30.04.2008
Criminal Justice and Immigration Bill
Read a third time.

Clause 62 [Possession of extreme pornographic images]:

Baroness Miller of Chilthorne Domer moved Amendment No. 13:

13: Clause 62, page 49, line 31, leave out paragraph (b) and insert—

“(b) is obscene as defined by section 1 of the Obscene Publications Act 1959 (c. 66) (test of obscenity).”

[This amendment was defeated after a lengthy discussion and not agreed to]

The noble Baroness said: My Lords, there are many things in these clauses about extreme pornography with which we on these Benches remain deeply unhappy. On Report, the Minister did not explain why he could not move at least a little nearer the Obscene Publications Act 1959. Linking these clauses to that Act would have made the measure more objective, and less subjective, and would have had the other strength of targeting the producers of such material rather than the end user. It would target those who are making vast amounts of money out it.

In Committee, the noble Baroness, Lady Kennedy of The Shaws, had a suggestion, but the Government did not take up, to make it illegal for credit card companies to allow the spend on extreme porn sites. I thought that was a constructive suggestion that the Government had not chosen to pursue.

The other reason to link these clauses to the Obscene Publications Act is that that is a tried and tested definition in court. It talks of material that tends to “deprave and corrupt” as opposed to “extreme”, which the Minister admitted at Report stage is a very subjective judgment. It is something that he does not like.

I appreciate that the Minister feels that “deprave and corrupt” is old-fashioned language and not suitable, but it has stood the test of time in court for printed material and it addresses what the Government say they are trying to do with these clauses. The Government want to stop people becoming depraved and corrupted and therefore more likely to commit criminal acts. I will come back to whether there is enough evidence of that—and I will contend that anyway. The legislation as drafted does simply allows the word “extreme”. Although the Bill defines that word, when a case comes to court it is going to give juries a great deal of difficulty when they start to look at it in any detail.

The legislation allows the police to pick up someone watching this material before they commit any crime, before they actually cause any harm to another person. The Government may be right that the person might have gone on to commit such a crime, but often they may be arresting somebody who has strange tastes, ones we might find repugnant, but who is never going to harm anyone else and is no threat to society. Their life is likely to be ruined by the subsequent court case, even if it fails or if the accused is successfully produces one of the defences. That is truly the domain of the thought police. These clauses are the state entering the bedrooms and minds of citizens before they commit any crime that involves harm to another human being.

I know that the Minister will again quote the evidence. However, the academic world is not of one voice on the effects of this material. A number of academic studies quoted by the Minister show that extreme pornography may affect violent criminals—people who had criminal intent in the first place. On the other hand, he could have chosen to quote from Professor Todd Kendall who presented his paper to Stanford Law School. It showed that as the United States brought in access to the internet at a different rate in the 50 states—not intentionally—a 10 per cent increase in internet access yielded a 7.3 per cent decrease in reported rapes. The purpose of quoting that is to show that different academic studies show different things.

I now turn to Amendment No. 15, which concerns the tariffs. Will the Minister explain why the tariffs are as they are for simply watching an act, when committing the act results in a lesser or equal tariff? Surely it is much worse to commit an act under the Sexual Offences Act than to watch it on the internet. I want also to ask him about the guidance that he will issue to the police. How on earth are the police going to enforce this law? Will it be by random raids on people’s bedroom, by reports from neighbours or by trawling through hacked internet access? Policing this area will be a nightmare when it comes to otherwise law-abiding citizens watching alone or with their partners things that we may find distasteful or even disgusting. This affects an awful lot of British citizens. I have no way of telling whether extreme or just ordinary pornography is involved, but internet service providers estimate that about £1 billion a year is spent on pornography. That is either 1 million people spending £100 or—my maths is failing me. Anyway, it is a lot of people.

There is another route that the Government could have chosen to take that might have been very constructive. It would have been to set up a government website that allowed the reporting on non-consensual abusive acts, slightly along the lines of Crimestoppers. That would have allowed users to report anything truly criminal or suspect and would have led to the arrest of genuine sexual offenders from whichever country they originated. That idea could be put into practice and would be very cost-effective.

We feel that the Government have gone down a number of wrong routes with this Bill, and that is we why we have tabled this amendment. I beg to move.

Lord McIntosh of Haringey: My Lords, I apologise to the noble Baroness, Lady Miller, for not putting my name to Amendments Nos. 13 and 15 in time. My opposition to these clauses is undiminished. I listened carefully to the reply that my noble friend Lord Hunt made in the debate on Report. He spoke with great passion and sincerity, and I admire him for that, but unfortunately the quality of his arguments did not match up to the passion and sincerity with which he made them.

This is fundamentally about an intrusion in the harmless private lives of ordinary citizens in this country. On Report, I spoke about the Video Recordings Act 1984. I did not repeat one of the juiciest pieces about it. Until that time, we had a British Board of Film Censors, which was not a censorship board. It classified films, and if it refused to classify them, they could still be shown with the permission of local authorities. The Video Recordings Act 1984 changed the board from being a classification board to being a censorship board because if a video recording was not approved by the board, it could not be shown at all. From being a classification board, it became a censorship board, but its name changed from being a censorship board to a classification board. George Orwell would have been proud.

I am enthusiastic about Amendment No. 13 because it seeks to get round the horrible situation which the Government are putting us in by adding an extra gloss to the Obscene Publications Act 1959. I would support the noble Baroness, Lady Miller, if she chose to divide on that.

I am less enthusiastic about Amendment No. 15, not because it is not right in itself, but because I simply do not believe that any jury will convict a citizen of this country for possessing what it is not illegal to produce. The noble Baroness, Lady Miller, gave the reason of needing inspectors with the right of entry to people’s homes, sitting rooms, bedrooms, video machines and DVDs. Is that really what the Government are proposing? There is no other way of enforcing it. If they succeed in doing it, however they succeed in doing it, what jury is going to convict people for possessing what it is not illegal to produce? The Government, despite all the sincerity of the noble Lord, Lord Hunt, have failed to answer any of these arguments.

Baroness Howe of Idlicote: My Lords, I am very pleased indeed that these amendments have allowed one to have another look at this whole area, because it was a mistake not to have allowed us on Report to discuss a similar route to the one agreed for the clauses dealing with sex workers for the clauses in this Bill about extreme pornography. In other words, they should be taken out of the Bill. I hoped that your Lordships would have had an opportunity to debate both sides of the concern that lay behind those amendments.

The human rights aspect was rightly aired. However distasteful to many, including myself, if people choose to watch extreme or kinky pornography in the privacy of their own home, and that is not breaking the law, the state should not be involved. It was argued by the organisation backlash, among others, that this law as currently drafted is likely to criminalise hundreds of thousands of people who use violent pornographic images as part of consensual sexual relationships. It also argues that some of the RAE research was inaccurate and biased. The other, equally important, concern is whether extreme pornography could be harmful, in the sense of generally brutalising, to citizens. I am reminded of when I was asked to watch an experiment at the LSE with two groups of undergraduates. One group watched some rather violent material, and the other was shown, gradually, up to a point, fairly placid stuff. At that point, they were both shown some pretty violent stuff. The first lot, who had got used to seeing what they were shown—rather more violent stuff—did not react at all, while the other group was horrified. That is quite important.

Of far greater concern, as has been mentioned, is the possible effect on sick or vulnerable people who might fantasise about what they are viewing and go on to commit violent crime against members of the public. That was argued forcefully in the other place by Martin Salter MP, quoting the case of Jane Longhurst. In most cases, as we know, these offences are committed against women. Both areas of concern combine to make a strong case for a far more professional look at this whole subject, not least in view of the growing use of the internet, and other forms of IT equipment, to access this kind of extreme material, and the lack of any significant powers for Ofcom to intervene.

As one who, in the 1990s, when chair of the Broadcasting Standards Commission, had responsibility for monitoring the early days of pornography, I have absolutely no doubt of the huge growth in both the quantity and the extreme nature of today’s material. No doubt, if we had followed the Minister’s advice and gone to the police station to see the evidence that he had to endure, that would have graphically confirmed my view.

Despite the proposal that I had hoped to make earlier—that, like the clauses on prostitution, these extreme pornography clauses could be referred for further expert study and not form part of the Bill—I still urge the Minister and the Government to establish an expert commission or Select Committee to take evidence and examine this whole area in far greater detail. It is a growth area of citizen concern which will not go away.

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Lord Monson: My Lords, as I indicated on Report, I broadly support the Liberal Democrats and the noble Lord, Lord McIntosh, on this matter. However, one thing puzzles me about Amendment No. 15: it does not allow for a fine to be imposed on conviction or indictment, unlike the clause as it stands. The overcrowding in our prisons will not be ameliorated at any time in the foreseeable future. It seems to be a defect that there is no possibility of a fine in that case.

Lord Thomas of Gresford: My Lords, on Report, I asked the Minister the purpose of this new offence. Was it to discourage criminal sexual acts being filmed, or was it to discourage people from watching porn? The Minister’s answer was something of a surprise: he wished to criminalise the gratification of the individual in watching pornography in the privacy of his own home. That is one thing, but it seems completely illogical to make that a more serious offence than the act which—if it is criminal—the individual is watching. I ask the Minister to reflect on whether he can in any form of logic maintain his opposition to these amendments.

Lord Faulkner of Worcester: My Lords, I was not intending to speak but I want to add my support for what the noble Baronesses, Lady Miller and Lady Howe, and my noble friend Lord McIntosh have said in this short debate. From Committee stage onwards we have been consistent on this issue. I very much appreciated the support that the noble Baroness, Lady Miller, gave me in my efforts to remove the street offences clauses at an earlier stage, and I very much commended my noble friend Lord Hunt for agreeing to do that. It is a great pity that he has not taken these clauses out as well. With the greatest respect to him, he has not made the case that they are necessary, workable or desirable. As my noble friend Lord McIntosh said, he made a brilliant speech on Report, full of passion and full of commitment; but his main point and main argument in favour of these clauses was that it is necessary to satisfy the public demand, because the public do not like what they think is available. They do not know quite what is available but they do not like it and the law, therefore, must make it impossible for it to be accessed.

My worry is that if you adopt laws on that basis, you will finish up with something that is unworkable. As my noble friend Lord McIntosh said, it is almost impossible to imagine that a jury will convict someone on the basis of viewing an activity, the activity itself not being the subject of a criminal act. I think that the law will be brought into disrepute if the Government persist. I, too, support the noble Baroness, Lady Miller. I commend her courage and honesty and the way in which she has campaigned on this through three stages of the Bill. I hope she does not give up.

The Earl of Onslow: My Lords, first, I must apologise to your Lordships for arriving slightly late for this amendment. I, too, support it. I feel that the Government are doing their old-chum gesture politics. They are “sending a signal”. That is a very bad basis for passing laws. We know that this is not unique to this Government. I can almost guarantee that after the next general election, when I might be sitting on that side of the House and other Members might be sitting on this, I will make exactly the same criticism of an incoming Conservative Government. It is a habit which Governments find it irresistible to resist. But the logic of what the noble Lord, Lord McIntosh, and the noble Baroness, Lady Howe, said, and the expressed views of the Joint Committee on Human Rights, on which I have the honour to sit, support that position. Even with the concessions coming in the next clause, it is an awful pity that this amendment will not be agreed to.

Baroness Butler-Sloss: My Lords, for the reasons that have been given by a number of other noble Lords, I, too, urge the Government, even at this late stage, to rethink these clauses. The provision is potentially unworkable. In view of the advantages of the noble Baroness’s amendment, I very much support it.

Lord Hunt of Kings Heath: My Lords, I also am grateful to the noble Baroness, Lady Miller, for allowing us to come back and debate this important matter. The principle was decided on Report, and this debate has in a sense been a rerun of that debate on principle. That is fair enough. I fully understand the probing nature of the noble Baroness’s amendments.

I very much accept the point made by the noble Baroness, Lady Howe, and endorsed by my noble friend Lord Faulkner, that this is but one element of a number of matters in this area. The noble Baroness has eloquently argued for a Select Committee of this House to look at these issues in general. Although that is always a matter for the House itself, I am sure that the Government will always co-operate and be happy to give evidence to any such initiative that the House takes forward. She might then say, “Well, you ought to take this away until the investigation has been completed”. She will know that I am reluctant to do so. However, I take her point that some substantive issues need to be discussed, including those issues on prostitution.

The Earl of Onslow: My Lords, in the Minister’s comments one suddenly sees a chinkette of light. In those circumstances, will he ask, through the usual channels, for a Select Committee? He shakes his head in the wrong way. Perhaps I shall take rather less notice of his charm on this issue than I thought that I should.

Lord Hunt of Kings Heath: My Lords, the noble Earl is always tempting me down paths I ought not to go. It is not for the Government to suggest to Parliament what it ought to do in matters governing its own affairs. If I were to do that, I would be out of order. I recognise that the noble Baroness, Lady Howe, has expressed a legitimate concern that many issues around sexual behaviour need to be addressed. All I was saying is that this is entirely a matter for this House. However, there are ways in which we may debate these matters: in Thursday debates, in Questions for Short Debate, or, if the House authorities agree, by setting up a special Select Committee.

As noble Lords will know, there was a great deal of controversy over the authorities’ decisions on a number of proposed Select Committees. Noble Lords will remember, for instance, the arguments over whether there should be a Select Committee on the Barnett formula. My noble friend Lord Barnett, who is not present today, would remember. I am simply saying that I recognise the point raised by the noble Baroness. These are important matters and Parliament has an important role in discussing them.

Baroness Howe of Idlicote: My Lords, I am most grateful to the Minister for giving way and for what he said. However, I should hope that is a matter of concern for both Houses and that a Joint Committee can therefore be set up.

Lord Hunt of Kings Heath: My Lords, that takes me down even more dangerous paths by asking me as a Minister to suggest what the other place should do. But I take the noble Baroness’s point.

I thank my noble friend Lord McIntosh for his kind remarks, although he went on to say that he did not think much of my arguments. I was interested in his recollection of the great days of local government, when it had a role in deciding whether films could be shown in a local authority area. As a member of Oxford City Council in the 1970s I well recall Alderman Fagg chairing a sub-committee of the estates committee which viewed these films on Monday morning at 10 o’clock. I confess that we debated these matters and that I argued that there should be no censorship of any film and it was all unnecessary. Well, I have changed my mind. The noble Lord, Lord McIntosh, has not. He has been a model of consistency over many years on these matters.

Over the past few days I have received many e-mails from many organisations. I understand, of course, my noble friend’s concern about unnecessary intrusion into harmful activities in people’s own bedrooms. However, we are not talking about what might be described as the routine pornography which I am sure accounts for much of the billion pounds and the—as the noble Baroness suggested, though I am not sure how many people—million people; we are talking only about extreme or violent pornography. I want to make that clear.

The noble Baroness asked me to explain in detail why the Obscene Publications Act and its definitions were not used in the formulation of this clause. This legislation has been proposed because the controls in the Obscene Publications Act are much more easily evaded these days by the use of modern technology, namely the internet, which makes it much easier to use and distribute and therefore easier to possess. As most such extreme material is hosted abroad, controls on publication and distribution are no longer sufficient.

Lord McIntosh of Haringey: My Lords, I am sorry to interrupt the Minister. The issue is not about the controls. The issue is about the definitions. The definitions in the Obscene Publications Act have worked for almost 50 years. Changes in the difficulty of control do not affect that argument at all.

Lord Hunt of Kings Heath: My Lords, I do not think I was arguing that. I was trying to answer the first question posed as to why we are bringing forward this legislation at all. The second question, relating to the noble Baroness’s first group of amendments, is why we have not used the Obscene Publications Act. Her amendment removes the element of the offence which requires that an extreme pornographic image depicts an extreme image and replaces it with a reference to the definition of “obscene”; namely, the “deprave and corrupt” test, which, as she says, is found in Section 1 of the Obscene Publications Act 1959. Her amendment also has the effect of rendering redundant subsections (6) and (7). Those subsections set out the,

“grossly offensive, disgusting or otherwise of an obscene nature”,

test and the list of extreme acts. The amendment has the effect of opening up the offence to all obscene pornography. It would no longer be limited to certain specified depictions of threatening, violent, bestiality or necrophilia images. The noble Baroness may wish to consider the implications of that when she comes to wind up.

My officials and the department, when considering this matter over the months that it has taken to prepare the Bill, saw the initial attraction of linking this possession offence to the existing publication offence. Under the Obscene Publications Act, whether material is obscene depends on whether it would deprave and corrupt those most likely to read, see or hear it. That “deprave and corrupt” test works by reference to the likely audience. In the context of possession there is no audience. Directly importing the deprave—

Baroness Miller of Chilthorne Domer: My Lords, there is an audience of one, who is about to be criminalised should this Bill be passed. How could the officials or the Minister come to the conclusion that there was no audience?

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Lord Hunt of Kings Heath: My Lords, directly importing the “deprave and corrupt” test into this offence would have the effect of requiring the possessor of the material to consider its effect on himself. The possible perverse consequence of that could be that less sexually aware members of society become more at risk of committing an offence than habitual users of pornography. So it is clear that the test would have to be adapted. It is not a simple case of referencing. We explored the feasibility of adapting the Obscene Publications Act but concluded that our approach is to be preferred.

The Obscene Publications Act offence is not limited to specified material, but, rather, catches anything which passes the “deprave and corrupt” test. By contrast, the approach that we have taken with this possession offence is to target only specified material. Even if we had used an adapted version of the Obscene Publications Act obscenity test, we would still have had to limit it by reference to specified acts.

As the amendment of the noble Baroness, Lady Miller, has the effect of rendering redundant the subsection (7) list of specified acts, it opens up the clause to cover a much broader range of pornography—anything which could pass the “deprave and corrupt” test. I am advised that it could catch the depiction of degrading sexual acts such as drinking urine or smearing excrement on a person’s body. In that respect, the noble Baroness’s amendment might widen the offence significantly.

We do not consider that by not providing for a direct read-across to the Obscene Publications Act test we open up any significant risk that material could be caught by this possession offence which it would be lawful to publish. It is not our position that the words,

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

are synonymous with the wording of the “deprave and corrupt” test. Rather—I repeat the points that I have made at earlier stages—it is that the three elements of the offence, the “pornography” test, the “explicit realistic extreme act” test and the “grossly offensive, disgusting or otherwise of an obscene character” test, when taken together, should ensure that the offence captures only material which it would be illegal to publish by virtue of the “deprave and corrupt” test within the Obscene Publications Act.

Amendment No. 15 would reduce the maximum prison sentence available to Crown Courts to deal with the possession of material described in Clause 62(7)(a) and (b) from three years to two years, making it the same as the maximum penalty proposed for bestiality and necrophilia material falling under Clause 62(7)(c) and (d). I have listened carefully to the points raised on this. In considering the penalties for these offences, it is clear that we have considered carefully proportionality with regard to existing criminal offences. We certainly think it right that the maximum penalty for possession of extreme pornographic material should fall below that available for the more serious offence of possession of indecent photographs of children, which is five years maximum. It should fall below also that available for publication, distribution and possession for gain offences under the Obscene Publications Act, which in Clause 69, as your Lordships will be aware, we are raising from three to five years. These are also more serious offences. Further, the penalties should not exceed the maximum penalty available for certain substantive offences potentially committed in making pornography, such as those in the Sexual Offences Act 2003 in relation to offences with animals and corpses which carry maximum penalties of two years.

The sentencing levels that we propose are proportionate, bearing in mind the high threshold levels for this offence. I stress that we are not talking about the kind of soft porn to which many noble Lords have referred and which has been referred to in the letters and e-mails that I have received in the past few weeks. It is material that should not be in circulation in this country. I say again that the increased availability of this material is a direct result of the impracticality in the internet age of controlling its circulation by targeting the publishers under the Obscene Publications Act 1959. We think it right to give the courts the means to reflect greater concern about the material featuring extreme sexual violence, whether real or simulated, than is the case for material which is degrading but non-violent. That is the reason for the distinction in the maximum penalties between the categories set out in Clause 62(7).

There are two other points to be made on the noble Baroness’s amendment to the penalty provision. First, her amendment removes, perhaps inadvertently, the capacity of the Crown Courts to impose a fine. Secondly, it deletes the transitional provision of subsection (4), which is required to provide for future changes to the sentencing powers of magistrates’ courts in England and Wales.

On the issue of policing, I hope that I can reassure noble Lords. The police have welcomed this offence. They see it as a further means to take illegal material out of circulation and an additional tool to deal with individuals whose behaviour may be causing concern. This is not, I suggest, a case of policing the bedroom. It is intended to target only the most extreme pornography. We believe that the number of prosecutions will be relatively small, but my understanding—from advice that I have received—is that the offence will be a valuable additional resource for officers already working on protecting the public in this area. I also give an assurance that this offence will not be commenced before a full explanation of it is given to the police and to the courts.

I am aware that this area is controversial. We discussed the principle on Report, and I hope that I have, at the very least, provided some explanation to the noble Baroness of the approach that the Government have taken. She will now have to consider her position.

Baroness Miller of Chilthorne Domer: My Lords, I thank very much all those noble Lords and noble and learned Lords who have spoken. This difficult area is one that I would have found it lonely to do alone, so I particularly thank your Lordships for expanding—better than I can, in all cases—on why these clauses are, in our view, particularly unworkable.

As the Minister says, we dealt with the principle on Report, so the point of coming back at Third Reading is to offer the Government a small chance to make these clauses slightly less unworkable—and slightly more reasonable—especially in the light of the history of courts trying to deal with this difficult area, and of juries understanding what is going on. I am particularly glad that the noble Baroness, Lady Kennedy of The Shaws, has joined the House at this point. She has spoken before about how difficult juries find this issue, and obviously has wide experience of why that is so.

This really comes down to the contention that these clauses are, as the noble Earl, Lord Onslow, said, put there to send a signal more than anything else. There was great consensus that they are really unworkable and do not address the issue that the Government are trying to address here. Perhaps the most chilling point in the Minister’s summing up—I thank him for going into some detail—was that when it came to policing this it was for dealing “with individuals” who are “causing concern”. Well, that is pretty difficult. How are they causing concern if they have committed no crime yet? They might be causing concern in all sorts of ways; they might be individuals whom the police do not much like, for a number of reasons, but then they get raided. Again, that really makes me feel worried. This is, as the noble Baroness, Lady Howe of Idlicote, said, all to do with human rights. It would have been better to look at this in the cool light of day. I am sorry that the Minister has resisted the idea. I know that he cannot call for it, but he could put on the pressure to create a Select Committee to look at the whole issue of violence in the media. That, I think, is what really concerns noble Lords.

I hope that, in this instance, the Conservative Benches will indicate whether they support these poorly drafted and unworkable clauses. I have a feeling that, should I test the opinion of the House, they will simply abstain. That would be a pity, as they are usually strong on trying to improve a Bill as the Liberal Democrat Benches are trying to today. It is quite clear that we feel there is still room for improvement. For that reason, I beg leave to test the opinion of the House.

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On Question, Whether the said amendment (No. 13) shall be agreed to?

Their Lordships divided: Contents, 91; Not-Contents, 134.

Resolved in the negative, and amendment disagreed to accordingly.