Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

I beg to move amendment 427, in clause 49, page 29, line 7, leave out ‘be in possession of’ and insert

‘publish by any means whatsoever to another’.

Roger Gale (North Thanet, Conservative)

With this it will be convenient to discuss the following: amendment 72, in clause 49, page 29, line 11, leave out ‘disgusting’.

Amendment 428, in clause 49, page 29, line 13, leave out ‘produced’ and insert ‘published’.

Amendment 429, in clause 49, page 29, line 14, at end add

‘of the publisher or of a publishee’.

Amendment 430, in clause 49, page 29, line 15, leave out ‘(as found in the person’s possession)’ and insert ‘on publication’.

Amendment 431, in clause 49, page 29, line 26, at end add

‘of the publisher or of a publishee’.

Amendment 432, in clause 50, page 30, line 19, after ‘extracted’, insert ‘and published’.

Amendment 433, in clause 50, page 30, line 20, at end add

‘of the publisher or of a publishee’.

Amendment 434, in clause 51, page 31, line 13, leave out ‘it is’ and insert ‘he has’.

Amendment 435, in clause 51, page 31, line 14, leave out ‘for the person’ and insert ‘where the prosecution fails’.

Amendment 436, in clause 51, page 31, line 15, leave out ‘a’ and insert ‘no’.

Amendment 437, in clause 51, page 31, line 15, leave out ‘being in possession of’ and insert ‘publishing’.

Amendment 438, in clause 51, page 31, line 17, leave out first ‘not’.

Amendment 439, in clause 51, page 31, line 17, leave out from ‘and’ to ‘it’ in line 18 and insert ‘knew, or had cause to suspect’.

New clause 35—Responsibility for publication of prohibited image—

‘(1) A person has a defence if—

(a) he was not the author, editor or publisher of the prohibited image,

(b) he took reasonable care in relation to its publication, and

(c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of the prohibited image.

(2) For this purpose “author”, “editor” and “publisher” have the following meanings, which are further explained in subsection (3)—

“author” means the originator of the image, but does not include a person who did not intend that an image originated by him be published at all;

“editor” means a person having editorial or equivalent responsibility for the content of the image or the decision to publish it; and

“publisher” means a commercial publisher, that is, a person whose business is issuing material to the public, or a section of the public, who issues material containing the image in the course of that business.

(3) A person shall not be considered the author, editor or publisher of an image if he is only involved—

(a) in printing, producing, distributing or selling printed material containing the image;

(b) in processing, making copies of, distributing, exhibiting or selling a film or sound recording (as defined in Part I of the Copyright, Designs and Patents Act 1988) containing the image;

(c) in processing, making copies of, distributing or selling any electronic medium in or on which the image is recorded, or in operating or providing any equipment, system or service by means of which the statement is retrieved, copied, distributed or made available in electronic form;

(d) as the broadcaster of a live programme containing the image in circumstances in which he has no effective control over the maker of the image;

(e) as the operator of or provider of access to a communications system by means of which the image is transmitted, or made available, by a person over whom he has no effective control.

In a case not within paragraphs (a) to (e) the court may have regard to those provisions by way of analogy in deciding whether a person is to be considered the author, editor or publisher of a statement.

(4) Employees or agents of an author, editor or publisher are in the same positions as their employer or principal to the extent that they are responsible for the content of the image or the decision to publish it.

(5) In determining for the purposes of this section whether a person took reasonable care, or had reason to believe that what he did caused or contributed to the publication of a prohibited image, regard shall be had to—

(a) the extent of his responsibility for the content of the image or the decision to publish it,

(b) the nature or circumstances of the publication, and

(c) the previous conduct or character of the author, editor or publisher.

(6) This section does not apply to any publication which arose before the section came into force.

(7) For the avoidance of doubt, the burden of proving or disproving, as the case may be, any of the facts or matters in subsections (1) to (6) above is on the prosecution.’.

Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

We now move into a completely different realm, dealing with an adjustment to the criminal law concerned with images of children, and whether it should be an offence to possess certain prohibited images. The amendments, standing in my name and those of my hon. Friends the Members for North-West Norfolk and for Rugby and Kenilworth, are broadly in two and a half parts.

There is a simple point regarding amendment 72, which concerns clause 49(2)(c). I want to know what the use of “disgusting” in the clause adds to the offence. “Offensive behaviour” is a term that criminal courts, and, I think, most members of the public who come into contact with pornography or antisocial sexual behaviour, are aware of, while “disgusting” seems to be simply an emotive term that does not—unless I can be persuaded otherwise—help the shape of the clause very much. It is a great word to spit out and it adds emphasis to one’s sense of abhorrence at the thing that one is looking at, but I wonder why the Government think that it is appropriate to use that word in addition to “grossly offensive”. It leads one to wonder, if the prohibited image is grossly offensive and disgusting, or otherwise of an obscene character, where that paragraph leads one to. I think that the Director of Public Prosecutions, Mr. Starmer, told us in the evidence sessions that “disgusting” was not an unusual word to be used in criminal statutes, dealing with this particular area of  the criminal law, and while I am happy to be corrected, I think that it is unnecessary and over-egging the pudding. That is the half part of my two and a half parts that deal with prohibited images.

The first main part leads us to a discussion on whether the evil or wrong that we seek to prohibit is best captured by attacking possession of prohibited images of children or, as we suggest in our amendment, their publication. For those purposes, publication means the making known of an image to a third party. It is not the technical process of publishing a newspaper or book. Making known to a third party is drawn from defamation law.

My suggestion—I am entirely open to others—is that we are dealing with unreal people, not with human beings or children. If we were, the position would be different, because someone taking an obscene photograph or creating an obscene drawing of a real child needs to have the child in front of them doing the obscene act, or depicted doing it. Here, we are talking about images of children that do not require the presence of a child to create the image. A silly example is a disgusting old man—

Henry Bellingham (Shadow Minister, Justice; North West Norfolk, Conservative)

A pervert.

Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

I am grateful to my hon. Friend, who is always ready with the word that is needed. A pervert in his office or the back room of his house could be creating grossly offensive, disgusting or otherwise obscene images. Having drawn them or created them on his computer, however people do such things, he would be in possession of it. One could go through the whole of this part of the Bill and decide that he fits into this, that or the other category, but he would not have done anyone else any harm. He may have drawn the image for his own gratification and may look at it, but what he does with it in his house will not damage the public or the wider world.

Maria Eagle (Parliamentary Secretary, Government Equalities Office; Liverpool, Garston, Labour)

Would the hon. and learned Gentleman be making a similar distinction if the images were used to groom real children for abuse?

Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

The Minister is making my point for me. There must be third party interaction to groom. The child must look at the image, and as soon as the dirty old man shows it to the child for the purposes of grooming, there is publication under my definition, because he will have made the image known to a third party. That is why we must work out whether we are trying to stop publication in various forms—by internet, e-mail or physically showing someone a hard copy document—for all the sensible, catch-all provisions in clause 49, or whether mere possession is sufficient to create a criminal offence.

Maria Eagle (Parliamentary Secretary, Government Equalities Office; Liverpool, Garston, Labour)

I accept the hon. and learned Gentleman’s point, but the image in his example is not illegal. That is the point.

Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

I am not seeking to blow the whole clause out of the water. I want to amend it in a way that deals with the public policy point that we should concentrate  on. We want to protect people from being affected by other people’s revolting behaviour. The dirty old man, to whom my hon. Friend the Member for North-West Norfolk referred, may create an image for his own gratification, but as long as he does not show it to anyone else there is no public harm, which the criminal law needs to think about.

Tim Boswell (Daventry, Conservative)

Although I respect and have a good deal of sympathy with my hon. and learned Friend’s argument, will he consider the circumstances if it was unclear whether the image before the court, if action were taken, was an actual image that had involved the exploitation of a child, or a synthetic image that had not? It could even be a blend between the two. Perhaps the Minister is reflecting on that, and perhaps it is partly a reason for the Government’s thinking on the matter.

Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

Before we adjourned, my hon. Friend the Member for Daventry asked me about a situation in which there was a mixture of what might be a real image and an imagined image.

Tim Boswell (Daventry, Conservative)

I also wish to ask about the nature of the image, and the circumstances when it was taken from a live subject, which would clearly be illegal under the present provisions, or taken from a computer construction that had no human subject, which might be a matter of evidence and difficult to prove.

Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

My hon. Friend has answered his own question. Such a matter would be evidence that would have to be considered by the police and the prosecuting authority and, if it got beyond them, by the court. It is a matter of fact that someone would have to deal with at various stages of the process.

Our adjournment has enabled me to conclude that I had probably said quite enough about my first main part of the discussion on whether public policy is better served by the offence being that of possession compared with that of publication.

Madeleine Moon (Bridgend, Labour)

May I clarify matters? The hon. and learned Gentleman is pushing a fairly libertarian policy, and I want to be sure that my understanding is clear. What is being argued is that possession would not be a criminal offence, but making such material available to a third party or sharing it with a third party would be an offence. If we are talking about images of children of a sexual nature, how does that square with people growing cannabis for their own use but not selling it, or engaging with consenting adult friends in sado-masochism but not inviting those who are not consenting adults to take part? How does possession as opposed to sharing square with those contradictions?

Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

The hon. Lady is talking about two completely things. I am not sure that they need to be squared. I really do not think that I need to take the matter much further unless she wishes to explain her  question better. I am talking about protecting children from abusive people. Such matters are obvious in the case of a photograph because to take a photograph of the sort that might be described under clause 49(7), active participation is needed and whether it is willing or otherwise makes no difference. The active participation is needed of an immature human being—a child. To draw a real individual in a way that would come under subsection (7), a real individual would be needed.

An individual who sits in his back shed and constructs for himself, for his own gratification and that of no one else, an imaginary image strikes me as something that does not affect the wider public, although that is a matter of debate. Public policy needs to bite at the moment that the person makes the image available to third parties and the effect of the grossly offensive or disgusting image impinges on a third party. I am not sure that such matters have anything to do with smoking cannabis in private, taking heroin in private or engaging in other illegal activities in private. We are worried about where the balance lies. Should it lie in outlawing the simple possession of disgusting, obscene images created by oneself for oneself or should we outlaw them only when they are made known to the public?

Maria Eagle (Parliamentary Secretary, Government Equalities Office; Liverpool, Garston, Labour)

Does the hon. and learned Gentleman accept that downloading from the internet a pseudo-image that is not based on a real photograph equates to possession? Many of us think of it as publication or we think about it as prior to the internet. People are not necessarily creating the images for themselves but downloading them.

Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

Yes, but that is not the case I am talking about. If I create an image that comes within the definition of a prohibited image and upload it to the internet, that is publication. The fact that it may be downloaded by one or 10 million people makes no difference because I have already published it by putting it on to the net. I am talking about people who create by drawing, or by however one does such things on computers, things for their own use, which do not go beyond that individual. The Minister’s case would come within my definition for publication.

I have said enough about the main part of my amendments, so I turn to new clause 35. Members of the Committee who have any interest in the issues will have realised without much prompting that new clause 35 is a lift from the Defamation Act 1996. The equivalent section in that Act provides a defence for people who are technically publishers, authors or editors of defamatory material but who are not blameworthy. I am using shorthand to avoid getting into a long and tedious discussion. The definition of “publisher” in subsection (2) of new clause 35 means

“a commercial publisher, that is, a person whose business is issuing material to the public, or a section of the public, who issues material containing the image in the course of that business.”

That is not strictly on all fours with the definition that I import into my amendments in relation to publication as opposed to possession. However, I do not think that much matters for the purposes of our discussion.

In new clause 35 I am seeking to protect—as to some extent clause 51 does—innocent disseminators or publishers who have in their possession material that comes within the definition of a prohibited image, which they pass on but not with the requisite criminal knowledge or intent.  I say with the “requisite criminal knowledge” and “intent” because my suggestion is, as I set out in subsection (7) of the new clause,

“the burden of proving or disproving, as the case may be, any of the facts or matters in subsections (1) to (6) above is on the prosecution”.

Therefore, there should be no doubt that it is for the prosecution to prove that someone is an author, editor or publisher. It is for the prosecution to prove that someone did something that removed the defence from them rather than putting the burden on the defendant to prove his innocence within the terms of new clause 35.

I shall assume that people have read new clause 35. I could run through it line by line and persuade people that it was worth including in the Bill, but I shall assume that people have read it, understand what I am about, and accept that the principles that I am enunciating are fair and reasonable and do not in any way undermine the need to protect vulnerable people, particularly children, from becoming involved, wittingly or unwittingly, in the activities covered by clause 49. Nobody would want children injured, emotionally or physically, by having to participate in the construction of grossly offensive, disgusting or obscene images, but we are talking about imaginary, unreal people, albeit made to look almost real in some computer images. I have not seen them but I am told that it can be done.

I hope that the Minister will accept the spirit in which I have advanced these amendments and explain why simple possession, as opposed to publishing in the sense that I have suggested in my amendment, is the better course.

George Howarth (Knowsley North & Sefton East, Labour)

I was grateful for the break because I was slightly confused by the arguments of the hon. and learned Member for Harborough and it enabled me to think about them in more depth. I shall try to be brief, not least because I know that my hon. Friend the Member for Wrexham is anxious that we hasten proceedings.

The hon. and learned Gentleman has got it wrong, both in terms of the Bill and the principle, in the arguments he was advancing about images of children in pornography. First, in terms of the Bill, clause 49(3) says:

“An image is ‘pornographic’ if it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal.”

That is the first test it has to pass. Subsection (6) defines an image, for the purposes of the clause, as

“an image which focuses solely or principally on a child’s genitals or anal region, or...portrays any of the acts mentioned in subsection (7).”

I will not go through what those acts are. I am sure everybody has had the opportunity to read them. The point I am making is that the clause makes it clear why those things are unacceptable. It makes it clear in what context they are unacceptable. I do not understand why the hon. and learned Gentleman is advancing what appears to be, if he will pardon the phrase, a somewhat existential argument.

Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

I have obviously explained myself extremely badly. Let me make it clear that I do not approve of things such as the prohibited images. I think they are  revolting. But should the criminal law make it an offence for an individual to make for his own gratification drawings or pseudo-images, which are not real children?

George Howarth (Knowsley North & Sefton East, Labour)

I had not misunderstood the hon. and learned Gentleman. I am glad that he has just confirmed that I had not misunderstood him, but my point of principle, where I differ from him, is this: the three subsections of the clause I have just referred to are all part of the process. The fact that it is not a real child in the image—that it could have been conjured from the person’s imagination—does not make it any less a paedophile activity. How can the hon. and learned Gentleman say, for example, that what the elderly gentleman who seems to have been evoked may do with an image that he has conjured up from his imagination in the privacy of his own home as part of a paedophile activity, will not lead to other things? It seems self-evident that if somebody can get gratification from that sort of activity, it may be but a short step towards involving real images of children and real activities. I honestly think that the hon. and learned Gentleman has got it wrong in principle as well as in terms of interpreting the Bill.

Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

If things lead on to other things, that will create other offences and lead that person to be guilty of them. To take a ludicrous example, the right hon. Gentleman and I may be doodling in this Committee room while other people are speaking; of course, we would not do so, but let us assume that for the purpose of this argument he and I were separately doodling the sorts of images described in the measure and that once we finished we tore them up, threw them away, and showed them to nobody. Would he expect that that doodling should lead us to be prosecuted under the clause? That is the sharp point that I am making.

I appreciate that the right hon. Gentleman may disagree with me; he may think that the act of making a private drawing should be a criminal offence, but is that what we are after?

George Howarth (Knowsley North & Sefton East, Labour)

As the hon. and learned Gentleman said, it is a ludicrous example, but I accept that he was trying to find a way of illustrating the argument. I will answer him very directly. If he doodles on the back of a piece of paper during the course of the Committee, screws it up and throws it away, but somebody retrieves it, and then it is discovered that it is grossly offensive, disgusting or of an otherwise obscene character—an image that could be of such a nature that it would be solely or principally used for the purpose of sexual arousal—what he had engaged in would be improper and should not be approved of or sanctioned by the law.

I would like to make a broader point. The hon. and learned Gentleman said in an earlier intervention—I did not get around to responding to it before he intervened on me again—that if the drawings led to something else, those offences would be subject to prosecution. What I am saying is that we want those offences prevented. If somebody is in the process of arousing themselves sexually by that process, it must be part of something. In a lot of cases, it will be part of something that will lead on to something else.

Jennifer Willott (Cardiff Central, Liberal Democrat)

The Committee is rather depleted, but we carry on the discussion. I believe that there are strong views about this on both sides of the Committee, as is evident from the contribution of the hon. and learned Member for Harborough. This is clearly a very difficult area. It becomes very clear when we are talking about photographs—it is much easier to see the rights and wrongs of that because clearly there is a victim and it is clear that that activity should be illegal.

The issues that the right hon. Member for Knowsley, North and Sefton, East just raised are confusing two different issues. I agree with a lot of what was said by the hon. and learned Member for Harborough: if we are going to ban more broadly than photographs and pseudo-photographs, we have to have very clear evidence to show that the change is needed. The suggestions put forward by the hon. and learned Member for Harborough would make sense as long as we can show that just looking at an image does no harm and does not lead to any abusive behaviour.

That leads to a dilemma: there are two opposing arguments as to how we should react to this particular case. One is that non-photographic images legitimise abusive behaviours in the minds of offenders, leading them to act out the images and display abusive behaviour—the images, therefore, pose a risk to children. The other view is that they are not photographic, so there is no victim as such, and they act as an outlet for individuals who have those tendencies and predilections—they act as a release, and therefore reduce the risk of abusive behaviour towards children.

From what I can gather, it is actually very unclear where the balance lies between those two arguments. There is not enough evidence to show us which way we should make the judgment. I understand that there is evidence on both sides, but not enough to work out which side is in the majority and therefore which we should follow.

Stephen Hesford (Wirral West, Labour)

I am obliged to the hon. Lady for giving way. Picking up on the notion suggested by the hon. and learned Member for Harborough, if a dirty old man had one image and nothing else, the prosecution authorities might conclude that there was no case to prosecute. That is one way of dealing with it, but there is another. Does the hon. Lady accept that if there were two or three images, the authorities could prosecute but the sentence should take account of the fact that there were just one or two isolated images, as the damage would be small? The protection of children demands that such images are controlled in some way. Is that not the solution?

Jennifer Willott (Cardiff Central, Liberal Democrat)

I do not agree. The hon. Gentleman refers to the harm being small, but the question is whether there is any evidence of that. Having photographs is a completely different matter because there clearly is a victim. It should therefore be illegal. If there is no evidence that non-photographic images lead to further harm, why should we make them illegal? The question is whether harm is caused as a result of owning such images; if they have an effect on people’s behaviour, we  should make it illegal. However, the evidence is not strong enough to justify that. I should be grateful if the Minister were to clarify the matter.

I am a little concerned that we are legislating without any evidence, because the risk to children could increase. If the evidence showed that having images that were not photographic acted as a release, and therefore reduced the risk of harm to children, legislating could increase the risk of harm. That is why I am concerned that we are legislating without sufficient evidence.

George Howarth (Knowsley North & Sefton East, Labour)

If the image in question is grossly offensive, disgusting or otherwise of an obscene character but does not have a child as a victim, is it not arguable that, by extension, all children are victims of that image?

Jennifer Willott (Cardiff Central, Liberal Democrat)

That argument stands up only if one believes that all pornography should be illegal because it is degrading to women. I do not believe that all pornography should be illegal. The fact is that I do not want to see these images—they probably are truly disgusting and repugnant. However, the question is whether they do harm. The fact that the image is something that I do not want to see does not mean that I believe it should be made illegal. For me, that is where the balance lies.

George Howarth (Knowsley North & Sefton East, Labour)

I shall make this my last intervention; the hon. Lady has been generous in giving way. The difference between pornography that degrades women and pornography that involves children in some way is that we take the view, in law and in principle, that children cannot defend themselves. Society therefore has the wider obligation of defending them in every conceivable way. There is a difference.

Jennifer Willott (Cardiff Central, Liberal Democrat)

Absolutely. That is why photographic pornography should be completely illegal. The question is whether it does harm to a real child. I have not heard evidence that is strong enough to suggest that it does that.

Madeleine Moon (Bridgend, Labour)

Having spent a considerable amount of my professional life working with abused children, particularly those that have been sexually abused, common experience is that sexual abuse does not start with the abuse itself. Gratification starts at a low level and gradually builds. It is rare that the first action of a perpetrator of sexual abuse is to assault a child. It is because they no longer get gratification at lower levels of intensity that the need escalates. For me, this legislation is saying that we are placing the barrier of what is permissive and what society views as acceptable at the lowest possible level, so that an individual is aware right from the start that their actions are unacceptable in society and in law. In that way, we are also seeking to protect children.

Jennifer Willott (Cardiff Central, Liberal Democrat)

I am prepared to accept the point that the hon. Lady is making, which is that the matter does not start with sexual abuse and that it escalates. I absolutely accept that that is the case. However, that is not the same as saying that the behaviour of every single person who looks at an offensive and pornographic image escalates. That goes back to the point that I made a minute ago, which is whether or not having access to  images such as that acts as a release to people and therefore makes them less of a risk to children. That issue is at the heart of the decisions that we need to make on the clause.

I should be grateful if the Minister would clarify a couple of points in her response. First, the Protection of Children Act 1978 makes it an offence both to publish and possess indecent images. Will she clarify why it has been decided in this legislation just to make it an offence to possess, rather than to publish? Why possess, rather than do both?

Also, there appears to be a lack of clarity—this was raised earlier—about the issue of looking at images online. That was something that I mentioned in a couple of the evidence sessions. There are two different processes. There is the issue of someone downloading images so that they have them on their computer and the fact that under this legislation, someone would be in possession of them and therefore it would be an offence. However, if someone watches a streamed image, it is held somewhere else so they never download it on to their computer. The evidence given to us by the DPP was that he thought that probably would be illegal, but I am unclear about how the legislation as currently drafted would make it illegal, because someone does not download the image. They do not possess the image; they watch it somewhere else on a remote system. I shall be grateful for clarification on that.

Overall, personally and as a party, we have real concerns about the breadth of the proposals in the Bill. A number of amendments in the next string relate to those specific points, but I shall be grateful if the Minister will clarify some of those issues.

Maria Eagle (Parliamentary Secretary, Government Equalities Office; Liverpool, Garston, Labour)

The Government take very seriously all matters relating to the sexual abuse of children. Any material that might appear to derive from or encourage such activity is something that all Members of this House should disapprove. All hon. Members know that the UK has an absolute prohibition on the production, distribution and possession of indecent photographs of children. We have recently extended the law to cover tracings and derivatives of such photographs. However, the possession of images that have no connection with photographs is not covered by the current criminal law, which is the gap that we are seeking to close with this provision.

The police have reported finding increasing numbers of such images alongside indecent photographs of children. More of those images are also being found on the internet and are often blatantly advertised as legal child pornography. I remind hon. Members that child pornography is illegal in this country and if there are loopholes, we need to close them. Police and child welfare groups have expressed concerns that such images could be used for the purposes to which my hon. Friend the Member for Bridgend referred, and lead to escalation and real harm.

Just because we cannot prove real harm to specific children at this minute, we should not allow such loopholes—effectively, created by developments in technology—to continue to make a mockery of the law that is intended to protect our children. These images are at the highest, most explicit and disgusting, unpleasant  end of any spectrum that might be considered to be the end result of a doodle. They are highly detailed, explicit drawings, cartoons and computer-generated images that look real and depict horrific scenes of child sexual abuse, as my right hon. Friend the Member for Knowsley, North and Sefton, East made clear in his remarks. This is not about generally cracking down on artistic doodles or on art, but about cracking down on a loophole that the police and others who deal with child protection are increasingly drawing to the attention of policy makers and Government. We should be taking that seriously.

I will not rehearse the way in which the offence works, because my right hon. Friend did that well in his remarks. This is just to say that we are talking about the highest, most explicit, unpleasant end of things and about images that are already illegal in respect of publication under the Obscene Publications Act 1959. That answers the point made about why this provision only deals with possession: it does so because publication is already illegal under the 1959 Act. However, possession of these images at present is not illegal because of the way that they are created. We need the possession offence because we are talking about the internet. Specifying publication in the past would have dealt with this. Possession offences are a way of trying to control these images when the internet is the main means of distribution; otherwise we shall not have any control over them.

Let me move on to the amendments, about which I should like to make two major points. The hon. and learned Member for Harborough wants to turn the possession offence into a publication offence, for reasons that he has outlined. He mentioned a narrow range of dirty old men, if I may put it that way, who would be keeping the image that they create themselves very much for themselves. It would be hard to catch a person who produced an image or drawing in that way and for that to come to anybody’s attention, if that is what they did in their little back room. It would be difficult to know how that would come to the attention of the authorities. Certainly, if it did come to the authorities’ attention I would expect them to be concerned about it, because we are talking about images that are produced for the purposes of sexual arousal, primarily in those categories that it is already illegal to publish under the 1959 Act. But in recognition of the sensitivity of this matter, we require the consent of the DPP to bring prosecutions. We tried to construct the offence carefully to ensure that it captures the material that has raised the most concern.

If we remove “disgusting” from the second element of the offence—I remind the Committee that the DPP thought that although “disgusting” was not used often in legislation, he did not find it too great a concern—as the hon. and learned Gentleman suggests we do, that would reduce the clarity of the offence and detract from the formula accepted by Parliament last year for the offence of possession of extreme pornography, which has similarities to the offence we are talking about. I think that I have dealt with the point about turning the possession offence into a publication offence.

Turning to the new clause, we see no need for an additional defence. As the hon. and learned Gentleman said, that element is imported from the Defamation Act 1996 and has no precedent within the criminal law.  It is a civil provision. Amending our new possession offence to a publication offence would not achieve anything. Altering the burden of proof in respect of the defences to our offence, which mirror well understood and long-established defences, is unnecessary and will place additional difficult burdens on those prosecuting the possession of these horrific images.

We ought to remind ourselves that these are the worst kind of images at the top end of unacceptability in our society and at the most dangerous end of potential to harm our children. We are determined to ensure that we protect our children and not to allow loopholes like this to make a mockery of the law. On that basis, I hope that the hon. and learned Gentleman will ask leave to withdraw his amendment.

Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

I will do so and I will not move my new clause formally. But we need to be careful. The context within which are debating this matter is the context of some disgusting images. It becomes difficult in the court of public opinion—to use a phrase which the Government now seem so fond of—to discuss this rationally. No reasonable person doubts that the sorts of things set out in clause 49 are revolting. They arouse our understandable and natural personal distaste and revulsion. I just think we need to be very careful about what we mean by “possession” Having listened to the Minister say what she meant by possession, I think she actually meant “publication.”

I suspect that beyond the practical difficulty of policing the dirty old man who creates drawings for himself and leaves them in his drawer and shows them to nobody, the sorts of things the Minister was talking about—forget the abhorrent nature of the images—are things that appear to her, if I understand her correctly, to have been uploaded on to the computer system, on to the web. To that extent, they have been published, so there is no difference between us. She seems to call that possession; I call it publication.

So I think what we need to do between now and Royal Assent is to understand what people mean by possession.

Maria Eagle (Parliamentary Secretary, Government Equalities Office; Liverpool, Garston, Labour)

Downloading.

Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

I hear the Minister say “downloading” from a sedentary position. There again, in order for it to be downloaded, it must have been placed on the web by somebody, so there is a publication on to the web address, presumably—[Interruption] It is no good the right hon. Member for Cardiff, South and Penarth coming to this debate late, and then uttering blasphemies while I am trying to explain a rather difficult issue. If he wishes to intervene to say something, I would be very happy to listen to him.

Alun Michael (Cardiff South & Penarth, Labour)

The hon. and learned Gentleman makes the point that I just entered the Committee Room. I have not uttered a blasphemy: I expressed some surprise at the approach he is taking. I think it would surprise the general public.

Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

If the right hon. Gentleman had been here throughout the debate, he would have understood precisely what I was saying. The Minister has had the courtesy to listen to what I had to say, and I suspect  there is not the difference between us that the right hon. Gentleman—who uttered what I would describe as a blasphemy—suspects.

Between now and Royal Assent we have to be careful to make sure what we mean by “possession.” As I understand from what the Minister said a moment ago, she is talking about publication. It is the transfer of an image from its creator on to the web and from the web to somebody else’s screen. That is publication. It may also happen to be possession, but publication is what we are talking about. If she leaves it as simply possession, as it is currently in the Bill, we shall be in the ludicrous position where the thought police will go around looking into people’s top right-hand drawers.

I can see what will happen. Somebody will be raided for some other suspected offence—handling stolen goods or possession of drugs—and the police will search the premises and find in this imbecile’s top right-hand drawer an image that falls within clause 49(2). He will then fall foul of being charged with that offence, albeit that that disgusting image has never been seen by anybody else apart from the person who has been raided for drugs or possessing stolen goods.

I will leave it there, but I think we need to be careful about this. I refuse to be put off the case I am making simply because the subject we are talking about is one that arouses entirely proper revulsion. But, Mr. Gale, I ask you to ask the Committee if I can shut up and sit down. I beg to ask leave to withdraw the amendment.