Mobile Telephones (Re-programming) Bill [HL]

– in the House of Lords at 4:31 pm on 20th June 2002.

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Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department 4:31 pm, 20th June 2002

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Filkin.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Elton) in the Chair.]

Clause 1 agreed to.

Photo of Lord Dixon-Smith Lord Dixon-Smith Conservative

moved Amendment No. 1:

After Clause 1, insert the following new clause—

"Possession of anything for mobile telephone re-programming purposes

(1) A person commits an offence if he has in his custody or under his control anything which he may use for the purpose of changing or interfering with the operation of a unique device identifier.

(2) A unique device identifier is an electronic equipment identifier which is unique to a mobile wireless communication device.

(3) It shall be a defence against a crime committed under section 2(1)(a) if the person is able to demonstrate that he is required to have in his custody or under his control that thing for legitimate purposes.

(4) A person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or to both, or

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine or to both."

Photo of Lord Dixon-Smith Lord Dixon-Smith Conservative

My Lords, I begin by saying that I am grateful to the Minister for sending me a letter in which he set out in detail how he expected the Bill to work. But it remains a concern of myself and my colleagues that the Bill, as currently drafted, is not sufficiently clear and not sufficiently strong. Perhaps I should reiterate the purpose of the Bill, which is to make it a criminal offence to tamper with the unique identification number of a mobile telephone. The intention is to prevent the second-hand market, as one might say, in stolen mobile telephones.

The Bill is wholly laudable in intention and, indeed, we support it entirely in principle. But our concern is that it is not sufficiently precise to catch people and, indeed, we believe that more could have been done to prevent the crime. The offence that we seek to stop is not the crime of tampering with mobile telephones and the marginal loss of revenue to mobile telephone companies; we are seeking to stop muggings on the street in which people are robbed of mobile telephones. Therefore, it is street crime and street violence and part of that general campaign which is far more significant. We believe that, in other circumstances, the Bill could have been rather more fortunately drafted with a definition of the offence. My amendment seeks to bring that about.

I am bound to tell the Committee that I tried to table another amendment which I believe would have been even more effective. When I questioned how one measures a person's intent to commit a crime, the Minister's letter to me explained that if someone is found with the equipment to alter a unique identification number and if he is found with 50 stolen mobile telephones, one might reasonably infer that he had the intent to commit the crime. That is so. But people in that category would quickly learn to keep their stock of stolen mobile telephones separate from the equipment which they would need to use. Therefore, I asked myself: why not make it an offence for an ordinary individual to own or have in his possession four or more mobile telephones? I tried very hard to come up with a reasonable number. I could not think why anyone would want three mobile telephones. Therefore, it seemed to me that four was probably a safe number to choose.

When I tried to table an amendment to that effect, I regret that the Clerks, to whom we have to turn for guidance, considered the matter and said that such an amendment was not permissible because the terms under which the Bill is drafted are so tight and so specific that such wording would not be acceptable. I must defer to their expertise. However, that leads me to the conclusion that perhaps the driving motive for the drafting was to get the Bill passed quickly rather than necessarily to consider keenly ways of preventing such offences taking place and to do something to improve the environment on our streets.

However, we should be clear that in order to amend an identification number for a mobile telephone one simply needs a computer and a particular type of computer program. One cannot very well start to restrict the sale of computers if, as the Bill says, one believes that someone might commit an offence with them. As to the program, I have here a print-out of some 75 pages to which I was referred when I researched this matter. It tells me very precisely how, to use a vernacular phrase, to "clock" a mobile telephone. That information is freely available. I dare say that the suppliers of that information might have been slightly amused to see it being downloaded in so august a place as this House.

But the fact is that, if my amendment is approved—if the Minister is gracious enough to accept it—it will knock me down because I shall quickly have to take that mass of paper to the shredder or I shall become a criminal through having the means of doing the job.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

Will the noble Lord give way? When I was faced with that dilemma this morning, I used my own personal computer so that I did not have to use the parliamentary intranet computer, with which we are provided, for fear that I might find myself equally in difficulty.

Photo of Lord Dixon-Smith Lord Dixon-Smith Conservative

I suppose that there is a remote possibility that, in downloading the material on to my computer, I have managed to download it on to everyone else's computer on the intranet. That would have most amusing consequences.

On a more serious note, in my submission, the amendment that we propose makes the position of the crime more clear in the Bill. The amendment states that possession of anything for mobile telephone reprogramming purposes will be an offence. It then goes on to provide a defence because there are legitimate uses for such programs, or so I am told—I defer to other people's expertise. Therefore, subsection (3) of the amendment states:

"It shall be a defence against a crime committed under [this] section ... if the person is able to demonstrate that he is required to have in his custody or under his control that thing for legitimate purposes".

It may be argued that in tabling such an amendment we are making a presumption of guilt. In British law a presumption of guilt is already accepted if one happens to have on one's computer a load of paedophiliac photographs. I do not believe that we can argue that that creates an unreasonable precedent. It is not unreasonable to work in this way and provide a defence.

That is the substance of the amendment. We believe that it provides a clearer position than that in the Bill where a person commits an offence if he has under his custody or control anything that may be used in that way and he intends to use it. I believe that there are difficulties in relation to judging intent, although circumstantial evidence can create a reasonable supposition of intent. The same applies to the second clause of the Bill on the supply of equipment. It deals with whether a supplier,

"knows or believes that the person to whom the thing is supplied intends to use it unlawfully".

This is an interesting Bill which has been designed to be passed quickly and almost without thought. I believe that we can improve it and I hope that my amendment, which is designed to improve it, may be acceptable to the Minister. Amendment No. 2 is consequential upon Amendment No. 1 and if we get nowhere with the first amendment, Amendment No. 2 will sink without trace. I beg to move.

Photo of Lord Elton Lord Elton Conservative

If this amendment is agreed to I shall be unable to call Amendment No. 2 on the ground of inconsistency.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

I ask my noble friend's forgiveness as I have some friends waiting for me outside the Chamber. I did not expect the Statement to take place over the past hour.

I want to follow the noble Lord, Lord Dixon-Smith, and point to some specific equipment that may be one of the things—"things" being the key word in his amendment. There is an early reference to "anything" and then "thing". That "thing" could be a cable that links the PC to the phone; that could be the interface between the two. Perhaps in reply my noble friend could make specific reference to that because in a conversation that I had a couple of hours ago with someone in this area of business—it seemed an interesting Bill on which to carry out some work—reference was made to problems that may arise with the possession of a cable as an interface.

Photo of Lord Dholakia Lord Dholakia Party Chair, Liberal Democrats 4:45 pm, 20th June 2002

We also support the broad principle of this Bill, as we said at Second Reading. The noble Lord, Lord Dixon-Smith, is absolutely right to talk about the extent to which crimes in relation to mobile phones have caused a serious blip in car crime figures, particularly when violence is used.

I am grateful to the noble Lord, Lord Dixon-Smith. I well remember him making the same point at Second Reading. Unfortunately, I do not have a copy of the Minister's letter. It would have given me an explanation, but that does not matter. The noble Lord, Lord Dixon-Smith, was good enough to let me have a copy of his amendment. I am interested in the Minister's observation about the amendment.

At first sight, I do not see anything wrong with what is proposed. Clause 1 sets out circumstances under which a person does not commit an offence, such as being the "manufacturer of the device" or because the action of re-programming has been authorised by the manufacturer of the device. The amendment broadens that provision in that it provides an individual with a defence,

"that he is required to have in his custody or under his control"— a mobile device—

"for legitimate purposes".

In terms of the defence provided there is a difference of emphasis. It would be helpful if the Minister could explain whether the amendment would be more productive than the Home Office provision.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

I thank both Front Benches for their expressions of broad support for the intent of the Bill, if we have not yet reached unanimity on the exact mechanisms. I shall resist the invitation to respond to the amendment that the noble Lord, Lord Dixon-Smith, did not move and try to focus on the one that he did. He raised some interesting, almost Second Reading type questions, about the context of the amendment. I shall speak briefly as we are in Committee.

In essence, the Bill is the product of some effective work between the police and the mobile phone industry. There has been clear and strong pressure from them both that it is necessary and desirable to move forward as rapidly as possible and to introduce this legislation. The noble Lord, Lord Dixon-Smith, also raised questions about the wider context. The Government have been extremely active in the past year or so in terms of considering mobile phone theft and its relationship to street crime in general and to the street crimes initiative.

A range of actions are under way in terms of crime prevention and detection: closer and more vigorous targeting by the police; working with the police on identifying hot spots; high visibility policing and robbery teams; video ID parades; fast-track street crime cases; street crime courts proposals; enhancement of victim support schemes; the Crown Prosecution Service premium service; electronic tagging of juveniles and so on. There is a wider context. He is quite right to say, and we do not pretend this to be the case, that one Bill, with only three clauses, will provide the total solution to the problem. We believe that it is a necessary part of that picture and we are emboldened by the strong desire from the industry and the police to move forward.

The noble Lord, Lord Dixon-Smith, invited me to make a judgment about whether he was guilty of creating an offence. We have not yet passed the Bill, but had we done so, I would say that he was not guilty. Although he may have downloaded the software, I have known him long enough to believe that there was no intent to go with it. Is my judgment wrong?

Photo of Lord Dixon-Smith Lord Dixon-Smith Conservative

I thought I had made it plain that the offence would have been mine if the Minister accepted my amendment.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

I rest my case. The central point is that the Bill states that one has to have the means to change it and the prosecution has to prove the intent at the same time. In that context, my noble friend Lord Campbell-Savours ingeniously suggested that he, in possession of a table on which his PC sat, may potentially be in danger. One cannot use a table for the purpose of,

"changing or interfering with the operation of a unique device identifier".

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

I said "cable" not "table"!

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

Despite my hearing, I believe that the point still stands. A cable by itself is not capable of reprogramming a mobile phone in that way. Only software has that capacity. Therefore, I believe that he is safe with his cable, or even his table!

Let me say that, while we are appreciative of the challenge from the noble Lord, Lord Dixon-Smith—it is right and necessary to ensure that we get it right—we do not believe his amendment to be necessary. It reflects his clearly expressed concerns at Second Reading that the offences proposed in Clause 2 of the Bill may criminalise legitimate retailers and people who own computers and software programmes which are capable of changing mobile telephone numbers.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

My noble friend says that a cable could not be so used. In fact the Bill says,

"A person commits an offence if . . . he offers to supply anything which may be used for the purpose of changing or interfering with the operation of a unique device identifier and . . . he knows or believes that the person to whom the thing is offered intends if it is supplied to him to use it unlawfully for that purpose or to allow it to be used unlawfully for that purpose".

He could use a cable as an interface. It would form part of the equipment that is required. All I am asking is whether, if the dealer sells a cable and it can be shown that he may have known it was going to be used for this purpose, he is committing an offence.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

That is a slightly remote set of circumstances. I cannot see how a dealer could be aware that a cable by itself was to be used for the purposes that we are focusing on in terms of mobile phone theft.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

Perhaps I can come back to my noble friend; I am sorry to press this matter. I was told today that that is precisely what dealers do. They offer for sale this equipment for those purposes. Perhaps we can come back to this on Report having gathered a little more information. I am not trying to be difficult, but I feel we should consider that it is not only the software that we are talking about.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

I can give the assurance that my noble friend seeks: if we are not able to satisfy him before then, we shall return to this on Report. We will clearly check whether, on a common sense interpretation of the law as drafted, there is any risk of the type he implied. The broad thrust, as I expressed earlier, is that a dealer is only liable if he seeks to sell such equipment or undertakes such activities with an intent to commit the offence that we are seeking to prevent.

The amendments of the noble Lord, Lord Dixon-Smith, would replace the offence in Clause 2(1) of the Bill. Clause 2(1) provides that a person who possesses anything which can be used to change an IMEI number, and intends to use it or allow it to be used for that purpose, commits an offence. The offence covers all the equipment or software that may be used for reprogramming, which is perhaps the point of my noble friend, even if it was not designed with that in mind. The amendments would remove from the offence the need to show intent. It would be a defence if the person concerned could demonstrate that he was required to have possession of the equipment or software for legitimate purposes.

The Government's position, as I explained in my letter to the noble Lord, Lord Dixon-Smith, is that we do not believe the concern to be justified. We accept that the equipment required to re-programme the identification number may also be used for legitimate purposes. However, the requirement in Clause 2 to show intent will mean that the Bill will not criminalise people who legitimately possess equipment which can be used to change an IMEI number. The offence is only committed if there is proof both of possession or of supply of the equipment and of intent to use it to change the number. It is that lock of the two that is central to the offence.

The provision has been drafted in close consultation with the police, the Crown Prosecution Service and the mobile phone industry to ensure that it does not cover the legitimate use or supply of equipment. The noble Lord previously explained that he sees a difficulty with proving intent. But the concept of intent and belief are already used extensively in criminal law without major difficulty. For example, the Theft Acts create the offence of theft where a person dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. The courts have held that intention can be deduced from the circumstances of a case.

In many cases a defendant will deny that he intended permanently to deprive the owner of the property. But the courts will look to what the defendant did with the property to ascertain his intention. So under Clause 2 of the Bill, in the absence of a confession, the courts would look to see what the defendant knew and to what use he had put the equipment in order to ascertain his intention. In the context of the Bill proof of intent may emerge from evidence gathered by the police in targeted, intelligence-led operations; for example, where a stockpile of handsets with the same IMEI number was found in the custody of an individual who also possessed the relevant equipment. In that circumstance one could envisage that the Crown Prosecution Service would feel that there was a reasonably strong case to answer.

The police and the CPS are confident that they will be able to mount successful investigations and prosecutions under the Bill. They are currently working on joint charging standards to ensure that the legislation has the maximum effect. Therefore we do not consider the amendments to be necessary to safeguard owners or suppliers of equipment or software which is used legitimately. I can add weight to that by instancing the sort of work already being undertaken by the Merseyside Police Force, which is in the process of identifying the retailers who currently supply such equipment and giving them advance warning of the Act, ensuring that they are aware of what they need to do to avoid any risk of criminality on their part.

In the light of my remarks, I hope that the noble Lord, Lord Dixon-Smith, will accept that, while this is by no means the total solution to mobile phone theft, it is a necessary part of it. We believe it makes progress. It will support the initiatives that the mobile phone industry has put in place to reduce mobile phone theft, and it is important that the Government respond in this way. But it needs to stand alongside many other measures which are currently under way.

Photo of Lord Dixon-Smith Lord Dixon-Smith Conservative

I do not intend to be facetious when I say that the Minister, in explaining why he rejects my amendment, actually supported the amendment that I could not move. He said that one of the circumstantial facts that the police would take into account in judging an offence under the Bill is the possession of a cache of mobile phones with the same IMEI number. If that was an automatic offence people might not do it, and it would in fact be quite a disincentive.

The Minister gave a considerable explanation as to why the Bill will work and why my amendment may not be necessary. But he did not pass an opinion as to whether or not my amendment would strengthen the Bill. I am grateful to the noble Lord, Lord Dholakia, for his remarks, and more importantly to the noble Lord, Lord Campbell-Savours, for his brief intervention, which indicates how technically difficult the problem is with which we are dealing. In the circumstances it is probably prudent for me to say that we will study the Minister's response. Perhaps we can meet before the next stage of the Bill to see if we can resolve our differences off the Floor of the House, which would be a happy outcome. If not, we may need to return to this matter in due course. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 [Possession or supply of anything for re-programming purposes]:

[Amendment No. 2 not moved.]

Clause 2 agreed to.

Clause 3 agreed to.

House resumed: Bill reported without amendment.