Clause 47 - Indecent photographs of persons aged 16 or 17

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

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Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism) 9:10, 18 September 2003

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.