House of Lords Reports Stage discussion on possession of extreme pornographic images

House of Lords Report Stage 21.04.2008
Clause 63 [Possession of extreme pornographic images]:

Worth reading the whole debate which is re-produced in full by CyberLaw.org.uk.

For further information about the Bill’s progress click here.

Baroness Miller of Chilthorne Domer moved Amendment No. 86J:
Clause 63, page 47, line 7, leave out “both”

The noble Baroness said: My Lords, with this amendment we move to Part 6 and the clause concerning extreme pornography. The Minister said that we had a series of Second Reading speeches in Committee. There was a good reason for that, as noble Lords felt that important principles were being explored and did not feel that the Government had got this part right. That is not to say that there is not an issue to be addressed—I accept that there is—but the Government have not yet got it right. This group of amendments attempts to get us nearer to getting it right.

There was clearly some support in Committee for what the Government are trying to do, but we on these Benches, and many other noble Lords on other Benches, parted company with the Government because we felt there were a number of problems which the Government still needed to address. First, the Government have veered far away from the definition in the Obscene Publications Act. One of our wishes is that this part should bring into line what the OPA does for producers of material with an internet age to address the fact that this material can be produced outside the UK.

The sort of definition we would be looking at would be one that has been tried and tested in the courts under the Obscene Publications Act and that does not confuse the question of whether the material is produced solely or principally for the purpose of sexual arousal with the question of whether it is obscene. As the noble Baroness, Lady Kennedy of The Shaws, reminded us in Committee, juries have great difficulty in dealing with what is likely to deprave and corrupt. Now they will have to contend not only with that question but also with whether the material is produced solely or principally for the purposes of sexual arousal. That has complicated the issue.

In his reply in Committee, the Minister helpfully said that the Government are seeking after consultation with the police and the CPS to make it illegal to possess material that would normally be liable to

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prosecution under the OPA. We agree that it is important that the OPA is taken as the starting point because there has subsequently been a vast amount of case law which has moved with the times as society’s definition of what is obscene has changed.

The Minister made it clear in his letter of 27 March that what we in the UK have regarded as obscene ever since 1959 is on the whole in advance of what most other countries have regarded as obscene. He sent us a useful round-up of how some of those other countries have legislated. As he says, the UK is a leader. He also says that it would not be the first time the UK has taken a lead in this area. For that reason in particular, it is very important, if these clauses are to be anywhere near to being up that task, that our amendments should be the very least to which the Government aspire. Our amendments reflect the fact that both in Committee and in his letter the Minister accepts that the OPA is good and satisfactory legislation.
9.30 pm

The decades of case law that have built up to a consensus on what is a very difficult subject reflect societal changes. We have therefore tabled Amendment No. 86L to clarify further that, in criminalising what an internet porn viewer is looking at, it should be the same sort of thing that it would be illegal to print under the OPA—neither more nor less.

Amendment No. 86K would ensure that the Bill criminalises a possessor of material in which something is taking place that is actually criminal and not merely distasteful, however distasteful that might be. Will the Minister say more about the penalties which this part of the Bill carries and which are now very severe? If someone viewed over the internet a third party having sexual intercourse with a sheep, would that carry a greater penalty than someone actually having sexual intercourse with a sheep? It is important to focus on the effects of what we are talking about here. Should watching something that is clearly illegal, that clearly gives rise to animal welfare issues and that has clearly been legislated for in animal welfare legislation be more criminal and carry greater penalties than the actual act itself?

In Amendment No. 86M, we have sought to give a far clearer definition of what a sexual offence is. Those offences are quite adequately defined in the Sexual Offences Act 2003, and surely the Government do not want to confuse an already fraught area by having two parallel interpretations of what a sexual offence is.

I will come back to some of the more fundamental issues when we debate whether these clauses should stand part of the Bill at all, but at this stage, those are the matters that I wish to talk about. Therefore, I beg to move.

Lord McIntosh of Haringey: My Lords, I added my name to these amendments and I am glad to support the noble Baroness, Lady Miller. I spent nearly 20 years on one Front Bench or another, and during that time I never quite had the guts to say what I really thought about these issues. I never quite had the

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guts to quote Kenneth Tynan, who in a review of eastern erotic art said, “All my life I have enjoyed having erections, and I have been grateful to the people and the works of art that made them possible”. Now I have said it, and no one can accuse any political party of having any involvement in that.

Before I went on to any Front Bench, I was involved in the proceedings on the Video Recordings Bill 1983, which became the Video Recordings Act 1984. Three of us—Douglas Houghton, Hugh Jenkins and I—fought against that Bill all by ourselves and to no real effect. The starting point was that what we do in our homes—the possession of books or images—is no business of the Government or the courts. What we have on our bookshelves is still not their business, but something has encouraged Governments of both persuasions to think that what we may have in terms of video recordings or pornographic images on the internet, or whatever they may be, is the concern of government.

Of course, if any of those images involves the commission of a crime in their production, an existing law deals with that, which none of us can contest. This is not an argument for child pornography, for bestiality, for snuff movies or anything like that. No one is defending that and there is a perfectly good law to deal with it. Having said that, what does it matter to the Government whether what we have in our homes for our own purposes is for sexual arousal or not? What is wrong with sexual arousal anyway? That is not a matter for Parliament or government to be concerned about. I am opposed in principle to interference in the private lives of adults as long as what they do does not cause harm to anyone else, or arises from or causes any offence under criminal law.

I have a further objection, which the noble Baroness, Lady Miller, has eloquently brought out. We have had the Obscene Publications Act 1959 for nearly 50 years. In Committee, my noble friend Lady Kennedy said that, yes, there are problems with interpretation, but the courts during that period have successfully dealt with those problems and the wording of the Obscene Publications Act. This part of Part 5 introduces new definitions of obscene or extreme pornography, which cloud the agreement that generally has been reached in this country about what is obscene and what should be allowed. That is extraordinarily unfortunate. It is damaging to the interpretation of the law; to the confidence of people that the law understands the variety of emotions and feelings that there are about sexual matters; and to the reputation of the law itself.

I have no hesitation in supporting the noble Baroness, Lady Miller, in these amendments. I hope that the Government will go a good deal further than they went in Committee in recognising the validity of her arguments.

Lord Henley: My Lords, the noble Lord, Lord McIntosh, quoted Kenneth Tynan. I do not know whether he saw the interview with Doris Lessing in one of yesterday’s newspapers when she talked about an evening she spent with Kenneth Tynan, which ended with some remarks she made about whips. The

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noble Lord and I have both been Whips, but Kenneth Tynan and Doris Lessing were talking about a different sort of whip. If the noble Lord can find the appropriate newspaper, he might find that interview amusing to read.

I should like to add to what the noble Lord said, because I am coming at this from a similar angle, even if I do not necessarily arrive at the same conclusion. In Committee, I quoted the famous remark of Mrs Patrick Campbell more than 100 years ago, which I shall now quote properly in full. She said:

“It doesn’t matter what you do in the bedroom as long as you don’t do it in the street and frighten the horses”.

I think that most, or all, of us would agree with that. Our only problem is the definition of what frightens horses and what goes slightly too far.

At this point, I have to say that I am very grateful to the Minister, with whom I have had some discussions. He offered me the chance to look at a number of these films and no doubt the noble Lord will tell us more about that in due course. In what was possibly a cowardly manner, I did not take him up on his offer, and so I have left it to him to look at the films. However, I have read the Bill, which defines an extreme pornographic image as an image that is,

“(a) pornographic, and

(b) an extreme image”.

There follows a definition of the word “pornographic” which the noble Lord, Lord McIntosh, described as being something that causes sexual arousal. However, the extreme image is defined in subsection (6) as,

“(a) an act which threatens or appears to threatens a person’s life,

(b) an act which results or appears to result (or be likely to result) in serious injury to a person’s anus, breasts or genitals”,

and so it goes on. At this point it becomes slightly difficult. Having offered what I will call the Mrs Patrick Campbell definition of what we think is the right approach, I then said that I do not know what we define as that which frightens the horses.

I think that we want to hear more from the Government, and particularly about what the Minister and the Government consider to be extreme images, before we make a decision. As I understand it, the noble Baroness, Lady Miller, has put forward two options. The first option set out in the first group of amendments seeks to amend the Bill, and if that does not work, the second group would strike the whole lot out. As we implied in Committee, we want to hear more from the Government before we come to a view. I do not know whether it is appropriate, but the noble Baroness might want to come back at Third Reading, particularly as the noble Lord has now taken a look at some of the extreme pornographic things that he invited me to see. At that stage, and after hearing what the Minister has to say, the noble Baroness may want to consider these matters again.

The Earl of Onslow: My Lords, are we not facing the terrible problem of definition? Where you have a definition that says that an extreme pornographic image is an image which is,

“(a) pornographic, and

(b) an extreme image”,

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that is like saying a dog is a dog or a horse is a horse; it gets you absolutely nowhere.

There is a wonderful museum in Paris, the Musée d’Orsay, which is full of the most beautiful pictures. One of them was commissioned by the Turkish ambassador in around 1860. It is a close-up painting of a lady’s genitalia, and I believe it is called the Mother of the World—

Lord Faulkner of Worcester: “L’Origine du Monde”.

The Earl of Onslow: I thank the noble Lord. My bet is that the Turkish ambassador commissioned that painting for sexual arousal, and yet there it is, displayed in the Musée d’Orsay. Some Greek vases have pictures of Priapus on them. If Priapus was to do the things he is threatening to do, it is fairly likely, because of the size of what he has got, that they would result in serious injury to a person’s bits and pieces.

We are here in the problem of definition. The noble Lord, Lord McIntosh of Haringey, has said that surely it should be left in people’s bedrooms or on the television sets in their bedrooms. Actually, I do not see why someone cannot have a picture of a person having oral sex with a dead animal. It is the most extraordinary thing anyone would want to do, but I cannot see why that should be made criminal. It does not harm the animal because it is dead. The person concerned ought to be carted off in a collar and chain and put in the loony bin, but it does not do anybody any harm. Surely the whole point is that what we are trying to get at is undefinable. You probably know it when you see it, but you cannot define it, and statutes must be defined.

I have a final little story for your Lordships. Years ago I was asked by the noble Lord, Lord Alli, to introduce a programme on pop music. The programme was in six sections, and one of them was on porn rock. I refused to be in any way nice about it. I said that this has been going on for an awfully long time and I quoted Juvenal’s ninth satire, which states,

“an facile et pronum est agere intra uiscera penem legitimum atque illic hesternae occurrere canae?”

I would not have dared to quote that had Lord Hailsham still been on the Woolsack. He would have got very angry because it is incredibly obscene, but it is one of Juvenal’s ninth satires. All I am trying to say is how difficult these definitions are and how impossibly difficult it is to legislate for. I hope that we take out both these clauses.
9.45 pm

Lord Wallace of Tankerness: My Lords, I support the amendment moved by my noble friend Lady Miller. It was supported very robustly and eloquently by the noble Lord, Lord McIntosh of Haringey. There has been concern generally about the existence of these clauses in the Bill. As the noble Earl, Lord Onslow, indicated, there is the problem of definition. It is very unsatisfactory indeed if people are potentially going to be made criminals because they possess certain material. If we are having difficulty over the definition, Heaven help those who might

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suddenly find themselves at the wrong end of the criminal law because of a lack of understanding as to what the definition is.

It is with these concerns that we have tabled the amendments in the group. If there is going to be a crime established we want to try to get some definition into it. The amendment would make a requirement that the act being recorded, and which is then the subject of the pornographic image, should be one in which one or more of the persons engaged in that act are committing a sexual offence. “Sexual offence” is defined for the purposes of this clause to include offences which could be committed forth of the United Kingdom. One of the concerns mentioned in Committee was that many of these images are imported from outside the United Kingdom.

Clearly, if no sexual offence is being committed, it seems very odd indeed that there should be an offence for having an image of something which was not an offence. I can see nothing within the Bill that would stop a person having a picture of himself or herself engaged in that particular activity, which they would know was entirely consensual. Having engaged in it consensually would not be a crime, but to have a photograph of it in one’s possession would be a crime. That does not seem to me to make sense.

Amendment No. 86L, spoken to by my noble friend Lady Miller, which indicates that the definition should be imported from the Obscene Publications Act, again has considerable good sense attached to it. After all, in Committee, the Minister tried to indicate that it was important that the parallel was made with the Obscene Publications Act. Things were said about the difficulties and the challenges we face today because of the internet and because of electronic communication of images, difficulties which were not faced back in 1959. Notwithstanding that, I cannot see any reason for departing from the definition which, as the noble Lord, Lord McIntosh, said, has stood the test of time of some 50 years, and why we would suddenly have a different set of definitions simply because something might be downloaded from the internet.

Amendment No. 86PA seeks to bring in a defence. The defences in the Bill are very limited indeed. The amendment seeks to create an additional defence whereby a person believes that those involved in the material possessed actually consented to the participation. There may be difficulties in proving that in cases of mass produced pornographic images, but it certainly could be a very useful defence in cases of images of consenting couples or groups which have been made for their own use. It is not open-ended. There is a requirement that the belief must be reasonable. In all these circumstances, the restrictions and the greater definition which the amendments in this group bring forward help to improve the measure. As has been indicated, there is considerable underlying unease about the purpose of the clauses as a whole. I certainly commend the amendments as improving clauses which at the moment do not command sufficient confidence to enable them to become part of our criminal law.

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Lord Faulkner of Worcester: My Lords, I, too, expressed reservations about these clauses in Committee and took very much the same line as the noble Baroness, Lady Miller, did on that occasion. I looked carefully at the amendments that my noble friend brought forward and I said in Committee that I thought that they represented an improvement on what was there before.

I think that I am the only Member of your Lordships’ House who took up the invitation of my noble friend to visit Charing Cross police station to view some of what one might call the exhibits that underlie the Government’s thinking on this matter. A variety of adjectives comes to mind, such as “bizarre”, “unpleasant”, “distasteful”, even “repulsive”, but the images were not in any sense sexually arousing. At the end of the visit, I was left with the question whether their possession is so threatening to society that it is worth turning people into criminals and sending them to jail if they happen to have them on a computer screen at home or have obtained them some other way.

I suspect that, like me, many noble Lords have had a fair number of submissions on this subject from a variety of organisations. Some of them are very articulate and well argued. The main point that comes through was expressed by an organisation called backlash, which said:

“The proposals are still, despite the recent amendments, worded in such a way as to risk inadvertently criminalising hundreds of thousands of British citizens”.

It went on to say:

“Equally importantly, people will be deterred from exploring their sexual preferences for fear that their research may lead them into illegal territory which in turn can cause both distress and mental health issues as well as being a fundamental breach of their human rights”.

The point is also made by a number of these organisations that most of the scenes to which my noble friend introduced me at Charing Cross are not real scenes but are faked for the benefit of their creation or are the product of an entirely consensual activity, as the noble Lord, Lord Wallace, pointed out. I am at one with my noble friend Lord McIntosh and, I suspect, with the Minister in wanting to prosecute illegal activity that has taken place in order to create these images. However, if no illegal activity has taken place and we are concerned about merely the possession of the images, I really cannot imagine that any useful purpose is served by creating criminals out of the people who possess them.

My worry is that the wording of the Bill is still much too vague and could cover all sorts of light, consensual and safe imagery which many people enjoy and practise and which at present is perfectly legal but which as a consequence of these clauses will certainly become illegal. In Committee, I finished by asking my noble friend a question. I did not get an answer on that occasion and I therefore put the same question to him now. As a new offence is being created by these clauses, what will be the position of people who have already downloaded material on to their computers that until now has not been illegal but henceforth will be? Will the possession of that be regarded as a criminal offence and, if it is, what advice are the Government offering to help people to get rid

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of it? This is an important issue. This House cannot pass legislation that inadvertently turns people into criminals, particularly when the activity in which they are engaging is not doing anybody outside their own homes any harm.

Lord Monson: My Lords, I had not originally intended to speak on this group of amendments but, as a libertarian, I feel that I must support them, as I support Amendment No. 87A in the name of the noble Lord, Lord Waddington, and others. A few years ago there was a very famous Italian film. I am afraid that I cannot remember the title. Some of your Lordships may remember it. It won awards all over the world and was highly acclaimed. It was set in Italy in a peasant community about 50 years ago and one of the scenes showed an adolescent farm lad relieving his frustrations with a donkey, standing on a box in the middle of the field in order to do so. I saw this in a large London cinema that was absolutely packed because the film was so highly acclaimed. The audience tittered, as you might expect, but nobody was at all shocked or offended. The Government will argue that the film was not produced solely or principally for the purpose of sexual arousal and, indeed, that is the case. But suppose that somebody was to download that scene from the film on to a DVD and play it over and over again for their rather peculiar sexual tastes. That would be odd, no doubt, but should they really go to prison for such a thing?

Lord Cobbold: My Lords, I totally support the point of view so eloquently expressed by the noble Lord, Lord McIntosh. This House in particular should work hard to preserve the human right to do what one wishes in one’s own home that is not a threat to anyone else in the outside environment. I support this amendment and others coming.

Baroness Howe of Idlicote: My Lords, I, too, support these amendments. Almost inevitably we are going to have to go through the process of deciding whether what is described—what is attempted to be defined—is in fact effective at all. This is a preliminary attempt to do that. The far more important issue will be what we do about all these clauses. In my view, we need a far harder and deeper look at these issues than we are able to give them in this Bill. That is for the later part of the debate. In the mean time, we shall all be interested to hear what is said. I share everybody’s view that, if what is going on in one’s own bedroom is legal, so long as it is not frightening the horses—or whatever phrase you want to use—it may even be doing some good, but we can discuss that later.

Baroness Butler-Sloss: My Lords, I do not like pornography. I was never allowed to read Juvenal’s satires as a child. Child pornography is abhorrent and is rightly censured throughout the world. But I cannot see the point of Clause 63 and subsequent clauses and I do not understand why the House is being troubled with them.

Lord Thomas of Gresford: My Lords, judgment tends to go out of the window when we deal with matters in this area. I recall many years ago prosecuting a lady in Caernarfon Crown Court for the murder of

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her husband. The judge was a recently appointed High Court judge, a commercial lawyer by training, and the lady received probation when she pleaded guilty to manslaughter on the grounds of provocation. The next case involved attempted bestiality, so I know a little bit about it in court. That involved two Welshmen and sheep. However, the Welshmen were drunk at the time and the sheep were not violated. That is why it was charged as attempt. The judge who had given the lady probation for killing her husband proceeded to sentence these two to 12 months’ imprisonment immediately. They went to the Court of Appeal. They were given immediate bail and eventually the case was disposed of by the appeal court on the basis that it was stupid to have brought the case in the first place.

What is this provision in the Bill about? Is it an attempt to punish people for having extreme pornography in their possession or is it an attempt to discourage the commission of acts that we might disapprove of and are contained within the extreme pornography? If you cannot sell a picture or a film or a video, presumably the thinking is that there is no point in such acts taking place in the first place. One has this dilemma: if those acts are not criminal in themselves—a matter to which my noble friend Lady Miller and other noble Lords referred—punishing a person for having pictures of them seems rather silly.

That is what these amendments are about. That is why we on these Benches seek to put into the clause a condition that the act that is shown is criminal. If it is not criminal—if it is consensual—where is the harm? One has to be clear about what one is seeking to punish. What is the motivation? Is it distaste for people watching pornographic films or is it an attempt to discourage illegal conduct? We would go along with an attempt to discourage illegal conduct but not with an attempt to discourage consensual sex that takes place between two people in whatever form it may be. I share the distaste for pornography expressed by many noble Lords. As a classical scholar, I fully understood the depths of obscenity to which the noble Earl descended. I do not see that that is any reason for maintaining this clause in its current state. I respectfully urge on your Lordships that the amendment be accepted.
10 pm

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Hunt of Kings Heath): My Lords, this has been a very interesting debate. I think that the noble Baroness, Lady Miller, said in her introductory remarks that she accepts some of the spirit behind the Government’s legislative proposals, but clearly there is concern about the way in which they have been drafted. I very much understand the point made by my noble friend Lord McIntosh, to whom it is a great pleasure to respond. He spoke of being aware of legislation that seeks to intrude too much into the individual lives of people where, as he said, harm is not caused to others. I very much understand the concerns expressed by noble Lords. The noble Lord, Lord Henley, said that it is all right unless it frightens the horses. I do not know about the horses, but the material that I saw at Charing Cross police station certainly frightened me.

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While I accept all the concerns expressed by noble Lords tonight, I would also put the other point of view, which is that there is large and genuine public concern about extreme pornographic material, particularly since the growth of the internet, which has allowed existing controls on publication distribution under the Obscene Publications Act to be circumvented. There is also concern about the adverse influence that that material might have on those watching it. It is not simply material that potentially causes arousal. The tests that have to be applied are, I suggest, high tests. There are three elements that have to be met for someone to be found guilty of the new offence. First, material has to be pornographic; then, it has to be concerned with extreme acts, which are described as threatening a person’s life or as resulting or being likely to result in,

“serious injury to a person’s anus, breast or genitals”.

It also has to be,

“an act which involves sexual interference with a human corpse”,

or an act concerning,

“a person performing an act of intercourse or oral sex with an animal”.

Those acts must be “explicit and realistic”; persons and animals depicted must be such that “a reasonable person” would think them real. The third element of the test is that it must be,

“offensive, disgusting or otherwise of an obscene character”.

That is why many of the examples raised in our debates about works of art simply would not meet the tests described in the Bill.

Baroness Falkner of Margravine: My Lords, the Minister said that, when he went down to the Charing Cross station, some of the material that he saw certainly succeeded in frightening him. Would he go beyond that and say that it affected him in a manner where he felt that he might commit violence following on from viewing those acts? If I understand the Government’s rapid evidence assessment—it was, as we know from the Committee stage, a highly contested exercise—there was conflicting and contested evidence as to whether simply viewing some of these acts would lead anyone to go out and violently commit those acts themselves against people.

Secondly, the Minister comes to the tests. He uses the words “graphic” and “realistic”. Does he accept that much of the material is produced by consenting adults—much of it may well have consensual acts in its production—and may comprise a great deal of acting? Would he not agree that in acting one may project an image that is threatening or violent, or whatever, in order to be fantastical, and that that is perfectly fine in areas of art? It is rather odd that he uses such tests in this area and says that these tests therefore have a high threshold. Drama is, indeed, about simulating death and many other things. Might the Minister be able to explain that?

Lord Hunt of Kings Heath: My Lords, I was trying to explain that there are three elements to the offence. In our two debates, noble Lords have quoted or

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referred to certain works of art and suggested that they would be caught; I suggest that none of the examples quoted would be, because those three elements of the test would not have been met.

The noble Baroness asked whether, having viewed these images at Charing Cross police station a couple of weeks ago, I then felt violent or that I would indulge in some offence. I actually felt very sick, because they were pretty disgusting images, and I frankly find it horrific that they are available and that people can see them. I am sorry, but I do not take this very liberal approach of “If it does no harm to the people taking part, why should we worry about it?” I do worry about it, and about the access that people have to that kind of disgusting material. I am afraid that is my position.

The Earl of Onslow: My Lords, were the acts that the Minister saw in those videos in themselves illegal? That question has been asked frequently in this debate. Were the people doing these things—and I concede that they were obviously disgusting—doing disgusting legal things or disgusting illegal things?

Lord Hunt of Kings Heath: My Lords, I think that the answer is that some would be covered by offences in this country and some would not, but they were all disgusting. I suspect that we will, in the end, have to come to a value judgment on this matter. Frankly, I want to discuss why the Government would have difficulty with the amendments, and the House will then no doubt want to take a decision on that view—either today or at another stage.

Clearly, the effect of the amendments that the noble Baroness, Lady Miller, has put forward is to add an additional element to the offence; namely, that the image concerned depicts an actual sexual offence. In order to come within the terms of the offence, an image would have to depict a specified extreme act in an explicit and realistic way. As a consequence, only graphic and convincing scenes would be caught. To go further than that and to require that the image is a record of a sexual offence being carried out would make the clauses more or less inoperable for two reasons. First, the issue with most extreme pornography is not that a sexual or any other offence may or may not have been committed. As I said, much of the material that I saw, which has been found by the Metropolitan Police, might be prosecuted under the Obscene Publications Act, but would not satisfy a test that a sexual offence had been committed. The proposed amendment would render the offence inapplicable in respect of such material. I do not run away from this because the point was made by the noble Lord, Lord Thomas of Gresford, in his intervention. We are targeting that material not on account of offences which may or may not have been committed in the production of the material, but because the material itself, which depicts extreme violence and often appears to be non-consensual, is to be deplored.

Secondly, the other problem is that if there were a suspicion that a sexual offence had taken place, that would be pursued by applying the existing criminal law here. However, it is far more likely to have been

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produced in other countries and part of the problem that we face is mainly because of the internet. Often it applies to a different jurisdiction. To make a prosecution for possession of the image contingent on the prosecution first, determining from that image whether or not a sexual offence had taken place, and secondly, obtaining the necessary evidence and witnesses to prove the elements of that offence beyond a reasonable doubt, would be to make such a prosecution all but impossible. As I said, most of the extreme pornography is produced outside our own jurisdiction.

The noble Baroness has tabled amendments in the second group that would remove the offence altogether. The advice that I have received is that the amendments in this group would create almost the same impact. Amendment No. 86PA would create a new defence applicable where the defendant reasonably believed that no one portrayed in the image concerned was coerced. I am aware that the noble Lord has concerns about individuals who keep a record of themselves freely and willingly participating in bondage, domination, submission and sado-masochistic practices in which no unlawful harm occurs. I recognise that it would be anomalous for a person to be committing an offence by possessing an image of an act which he undertook perfectly lawfully. We intend to introduce at Third Reading a defence which addresses precisely that situation.

Noble Lords will have to apply a value judgment to this issue. I take them back to the elements of the offence. This is not intended to catch the kind of art to which noble Lords have referred. The three elements of the test ensure that it is only this extremely nasty pornography that in no circumstances could be counted as art, which will be covered. As a society we have a duty to protect people. It is appalling that this material is available and we have to do something about it.
10.15 pm

Baroness Miller of Chilthorne Domer: My Lords, I thank those who have spoken, particularly the noble Lord, Lord McIntosh, who set a tone of bravery for this debate, which is to be applauded. I am surprised that the Minister did not make anything of the Government’s attempt, with its rapid evidence assessment, to link this violent pornography, as he did in Committee, with the fact that people were then more likely to commit criminal acts. Pushing this was one of the Government’s weakest suits, so perhaps it is not altogether surprising that he did not refer to it this time. In the debate we have just had, the issue of whether we are talking about violence or sexual arousal is still confused. The right reverend Prelate the Bishop of Chester was useful in Committee when he applauded the Government’s attempt to get to grips with this issue, but shared a feeling with the rest of us that things are not right. I cannot find his exact quote at the moment.

My brief experience in your Lordships’ House tells me that this number of amendments linked together usually means that the legislation is in difficulty. That is still where we are. The Government have two things going on here. One is that they have a rapid evidence assessment that they used originally, in Committee, to back up their argument that people must be prosecuted

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and receive heavy prison sentences—of five years—for even viewing this sort of material, because by viewing it they were far more likely to commit violent offences. I do not want to stand here as an apologist for people who commit those sorts of offences against women. I feel very strongly that we need to stamp down on that sort of violence, but it is the violence that should be addressed, not the sorts of issues that the Minister has just been talking about. We are talking about somebody viewing something in the privacy of their own bedroom, even if those images are violent. I agree with the Minister that society has a problem, but how often has he watched television after 11 pm? All the free-to-view channels are absolutely stuffed with sex and violence that anybody can watch. While it may not be as extreme—

Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Baroness. That is the point that she was just coming to. We are talking here about extreme pornography. I extend a warm welcome to noble Lords to view this material and see what we are talking about. It is important that we understand that.

Baroness Miller of Chilthorne Domer: My Lords, if we followed the Minister’s invitation we would have to experience every single thing that we legislate about in this House. That is not a principle that we have ever tried to follow, although maybe we should.

Noble Lords: That is reasonable.

Baroness Miller of Chilthorne Domer: My Lords, the noble Baroness says that it is reasonable but the noble Lord, Lord Faulkner, who agreed with my amendments, went to Charing Cross to view it and still comes to the same view. If that is the feeling of the House, perhaps we should all see the material before Third Reading, but I do not think that we will change our view. The Government’s contention is that by viewing it people are more likely to commit violent offences. Therefore, they justify walking into people’s bedrooms and turning them into criminals simply for viewing something.

Lord Hunt of Kings Heath: My Lords—

Baroness Miller of Chilthorne Domer: My Lords, can I finish my point? I am sorry to provoke the Minister so much, but that is dangerous ground, and the Minister is in danger of leading his Government into becoming the thought police.

There is no direct connection with committing a crime. If the Minister was able to concede that we should tie it in to the Sexual Offences Act, which he is resisting, or the Obscene Publications Act, which he is resisting, I would feel far more sympathetic, but he is resisting all those connections. That is a great pity.

I will confine my final comments on the rapid evidence assessment to when we come to the clause stand part debate, and I will want to test the opinion of the House then. The Minister has not really answered

21 Apr 2008 : Column 1361

any of the issues that have been worrying your Lordships this evening. In light of the fact that the Minister has made absolutely no concessions at all to the next group of amendments, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 86K to 86M not moved.]

Baroness Miller of Chilthorne Domer moved Amendment No. 86N:

Clause 63, leave out Clause 63

The noble Baroness said: My Lords, I shall not at this stage rehearse any of my earlier comments. However, as the Minister has not accepted any of my amendments in the last group, which would have substantially improved the Bill, or even conceded that the Government would come back with anything beyond the one issue he mentioned, I have no option but to move this amendment.

One substantial difficulty that I have had with the rapid evidence assessment that the Minister sent me between Committee and Report is that I discovered in reading it that an awful lot of the assessed evidence was produced before the internet was even widely available. Worse, however, is the fact that one of the assessors was one of those who wrote some of the research paper. That is particularly reprehensible. I have had communications with 40 academics, apart from the interest groups who obviously have an interest, who are deeply worried by the Governments’ position. Therefore, in light of the informed comments of your Lordships on the previous group of amendments and the failure of the Government to move anywhere on this, I beg to move.

Lord Hunt of Kings Heath: My Lords, I am not sure whether the House wishes me to go over the ground again, or whether the noble Baroness wishes to test the opinion of the House. All I would say on the REA is that the noble Baroness will know that we think that its conclusion supports the existence of some harmful effects of extreme pornography on some of those who access it.

I think it is plain common sense that when people continuously use some of these revolting images it has an impact on their behaviour. That would not surprise me at all. I know that there has been a debate over the years on the impact of violence on television. I know that some research has shown that it has so impact at all. That is obviously baloney; absolute nonsense! I agree with the noble Baroness when she referred to the post-11 o’clock TV. I am afraid that the workload of your Lordships’ House is so great that I can never stay up that late, but I understand what the noble Baroness says. Do I believe that that has a negative impact on people’s behaviour? Yes, I do, and I wish that we did not have to see it. Of course, there is always a balance to be drawn. I am sure that my noble friend Lord McIntosh utterly disagrees with me.

Lord McIntosh of Haringey: I do, my Lords.

21 Apr 2008 : Column 1362

Lord Hunt of Kings Heath: My Lords, my noble friend does. That is why I suspect that, in the end, it comes down to personal conscience and I welcome the opportunity for the noble Baroness to put this to the test.

Lord McIntosh of Haringey: So the Whip is off.

Baroness Howe of Idlicote: My Lords, I was not aware that we were not going to debate this second issue. I was certainly reserving a number of my remarks for the second group of amendments. Does the fact that the Minister has replied mean that there is no opportunity to debate what we have before us rather more fully?

Lord Henley: Yes, my Lords, it does.

Baroness Miller of Chilthorne Domer: My Lords, I regret that the noble Baroness, Lady Howe, has not been able to play her extremely useful part. I know one of the points that she would have made, so, if I may, I will say it for her. We asked in Committee for a far more measured look at these issues, particularly violence, and their effect, perhaps through a Joint Committee of both Houses. We said that this was not something to be stuffed into a Bill in a small way like this. The Minister and I are clearly never going to agree on the fact. It is a matter not of personal conscience but of evidence. If we do not have any evidence to intrude on people’s lives, I do not make an apology. A liberal point of view is that we should not do so unless there is evidence of harm. Common sense tells us that the Minister is on weak ground because his own assessment has not produced any evidence. I could read the conclusions, but your Lordships can read them: it is the weakest summary of conclusions I have ever read anywhere. It makes no final conclusion at all on a link. I do not believe that we are going to agree tonight, so I beg leave to test the opinion of the House.
10.25 pm

On Question, Whether the said amendment (No. 86N) shall be agreed to?

Their Lordships divided: Contents, 30; Not-Contents, 66.

Resolved in the negative, and amendment disagreed to accordingly.
10.37 pm

Clause 64 [Exclusion of classified films etc.]:

[Amendment No. 86P not moved.]

Clause 65 [Defence]:

[Amendments Nos. 86PA and 86Q not moved.]

Clause 66 [Penalties etc. for possession of extreme pornographic images]:

[Amendment No. 86R not moved.]

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