Clause 37 - Forfeiture of indecent photographs of children
Police and Justice Bill
12:00 pm
Hazel Blears (Minister of State (Policing, Security and Community Safety), Home Office; Salford, Labour)
The clause, which introduces schedule 11, amends the Protection of Children Act 1978. It provides a more effective mechanism for the forfeiture of indecent photographs of children under the age of 18 and the devices that hold them following a lawful seizure. The law currently allows for the forfeiture of indecent images following seizure under a warrant under the 1978 Act. In those circumstances, all material must be brought before the court, irrespective of whether its owner actually consents to the forfeiture. The court has no power to order the forfeit of articles brought before it under other powers of seizure, only those brought under the Protection of Children Act, so articles seized under another power—for example during a fraud investigation—cannot be condemned by the courts under the current law and could be returned to the owners.
That is the loophole in the law that the clause is designed to fill. Technically, the loophole means that indecent photographs of children could be returned to offenders. We are not aware of that ever having occurred, but the clause will fill the gap. Under the current position, if the authorities have gone in with a warrant under the Protection of Children Act, they can get the images forfeited. If the warrant were made under another provision and there was no conviction, people could have their computer handed back to them while it still contained the indecent images of children under the age of 18. I am sure that no member of the Committee would want that to happen.
The clause would close the loophole by replacing the current power under the Protection of Children Act 1978 with a power that allows forfeiture to be triggered by the police rather than the court. The power would allow the forfeiture of the material and any other material that it is not possible to separate from it, irrespective of the power under which the material was originally seized. That is a sensible, straightforward provision. New clause 11 and new schedule 2 make equivalent provisions in respect of Northern Ireland because it has the same gap in its law. It is important that the position is the same throughout all different jurisdictions.
We are changing the provisions so that forfeiture can be carried out by the police rather than the courts. However, is a provision under which, when someone is served with a notice of the police’s intention to forfeit the computers or the hard drive, that person can appeal to the courts and their application can be heard. That is to safeguard the position of third parties who may have some of their own information on the computer on which the indecent images are stored. For example, there could be a situation in which one of the two partners in the same household had been using the computer for their legitimate accounts and the other person in the household had accessed some indecent pornographic images of children. It is right that the third party should have the power to see if the information can be separated before the goods are forfeited. The third party will be able to make an application to the court to do so.
We have tried to cover a range of eventualities to be fair to all the parties, but I hope that all members of the Committee agree that a loophole that could result in people having indecent images returned to them is not something that we would want to allow. The clause will be a small, but important, addition to our law. It means that, in many cases, horrific images can be forfeited and not returned to the persons who originally downloaded them. I commend the new clauses to the Committee.