Clause 47 - Indecent photographs of persons aged 16 or 17

Sexual Offences Bill [Lords] – in a Public Bill Committee at 9:10 pm on 18th September 2003.

Alert me about debates like this

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey 9:10 pm, 18th September 2003

I beg to move amendment No. 231, in

clause 47, page 24, line 7, leave out subsection (3).

Photo of Mr Win Griffiths Mr Win Griffiths Labour, Bridgend

With this it will be convenient to discuss the following:

Government amendment No. 91.

Amendment No. 232, in

clause 47, page 24, line 22, leave out subsection (4).

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

The amendment was tabled because of concern about the exception when a child aged 16 or over consents to the activity in question. Clearly, the Government share that concern, and their amendment reassures me greatly.

The age of consent for sexual activity is 16, but we are discussing a little more than sexual activity in situations in which a photograph could be taken. Although the clause states that photographs should not be widely distributed, such matters would be difficult to police. As soon as a picture has been put on the internet, a 16 or 17-year-old might bitterly regret the decision to consent. I would not like to have some of the decisions that I made at that age to be with me for the rest of my life—[Laughter.] Nothing very interesting, I assure the Committee.

Subsections (3) and (4) refer to

''a child aged 16 or over''.

The intention behind the Bill is to protect children, but subsections (3) and (4) ensure that it fails to protect all children. I very much welcome the Government amendment, even though it contains a marriage exception and I would prefer such provisions to be left out of the Bill. The amendment does not relate only to a marriage in the traditional sense, but to an ''enduring family relationship''. That is a welcome step forward and the phrase should be used in a couple of other clauses that refer to marriage exceptions. Perhaps the Government will examine those clauses to see if their wording could be made more relevant to Britain today—a matter that was raised by my hon. Friend the Member for Mid-Dorset and North Poole (Mrs. Brooke).

The exceptions in the proposed new section 1A to the Protection of Children Act 1978 will leave the police in their current position when faced with a case of rape. They would have to argue and prove—or disprove—consent. Even if they are married, 16 or 17-year-olds should not be put in that position.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I have great sympathy with the amendment tabled by the hon. Member for Romsey (Sandra Gidley). When I read Government amendment No. 91, which as she rightly said goes a long way towards meeting our concerns and is therefore to be welcomed, it struck me that we are complicating matters. Perhaps it is worth going back to first principles.

We accept the principle that the age of consent is 16, and that people can marry at that age. At the same time, we accept that 18 is the right cut-off point in laws pertaining to the family or to the protection of minors. I therefore do not find anything philosophically wrong in providing restrictions on what is permissible with a child under 18, even though I may be perfectly content and comfortable with the idea that 16 is the age of consent. Those two things are very different. It is possible to be married to somebody without feeling that it is right to take indecent photographs of him or her.

During our previous discussion of the marriage exception, I have tended towards the view of the hon. Lady—although I would not press the matter to a Division. Why are we providing an exception at all? If we think that it is right to protect those under 18 from having indecent photographs taken of them, and from the consequences that flow from that—for example, pictures might be put on the internet and never removed—why are we getting so anxious about providing exceptions? I will be interested to hear the Minister's response.

I understand the concept of privacy of marriage, and that a 17 year old who is lawfully married might want to have indecent photographs taken. On the whole, I think that taking indecent photographs of people is undesirable; presumably the Minister does too, or we would not have clause 47. If we agree that it is an undesirable activity, but we accept that adults over the age of 18 must be allowed to do it if they want to, why are we so concerned about allowing an exception for that two-year period?

Subject to that, Government amendment |No. 91, which we will hear about in more detail later, is perfectly sensible. It tries to weave its way through the problem. The thing that worries me about the amendment is the phrase, ''enduring family relationship''. How long is a piece of string? Is a relationship enduring after a girl has been with her boyfriend or lived with him for two weeks, or six months, or nine months? Once again, we will have to ask the courts to disentangle that issue. Although I fully understand the intention behind the phrase, it worries me that we will end up with problems in deciding what an enduring family relationship is. I wait to hear from the Minister. I hope that we have a dialogue on the issue.

Welcome as the Government amendment is, I wonder, like the hon. Member for Romsey, whether we are making our lives excessively complicated. Why do we not just say, ''No indecent photographs of children under 18, irrespective of the circumstances''? It does not seem to me that the infringement of privacy and the rights of the individual would be so great that that would be improper.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

I could answer that last question very simply: the hon. Gentleman may think that we are making heavy weather of the clause and making things excessively complicated, but that is because life itself is complicated. We are trying to weave a way through—a phrase that he used—the competing imperatives with which we are grappling. We are trying to find satisfactory protection from exploitation for people under 18, while acknowledging that over-16s can consent to sexual activity and can marry. We want to accommodate the competing imperatives of protecting the privacy of a marital or enduring relationship and of ensuring the maximum protection for children and young people.

Amendments Nos. 231 and 232 would remove completely the exceptions provided in subsections (3) and (4), which permit the taking, making and possession of an indecent photograph of a child over 16 with the consent of that child; they also include its distribution to the child. The amendments do not replace those exceptions. The hon. Member for Romsey believes that no exceptions are appropriate—she has made that clear. We believe that some limited exceptions are appropriate, but we accept that the current drafting of the clause is flawed, which is why we have tabled Government amendment No. 91.

Clause 47 raises the bar on indecent photographs and pseudo-photographs of children—by inserting new provisions into the Protection of Children Act 1978 and the Criminal Justice Act 1988—to include those depicting children aged 16 and 17. That is in line with our international obligations to ensure that there is protection for children up to 18 from exploitation through pornography. We think that it is right to exclude from the offences those persons who are living in an enduring family relationship with or who are married to the child of that age who is depicted in the photograph.

The wording of the clause as it is drafted does not achieve that objective. It has become clear—after debate and consideration—that it might allow a person who is not in such a relationship to take or possess an indecent photograph of a child, albeit with the child's consent. It is also defective in that it does not protect a person who possesses an indecent photograph of his 16 or 17-year-old partner, unless he took that photograph. That is why we tabled Government amendment No. 91, which makes the establishment of the relationship the core—the central feature—of the exception.

I shall get to the point raised by the hon. Member for Beaconsfield (Mr. Grieve) in a moment. I am confident that the amendment will allow persons in a marriage or other enduring relationship to take, make, possess, or show to each other indecent photographs of one another, if they wish to, without fear of prosecution. I have checked with officials to ensure that that does not allow a loophole for anybody else to be involved in any other way. The exception will cover a person who can prove that he was living as a partner in an enduring family relationship with or married to the child aged 16 or over in the photograph. In no case

may any person other than the child or the partner be in the photograph, nor may it be distributed to any person outside that relationship—and no other person may involved in the taking or making of the photograph.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

Does that mean that somebody who had an enduring family relationship with a 16-year-old that lasted a year before breaking up and who took pornographic photographs of her during that time could keep those photographs for the rest of his life, as long as he kept them in his wallet?

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

It will mean that. However, if he shows those photographs to anybody else, or distributes them in any way, he will be committing an offence. The caveat to that is the consent of the child.

Photo of John Randall John Randall Conservative, Uxbridge

Perhaps I should know this, but when the Minister says that no one else can be involved, does that mean that sending the photographs to the chemist or developers counts as other people seeing them? Should I know the answer to that legal point?

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

I should know the answer. We are not changing the position under current legislation whereby such persons would not be liable. I understand that such persons would not be liable for developing the photographs. If there was a criminal offence, it would pertain to the people involved in the activity.

Photo of John Randall John Randall Conservative, Uxbridge

I am querying what would happen if the photographs were viewed by somebody else, albeit in a technical sense—bearing in mind that we are talking about photographs of children under 18, rather than adults.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

We are talking about activities being investigated by the police or Crown Prosecution Service that involve people who have taken part in a meaningful way in the production of photographs or pseudo-photographs without the consent of the child. A person who developed photographs could technically be liable, as is the case now, but it is unlikely that they would be prosecuted if they had simply developed the photographs. The focus of the police investigation and prosecution would be on the people who had perpetrated what was regarded as the core of the offence.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I am sorry but I am going to take the Minister of State back to the other point. She said that the person has to consent, but the person has to consent to the taking of the photographs at the time when they were taken. Six months later, when the so-called enduring family relationship has come to an end, that person might be unhappy about those photographs still being in circulation, but there is no criminal sanction in those circumstances with regard to the retention of the photographs in someone's wallet for the rest of his life.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

That may well be the case, but that person would have other forms of redress, as the hon. Gentleman knows. However, if originally there was consent, that would not come within the province of this criminal offence.

Government amendment No. 91 makes the relationship that I have been talking about the central feature of the exception. I am confident that the amendment will allow persons in a marriage or other enduring relationship to make, take, possess or show pictures of each other to each other but will not allow anybody else to be involved in the commission of those activities.

The exception will cover a person who can prove that he was living as a partner in an enduring family relationship with the child, or that he was married to the child. Having proved the marriage or other relationship, there is an evidential burden on the defendant to raise an issue in relation to the child's consent to the taking, making or possession of the picture, and his reasonable belief in that consent. In relation to the showing or distribution offence, the defendant is covered by the exception, unless it is proved that the photograph was shown to anyone other than the child.

There is not a marriage exception in the Protection of Children Act 1978. Until this Bill is enacted, only children up to the age of 16 will be protected under that Act. When considering what exceptions are appropriate for the offences now that we are raising the age of the child to 18, we have decided that the marriage exception should apply equally to lawfully contracted foreign marriages that are also recognised as valid under the laws of England and Wales. There was a considerable debate on Tuesday in relation to the marriage exception, which applies to child sex offences: as a result of that, we need to re-examine this position. A level of protection from exploitation for young people is appropriate. That is why I cannot accept the Liberal Democrat amendments.

The hon. Member for Beaconsfield raised the question of how we define enduring family relationships. He is right that the courts must be left to make that decision in the light of individual circumstances. If he is suggesting that we should try to define that in the Bill, most hon. Members would sensibly recoil from that. However, the fact that it is difficult to define that in the Bill is not in itself a valid argument for not allowing in law the courts to take a view that two people have an enduring relationship that, in their circumstances, is tantamount to marriage and that should therefore be regarded as equivalent to marriage in the context of the exception that we are proposing.

Photo of John Randall John Randall Conservative, Uxbridge

My only question for the Minister of State is on the last point about enduring family relationships. I offer a layman's point of view. We have been discussing some things that we can set out and let the courts decide on, but we have been saying that other things are too difficult for a court and they give too much leeway to the lawyers to argue. It might be possible to apply the phrase ''enduring family relationship'' to people over 18, but what about if it is applied to somebody of 16 and two months? It would be very difficult, either way, to prove that it is enduring.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

I agree, and I am sure that that would be the view taken by those deciding whether to

prosecute and by the court when considering the circumstances of such a case.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I am grateful to the Minister and I am extremely sympathetic to the Government's difficulties in trying to steer a course that reconciles the rights of individuals in their private lives with public protection of children. The Government introduced the clause because they thought that there were compelling reasons why protection against the dissemination and taking of photographs should be extended beyond the age of 16 to 18. That is the rationale, otherwise the law would be left as it stands. People, whether they are married or not, may be in need of protection.

I worry about the phrase ''enduring family relationship''. I cannot remember the statistics on marriage, but I seem to recollect that the rate of break-up of relationships relates in part to the age when the relationship was first entered into: the younger the age of the partners at the start of a relationship, the higher the rate of break-up tends to be. That does not apply universally and I can think of a number of childhood sweethearts who married and lived happily ever after, but there is some evidence that relationships that start at a young age often do not endure. The Minister accepted that, although civil proceedings could subsequently be taken to protect the person who originally consented to the photographs being taken but who was no longer happy about it, another person may remain in possession of the photographs.

The Minister said that we can approach the matter when we return to the famous marriage exception. The Government are looking at that, but unless the marriage exception to sexual intercourse generally is changed, a foreigner who comes to this country to live with his 13-year-old bride could take pornographic photographs of that 13-year-old bride and come within the exception provided in the clause.

There are two ways of approaching that problem—one is to get rid of the marriage exception—but it highlights a substantial loophole in the Bill. I do not know what the Committee's view is or what the Minister proposes to do if the matter is pressed to a Division, but I would prefer to go away and think about the problem, as we have done previously in the Committee. There is a general feeling of unease in the Committee about the provision. I accept that people have rights to privacy and to respect for their married life. It is rational to argue that if two 17-year-olds are married and want to take pornographic photographs of each other, that is a matter for them. However, the Government accept that 18 is the age at which they would prefer such decisions to be made and I wonder whether we are not making life too complicated. Why do we not just say: no indecent photographs under 18, full stop?

The Minister has not wholly satisfied me of the civil liberties and philosophical reasons for not specifying the age of 18. I am sure that some great debate took place in the Home Office, but the Minister has not persuaded me. Such matters are peripheral to people's private lives and if intimate relationships founder because the state prohibits the taking of pornographic photographs, the sooner they founder the better. In the circumstances, the Bill should just say 18.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

I, too, think that there is a strong case for saying that this decision can be taken only by an adult, whether they are married or not. This may seem a light-hearted suggestion, but I just want to make the point that 16 and 17-year-olds need parental permission to get married. Should we be considering parental permission for such photos? I really do not know.

We are trying to protect children, even though they are married. Many agencies regard 16 and 17-year-olds as children. There are long-term effects when relationships break down and a partner is aware that the other partner has such material available and is not quite sure how they will use it. That is worrying.

I recently became aware of a case of homophobic bullying over the internet. It involved superimposing a person's face over somebody else's body to make a composite picture. I wondered what would happen if pictures were distributed in that amended form, having been taken within a marriage or enduring relationship at an age of 16 or 17. I am concerned that, if a relationship breaks up and somebody wants to make mischief, there are many creative ways in which to do that. I am not wholly convinced that the provisions give the sort of lifelong protection that we seek for somebody of that age.

I will not push the amendment to a vote. We will rethink the matter for Report stage. However, I am not entirely sure that the Government amendment does all that could be done.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

In her example, the hon. Lady was talking about pseudo-photographs. The exception would not apply to those. In any case, the consent that we discussed earlier can be withdrawn. It must be continuing consent. So, those kinds of photographs are not covered by the exception, and, in any case, consent would be required.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

I thank the Minister for that clarification. I will withdraw the amendment. I am not convinced that the Government have got things completely right and we may wish to revisit the matter on Report.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

Another thing that we ought to think about has just crossed my mind. One way or another, we are potentially sanctioning the bringing into circulation—admittedly at this stage just for private use—of pornographic photographs of young boys or girls. If subsequently, at the age of 18, consent were given, those photographs could easily go into general circulation. We are worried about the problem of child pornography, but we are providing a loophole for its production, because, as I understand it, its circulation can postdate by many years the date on which it was originally produced.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

The hon. Gentleman raises a good point. There are also well publicised situations involving people who are perhaps not within relationships. If people become famous, photographs can be used retrospectively. The hon. Gentleman makes an excellent point about providing a loophole for pictures of young children. Not all 16-year-olds look 16, 17 or 18. There are some very young-looking 16-year-olds whose photographs could be used titillate

those who have a taste for such things. I am not sure that that is something that we should encourage. However, at this stage, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 91, in

clause 47, page 24, leave out lines 8 to 27 and insert—

'''1A Marriage and other relationships

(1) This section applies where, in proceedings for an offence under section 1(1)(a) of taking or making an indecent photograph of a child, or for an offence under section 1(1)(b) or (c) relating to an indecent photograph of a child, the defendant proves—

(a) that at the time of the offence charged, he was married to the child, or

(b) that the photograph was of the child aged 16 or over, and that at the time of the offence charged, the child and he lived together as partners in an enduring family relationship.

(2) Subsections (5) and (6) also apply where, in proceedings for an offence under section 1(1)(b) or (c) relating to an indecent photograph of a child, the defendant proves—

(a) that at the time when he obtained the photograph, he was married to the child, or

(b) that the photograph was of the child aged 16 or over, and that at the time when he obtained it the child and he lived together as partners in an enduring family relationship.

(3) This section applies whether the photograph showed the child alone or with the defendant, but not if it showed any other person.

(4) In the case of an offence under section 1(1)(a), if sufficient evidence is adduced to raise an issue as to whether the child consented to the photograph being taken or made, or as to whether the defendant reasonably believed that the child so consented, the defendant is not guilty of the offence unless it is proved that the child did not so consent and that the defendant did not reasonably believe that the child so consented.

(5) In the case of an offence under section 1(1)(b), the defendant is not guilty of the offence unless it is proved that the showing or distributing was to a person other than the child.

(6) In the case of an offence under section 1(1)(c), if sufficient evidence is adduced to raise an issue both—

(a) as to whether the child consented to the photograph being in the defendant's possession, or as to whether the defendant reasonably believed that the child so consented, and

(b) as to whether the defendant had the photograph in his possession with a view to its being distributed or shown to anyone other than the child,

the defendant is not guilty of the offence unless it is proved either that the child did not so consent and that the defendant did not reasonably believe that the child so consented, or that the defendant had the photograph in his possession with a view to its being distributed or shown to a person other than the child.''

( ) After section 160 of the Criminal Justice Act 1988 (c.33) (possession of indecent photograph of child) insert—

''160A Marriage and other relationships

(1) This section applies where, in proceedings for an offence under section 160 relating to an indecent photograph of a child, the defendant proves—

(a) that at the time of the offence charged, he was married to the child, or

(b) that the photograph was of the child aged 16 or over, and that at the time of the offence charged, the child and he lived together as partners in an enduring family relationship.

(2) This section also applies where, in proceedings for an offence under section 160 relating to an indecent photograph of a child, the defendant proves—

(a) that at the time when he obtained the photograph, he was married to the child, or

(b) that the photograph was of the child aged 16 or over, and that at the time when he obtained it the child and he lived together as partners in an enduring family relationship.

(3) This section applies whether the photograph showed the child alone or with the defendant, but not if it showed any other person.

(4) If sufficient evidence is adduced to raise an issue as to whether the child consented to the photograph being in the defendant's possession, or as to whether the defendant reasonably believed that the child so consented, the defendant is not guilty of the offence unless it is proved that the child did not so consent and that the defendant did not reasonably believe that the child so consented.'''.

—[Beverley Hughes.]

Photo of Paul Beresford Paul Beresford Conservative, Mole Valley

I beg to move amendment No. 230, in

clause 47, page 24, line 27, at end insert—

'(5) Section 5 of the Protection of Children Act 1978 (c.37) shall be amended as follows—

(a) After subsection (6) shall be inserted—

''(6A) Where a person is convicted or cautioned in respect of an offence under section 1(1) of this Act, then any equipment that has been used to take, make, store or distribute indecent images of children shall be forfeited.

(6B) Section 14(1) of the Powers of Criminal Court (Sentencing) Act 2000 (c.6) shall not apply for the purposes of this section.

(6C) Where equipment has been the subject of forfeiture under section (6A) above, a person, other than the person convicted under section 1, shall be entitled to apply to the relevant magistrates' court for return of the equipment if—

(a) the equipment forfeited belonged not to the person convicted under section 1 but to the applicant, and

(b) the applicant did not have knowledge of the taking, making, storing or distributing of indecent images of children, nor could he be reasonably expected to have known.

(6D) The burden of proof for the purposes of section (6C) shall be on the applicant, and the standard of proof shall be the preponderence of probabilities.

(6E) Where the court is satisfied that the conditions set out in (6C) above are met, they may order the return of the equipment to the applicant so long as any indecent images that remain on the equipment can be permanently erased.''

(b) In the first line of subsection (7) the words '(2), (6) or (6A)' shall replace '(2) or (6)'.''.'.

You and the Committee, Mr. Griffiths, will be very aware from our discussions and the briefing that paedophiles collect all sorts of things. The Committee's predominant concern is pornographic photographs, prints, drawings and other images. In the past, those have been kept as hard copy, as we now call it, or on 8 mm film and videos. However, for the purposes of self-stimulation, distribution and membership of various paedophile groups, paedophiles are now using computers. They often store information on hard discs of computers, but, increasingly often we find that their computers do not have hard discs; they use floppy discs, storage pens, CD-ROMS, DVDs and, increasingly, remote storage. Crucially, stored material may be encrypted and the keys to the encryption, or at least some aspects of it, are probably on the computer.

The present situation is that if a paedophile is convicted, the police need to get a court order in respect of the equipment. To my regret, I find that that does not always happen—it should happen, but it is not automatic, and the police or the CPS may forget to ask. There is another aspect to my amendment. An individual who is cautioned can ask for the equipment

to be returned, as can those who have been pursued by court order and had equipment taken away. Generally, the police try not to give the equipment back. Frequently, the material on them can be deleted, but it is possible to retrieve material after a straightforward deletion. I understand that forms of overwriting can overcome that, but the police should not be put to that extra task. This may be apocryphal, but I understand that sometimes equipment ''suffers an accident''. Somewhere in the office a hard disc is broken or trodden on, a floppy disc is lost or a CD-ROM is broken or severely scratched and so on. However, many paedophiles are beginning to realise that they can ask for the stuff back. I suspect that the Committee would agree that forfeiture should be automatic.

A recent interesting case caused me to rethink my amendment to deal with a situation in which not all the equipment belongs to the convicted or cautioned individual. A House of Commons clerk had used House of Commons machinery. According to my original thoughts on the matter, in that case, the House of Commons would not have got its machinery back, which would be somewhat sad. I therefore added a bit to the amendment to allow an application for retrieval by the owner of the equipment, if the owner is not the perpetrator of the offence.

I shall not press the amendment. As I did not have a legal career before Parliament, putting amendments together can be rather difficult, particularly in my position, where the maximum number I can count to is about 32, for obvious reasons. I have to be somewhat careful. Even this morning, I found a potential flaw in the amendment. In a way, I have set the police an impossible task—increasingly, the computers that are being seized have no hard disc. They are booted with a floppy disc and put online to pick up material, particularly using servers that are in countries such as Nigeria, which is not very interested in the sort of stuff that is stored on computers. Such computers would be impossible to seize, so I probably should have included a provision in the amendment to specify any equipment taken by the police as part of their investigation, or some argument along that line.

However, I suspect that the Committee is au fait with what I am trying to do. I hope that Members will agree with the thrust of the amendment and that after a short discussion we can accept the intention and on Report have an amendment written by someone who is not from my professional background but who is legally qualified.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I thank my hon. Friend for drafting the amendment. Viewed from a lawyer's perspective, it seems rather clearer than if it were the product of legal minds. It clearly shows its intention. It also strikes me as being very sensible, and I therefore hope that the Government will view it favourably.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I simply reinforce what my hon. Friend the Member for Beaconsfield has said. I congratulate my hon. Friend the Member for Mole Valley (Sir Paul Beresford) on his outstanding work over the past few months, which has done the Committee a great service.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism) 9:45 am, 18th September 2003

I sympathise with the idea behind the amendment. The hon. Member for Mole Valley knows from the time when I chaired the taskforce that I appreciate all his work not only on the Bill but in this area. I know the spirit in which he has tabled the amendment.

There is an issue about the possible return of computers—or, as the hon. Gentleman says, other kinds of equipment on which indecent photographs can be stored—to a person who has used them to commit an offence under the Protection of Children Act 1999. The hon. Gentleman acknowledged that we must consider several issues.

On one hand, I share the hon. Gentleman's concern that the existing legislative provisions for making an order are not always applied for or thought about. I have discussed the matter with officials, and we cannot say hand on heart that there is a robust mechanism that will always retain computers and equipment containing such material. On the other hand, we must work out several sets of issues. First, the hon. Gentleman mentioned the drafting of the amendment, which is a technical issue that we can take away. Secondly, as has been said, there are apparently problems with permanently removing material from the hard drive. Furthermore, such material is often stored not on the hard drive but on floppy discs. Thirdly, how can we deal with equipment that is owned by someone who has not committed the offence? We must work our way round those issues and think of ways to accommodate that problem both in its own right and in relation to the technical issues, which I have just outlined.

If the hon. Gentleman agrees not to press the amendment to a vote, I will certainly take away the spirit of his proposals to see whether we can return on Report with something that addresses the issues that I have outlined while assuring the Committee that a robust mechanism will be in place to ensure that equipment is not returned when we suspect that it contains such material.

Photo of Paul Beresford Paul Beresford Conservative, Mole Valley

Police forces throughout the country will be grateful to hear the Minister's comments. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause, as amended, stand part of the Bill.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

I just want to explore the meaning of ''indecent''. Some have advocated the complete removal of the clause because they think it unworkable. I am not sure that I share that view. Some organisations, such as Liberty, have pointed out that it will be impossible to police the clause. The difficulty is establishing age. It has been suggested that a provocative picture of a teenage girl band—we all know that such things sadly exist—which is innocently aimed at teenage girls, could conceivably fall foul of the clause. I thought that somewhere in the Bill there might be a definition of what would be classified as indecent. I may have simply run out of patience and

got bored, but I could not find one anywhere. Can the Minister clarify where exactly the line between decency and indecency will be drawn?

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

The hon. Lady raises an interesting point. We all have our own definitions of what is decent and indecent, which may differ to some extent. I do not think that we can put a firm definition in legislation. The fact is that there is not a definition of indecent in this Bill or, as far as I am aware—I stand to be corrected—in any Bill. Rather, the definition of what is indecent is compiled over time in case law. I think that that is right because our ideas on what is decent and indecent change over time with social mores and cultural values. Our understanding of young people changes too. There is a compilation in case law, but no definition in the Bill.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

In other Committees on which I have served, where there is vagueness such as this the Government have usually said that they will produce guidelines so that the judge knows what is going on and can direct a jury. We seem to have a complete absence of that here. Perhaps we could have a current set of guidelines to take account of what is thought in 2003. Is that not a workable suggestion for the Government?

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

The judges and courts will be very familiar with existing case law and will apply their knowledge of that to individual cases. That is the right way to go about it because our ideas about the definitions change with time. It would not be helpful or feasible to try to establish a definition of indecency in legislation. That is much better left to the evolutionary approach through case law.

The clause will change the definition of a child in respect of indecent photographs under the Protection of Children Act 1999. The age will be raised from under 16 to under 18. The clause offers a reasonable but limited defence to allow the private use of indecent photographs of a child over the age of consent who consents and who is in the circumstances about which we have talked.

Question put and agreed to

Clause 47, as amended, ordered to stand part of the Bill.