Mobile Telephones (Reprogramming) Bill [H.L.] (Hansard, 4 July 2002)

§ Lord Campbell-Savours
moved the amendment: Page 1, line 18, leave out from "be" to ", and" in line 20 and insert "in conjunction with equipment capable of interfering with the operation of unique device identifier be used for such purposes The noble Lord said: My Lords, I do not intend to detain the House for long. The Minister will know that I raised in Committee the whole question of what would happen in the event that a cable was the item referred to as "anything" in Clause 2(1)(a).I shall read 363 the clause as I imagine it might be read in the minds of those who are faced with whether a prosecution could take place: he has in his custody or under his control anything"— which I refer to as a cable— which may be used for the purpose of changing or interfering with the operation of a unique device identifier". Following the Committee stage I raised that whole question with Nokia and the mobile industry crime action group. Indeed, I met representatives of the action group in the House a couple of days ago. While they do not fully subscribe to the case that I make, they certainly understood the point and said that it was the subject of substantial debate in the department when the consultations were taking place. My argument is that a cable, in conjunction with a cache of 20, 30 or 40 telephones, might, in the minds of a prosecuting authority, be sufficient to warrant bringing a prosecution. My noble friend will no doubt say that he believes that that is not the case, but I can imagine circumstances in which it might well be the case. I can give my noble friend one example. With advances in science and developing technology, the printed circuitry may be involved in the cable and not necessarily in a PC. Such a cable, along with a cache of phones, might well be the basis on which a prosecution is called.
For the purpose of greater clarity at this stage, when such technology is not in place, I am asking that a clear message be sent to those who take these decisions as to what evidence should be taken into account when a prosecution is brought. The amendment refers specifically to the additional equipment taken in conjunction with a cable that would have to be in place along with a cache of phones before a prosecution was bought.
I should also point out that there is a mistake in the amendment as printed. The word "a" is omitted. I beg to move.

§ Lord Dixon-Smith
My Lords, I generally support the amendment. My view has not changed since Committee stage. The Government's approach is dangerously complacent. The Bill seems to have been drafted by someone wearing blinkers. There are times when the use of blinkers is appropriate. When a narrow and specific issue is being dealt with, it is right to have a tightly focused approach. However, the problem that we are dealing with relates not just to mobile phones, but to street crime and a host of other issues. I have heard nothing to alter my view that the Bill has been drafted with such a tight focus that it can only be a second best Bill. It ought to focus more widely on the general issue of theft on the streets—dealing exclusively with the subject of mobile phones, but taking its remit wider than the specific backstreet operation.

§ Lord Dholakia
My Lords, I, too, support the amendment. We rehearsed the arguments at Second 364 Reading and in Committee. The amendment would not take anything away, but would establish greater clarity. I hope that the Minister will see fit to accept it.

§ Lord Filkin
My Lords, I pay tribute to the diligence and persistence of my noble friend Lord Campbell-Savours on the issue. Many of us respect his many years of parliamentary attention to issues that he believes need changing.
Let me explain why we think that the Bill as drafted is right and appropriate. Clause 2(1) targets a person who possesses anything that can be used to change an IMEI number and intends to use it or allow it to be used for that purpose. The offence covers all equipment or software that may be used for reprogramming, even if it was not designed with that in mind. The amendment would redefine the offence so that it applied to anything that might be used in conjunction with equipment that is capable of changing an IMEI number.
In Committee, my noble friend Lord Campbell-Savours asked whether a dealer selling a cable would be caught by the offence. If I understood him correctly, his concern was whether the offence was wide enough to cover equipment such as a cable when it is supplied by a dealer in the knowledge that it will be used to reprogram a mobile phone.
I fully appreciate my noble friend's concerns, but I do not believe that the amendment is necessary, because the Bill makes it clear that anyone who supplies or offers to supply anything that may be used to reprogram a phone will commit an offence if he knows or believes that the person to whom it is supplied intends to use it or allow it to be used unlawfully. The offence is not merely retailing the cable, but doing so in the knowledge that it will be used illegally to reprogram IMEI numbers.
The term "anything" in the Bill covers any software or equipment required for the purpose of making the change. Going back to our debate, I acknowledge with gratitude that that would include a cable, but the offence would not occur with the legitimate supply of equipment, because knowledge or belief of intent would have to be proved. In the everyday circumstance of a telecommunications retailer selling someone a cable that could be used for the purposes that we are talking about, the retailer would not be at risk of committing an offence—and therefore of prosecution—unless he knew or had good reason to believe that the item was going to be used for that purpose.

§ Lord Campbell-Savours
My Lords, when I raised the issue last week, I picked on the weakest case. I could have picked on others, because there are three areas of offence: subsection (3) says, "he offers to supply"; subsection (2) says, "he supplies"; and subsection (1) says: he has in his custody". 365 Surely the prosecuting authorities would find it easier to decide on bringing a prosecution in that case than in the case that my noble friend referred to. Perhaps that goes back to me choosing the wrong example last week.

§ Lord Filkin
My Lords, there is nothing wrong with the example. There was something wrong with my hearing when I heard "table" rather than "cable", but that is beside the point.
My noble friend referred to the words, "has in his custody". There would be no offence open to charge or prosecution unless there was evidence of an intent towards criminality. The retailer is safe in the circumstances that we are describing.
The definition is deliberately drawn widely by using the word, "anything". The amendment could be seen to narrow that offence. It would restrict the offence to the possession of anything that might be used in conjunction with equipment to change an IMEI number. The possession of a cable by itself would not be an offence, even if the intent to use it to change IMEI numbers could be proved. I do not believe for a second that that is what my noble friend intended.
The term "equipment" may also not be wide enough to cover anything that may be used to help change an IMEI number. It is doubtful that software would be covered by "equipment". For those reasons, the Government prefer the current drafting of the offence, while paying proper respect to my noble friend Lord Campbell-Savours and the noble Lord, Lord Dixon-Smith, for the challenges that they have brought on the issue.
I hope that the Government are not for a second dangerously complacent, in the words of the noble Lord, Lord Dixon-Smith. He argued his corner well in Committee. We had subsequent discussions and we offered to bring an assistant commissioner of the Metropolitan Police to a meeting with him so that he could put to rest his legitimate concerns on whether the police were satisfied that the Bill allowed them to bring forward reasonable prosecutions. The noble Lord had the grace to say that he did not wish to avail himself of that opportunity because he did not wish to press the matter further. I mention that because I do not think that it is the action of a dangerously complacent government. We were prepared to carry on the discussion after the debate in the Chamber.
I acknowledge with gratitude the challenge that has been made, but I respectfully invite my noble friend to withdraw the amendment.

§ Lord Campbell-Savours
My Lords, I thank my noble friend. On the basis of what he has said and the undertakings he has given, I beg leave to withdraw the amendment.