. By analogy, if one applies that principle to indecent photographs, it is simply a matter for the tribunal to decide whether or not they are indecent photographs. There is no other way in which one can approach this. One cannot put into words what a picture conveys. Accordingly, one must leave it to the good sense of the judiciary, juries and the magistracy.

Lord Laming

I support what has just been said and the noble Baroness, Lady Blatch, should not feel any sense of failure in respect of her past experience in relation to indecency. Although in the centre of it all it is possible to know what is offensive and what is against the interests of the child, at the margins—this is where indecent photographs and activities like smacking a child appear—there will always be an issue of judgment. As long as the law focuses upon the welfare and safety of the child, it seems to be in the right place. Judgments should be left to other people in individual cases. The law is now making it clear that the protection of children is at the centre of its thinking.

Lord Bach

I am grateful to all noble Lords who have taken part in this debate. I should remind noble Lords that the government amendment looks at existing offences under Acts of Parliament going back to 1978 and suggests to the Committee that we raise the maximum sentence for them.

In relation to definitions, we shall have to look at the Act itself in order to obtain the best definition that we can. However, the noble Lord, Lord Thomas of Gresford, with his vast experience in this field, put his finger on it. It will be for the court in each instance—the jury if the matter is heard at Crown Court; the magistrates if it is summarily—to decide whether or not any set of facts amounts to the offence in the Act of Parliament. With the greatest respect to all noble Lords who have spoken on this matter, we are here dealing with what the maximum sentence should be for an offence that is proved. If the offence is not proved, no sentence will be served because there will be no conviction. I commend the amendment to the Committee.

On Question, amendment agreed to.

[Amendment No. 105 not moved.]

Baroness Blatch moved Amendment No. 106: After Clause 36, insert the following new clause—