Lord Hunt’s proposed participation in consensual acts defence was agreed at the House of Lords on 30.04.2008 during the Third Reading debate for the Criminal Justice and Immigration Bill.

Lord Hunt of Kings Heath moved Amendment No. 14:

14: After Clause 64, insert the following new Clause—

“Defence: participation in consensual acts

(1) This section applies where—

(a) a person (“D”) is charged with an offence under section 62, and

(b) the offence relates to an image that portrays an act or acts within paragraphs (a) to (c) (but none within paragraph (d)) of subsection (7) of that section.

(2) It is a defence for D to prove—

(a) that D directly participated in the act or any of the acts portrayed, and

(b) that the act or acts did not involve the infliction of any non-consensual harm on any person, and

(c) if the image portrays an act within section 62(7)(c), that what is portrayed as a human corpse was not in fact a corpse.

(3) For the purposes of this section harm inflicted on a person is “non-consensual” harm if—

(a) the harm is of such a nature that the person cannot, in law, consent to it being inflicted on himself or herself; or

(b) where the person can, in law, consent to it being so inflicted, the person does not in fact consent to it being so inflicted.”

The noble Lord said: My Lords, during our debate at Report, I said that the Government intended to address the concerns expressed by the noble Lord, Lord Wallace, and others, about individuals who keep a record of themselves freely and willingly participating in bondage, domination, submission and sadomasochistic practices in which no unlawful harm occurs. We recognise that it would be anomalous if participants in perfectly lawful acts were to be at risk of prosecution for possession of images portraying those acts. We have introduced an amendment which creates a new defence of participation in acts in which no unlawful harm occurs. The defence will apply in respect of images which meet the very high threshold for the offence. The defence will not apply in respect of bestiality images or necrophilia images which involve a real corpse.

In respect of other material, it will be a defence for a person to prove, on the balance of probabilities, that he or she directly participated in the act or any of the acts portrayed and that the act or acts portrayed did not involve the infliction of any non-consensual harm on any person.

The defence that we are proposing does not amend the law in the wider area that was set out in the House of Lords case of R v Brown—a decision that the European Court of Human Rights found not to be an infringement of Convention rights. However, the defence is constructed so that, if the law on that point should change in the future, the defence would not move it. I hope that this defence will give reassurance to those who participate in legal and consensual acts of which they wish to keep a photographic record. I beg to move.

The Earl of Onslow: My Lords, when members of the Joint Committee on Human Rights were told that the Minister was going to move this amendment, we all said, “Yippee” or words to that effect, so I would like to thank the Minister for going as far as he has. There is a question of moving millimetres rather than metres, but one must be thankful for small mercies; on behalf of the Joint Committee, I would like to say, “Thank you for the millimetres”.

Lord Wallace of Tankerness: My Lords, I raised these matters in Committee and at Report and I also want to express appreciation for the amendment introduced by the Minister, which addresses the issue of someone having a record of his or her participation in a consensual act. The noble Earl, Lord Onslow, is right that it is millimetres rather than metres. As I understand it, a person may have a photograph and although he himself is not present in the photograph, he could lead witnesses to establish that the act was consensual. But that defence will not be open to him. I regret that that is an issue that will come up in a court case and show again the fundamental misgivings that many of us have about these clauses as a whole. Nevertheless, it is only appropriate to acknowledge where a step in the right direction has been made and I am grateful to the Minister for that.

Lord McIntosh of Haringey: My Lords, it would be discourteous for me not to join in. I rather liked word “chinkette” used by the noble Earl, Lord Onslow. This is something rather than nothing and we are modestly grateful.

Lord Hunt of Kings Heath: My Lords, I am overwhelmed by the modest gratitude of the House.

On Question, amendment agreed to.

Clause 65 [Penalties etc. for possession of extreme pornographic images]:

[Amendment No. 15 not moved.]

Lord Hunt of Kings Heath moved Amendment No. 16:

16: Clause 65, page 52, line 8, leave out “depict” and insert “portray”

On Question, amendment agreed to.