Criminal Justice and Immigration Bill

Part of the debate – in the House of Lords at 5:15 pm on 30 April 2008.

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Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice 5:15, 30 April 2008

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.