Summarising, lots of valid points made about the over broad reach of the bill and its scope for injustice. But the bullying Maria Eagle just points out the images could possibly play a part in the process of child abuse or else lead on to child abuse. And then all reasonable concerns are overruled.
So we will get a law that will ruin the lives of many innocent people just in the unlikely case that prosecutors can’t find more concrete evidence against real abusers.
Coroners and Injustice Bill
House of Commons Committee
3rd March 2009
Edward Garnier: …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. 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: Would the hon. and learned Gentleman be making a similar distinction if the images were used to groom real children for abuse?
Edward Garnier: 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: I accept the hon. and learned Gentleman’s point, but the image in his example is not illegal. That is the point.
Edward Garnier: 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.
Edward Garnier: 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: …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: 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: 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.
Jenny Willott: 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: 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?
Jenny Willott: 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.
Madeleine Moon: 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.
Jenny Willott: 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.
Maria Eagle: 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: 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: Downloading.
Edward Garnier: 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 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.
Jenny Willott: Clearly, when we have a photograph of an actual person it is much easier to determine someone’s age. We can work out how old they were when the photograph was taken. When it is an imaginary figure that is drawn, a number of concerns have been raised— including in some of the responses to the consultation—that Japanese art forms in particular are often ambiguous, so it is difficult to decide how old the figure is. My amendment proposes to delete the entire subsection. I know the thinking behind it is obvious, but I am not sure how it can be properly implemented without pulling into it all manner of things that probably should not be illegal. For example, images of an 18-year-old who is dressed as a child, such as Britney Spears in a pop video, clearly is not illegal. If it was a drawing, however, it could be illegal because it would be very difficult to work out whether the person in the picture was supposed to be over 18 or under 18 and dressed up as a school girl.
Maria Eagle: Has the hon. Lady looked at the images listed in the clause?
Jenny Willott: No, I have not, but I know what the Government intend and they have made it very clear. However, the definitions in the Bill are much broader, so it could include all manner of things that the Government do not intend to make illegal. The Minister is shaking her head and clearly disagrees, but a number of people have contacted members of this Committee to raise their concerns about how broad the measure is. I have no doubt that the Minister’s intention is to cover the most horrific group of images. My concern is that the definitions in the Bill are vague and subjective and do not focus down to that very small group. I should be grateful if the Minister could comment on that. As these are probing amendments, I do not intend to push any of them to a vote.
Maria Eagle: I will deal with the amendments, but let me just say something about the definitions. The hon. Lady said that she has not seen any of the images and does not want to look at them. I do not blame her, but let me explain the definitions, which she has suggested are far too wide, of the mischief that we are trying to deal with.
An image can be a moving or a still image. It would also include data stored by any means, for example electronic files, which is capable of being converted into an image. This means that the term image will cover material available on computers, mobile phones or other electronic devices. The law on photographic images will remain unchanged. Therefore, for the purposes of this offence, the definition of an image excludes an indecent photograph, or indecent pseudo-photograph, as defined in the Protection of Children Act 1978 and the equivalent Northern Ireland legislation.
In respect to the meaning of a child, which she has expressed some concern about, that means a person under the age of 18 years. The law covers indecent photographs and pseudo-photographs and, therefore, includes computer-generated images that appear to be photographs. The development of this new offence, as I explained before, has been prompted by the concerns of the police and child protection agencies, dealing with an emerging, serious gap in the law that they have perceived, about the rise and discovery of explicit, non-photographic images depicting the kind of horrific sexual abuse of children that all of us would want to prevent, including, for example, computer-generated images that would not meet the definition of pseudo-photographs, and explicit cartoon and hand-drawn images.
The images that we are discussing, such as computer-generated images, would not meet the definition of pseudo-photographs—significantly explicit cartoon or hand-drawn images. Although the images are likely to fall foul of our publication and distribution provision, it is currently lawful to possess them. One of our major concerns is that the images could be used for grooming a child in preparation for actual abuse, and in the way that my hon. Friend the Member for Bridgend set out in her contribution to a previous group of amendments.
Amendment 489 would remove images such as cartoons or drawings from the scope of the offence. We believe that that is an unacceptable limitation. Children see cartoon images regularly in day-to-day life. They are a well-accepted form of entertainment for children, and the characters are often well known. An offender could easily exploit that familiarity, using explicit images created in such formats, and such graphic cartoon images could be a powerful grooming tool. Reducing the scope of the offences described in amendment 489 by the hon. Member for Cardiff, Central could leave explicit cartoon images in circulation and open to serious misuse, and without the provision the police would be unable to remove them from people’s possession. The amendment would create a loophole in the law and in the new offence, which would be exploited.
Amendment 491 would remove subsection (6)(b) from the definitions. Subsection (6) provides that an image of a person should be treated as an image of a child if
“the predominant impression conveyed is that the person shown is a child despite the fact that some of the physical characteristics shown are not those of a child.”
I appreciate that that last point may sound unusual, but it is important to cover circumstance in which a person may try to avoid prosecution by amending the image of a child slightly—for example, by adding antennae or animal ears, and then suggesting that the subsequent image is not a child. That is a real concern. The people who seek to exploit the provisions and to continue to create what they call legal child pornography on the internet will use every loophole to try to escape the offence. It has been carefully structured and amendment 491 could create another loophole that would render ineffective the offence that we are seeking to create. We structured the provision carefully to capture only the images that cause concern. We believe that it is a robust and sensible response to the concerns raised with us by the police and agencies at the forefront of child protection.
Amendments 489 and 491 would only water down the offence, leaving it incapable of dealing with some of the worst images available, and providing a pointer to those who wish to exploit the situation about how to avoid the law. They would leave a gap that could be easily exploited.
Amendment 490 seeks to add a further element to our definitions. It would add a reasonable person test so that an image would be treated as one of a child if a reasonable person would consider the impression conveyed by the image of the person shown to be that of a child. We believe that that test is unnecessary and unhelpful because the words in clause 52(6) are deliberately similar to those that are well established in section 7(8) of the Protection of Children Act 1978, which have helped to clarify the content of pseudo-photographs. Those definitions have been in use for some years, the courts are familiar with them, and the definitions in our new offence have been tailored to ensure continued clarity and ease of understanding. Amending the definitions in the way proposed by the hon. Lady in amendment 490 would lose that continuity of understanding and reduce the clarity of the definition. For those reasons, I hope that the she will consider withdrawing her amendment.
Jenny Willott: One of the Minister’s first comments was that I had raised a concern about the definition of a child. I want to make it clear that that is not an issue that I raised. I raised a specific concern about the definition of an image and how we know the age of a person in the image. The Minister has responded to both issues, but I want her to clarify again the fundamental point, because I am not entirely sure that she understood where I am coming from or my argument.
The argument is not a libertarian one that people should be able to do what they want as long as they do not cause harm to others. That is not the argument that I am framing. We know, as the hon. Member for Bridgend said, that the behaviour of people with paedophile tendencies escalates. I absolutely accept that. However, the argument that I make is that there is evidence that access to non-photographic materials acts as a release for people who would otherwise go on and harm children.
At some point, possibly on Report, we need to return to the issue of what evidence there is about whether the measures we are debating are likely to cause more harm to children because there will not be that access to a release. I am prepared to accept the clause if the Government are able to show that there is evidence that such materials cause harm and generate more problems for children. So far, I have not seen any evidence and the Minister has not referred to any in her comments about the arguments on both sides of that debate. I am not arguing for a libertarian approach—this concerns what is best for children while not criminalising people who are not doing any harm.
That said, I beg to ask leave to withdraw the amendment.
Update: Criminalising One’s Own Imagination
21st March 2009. See transcript from publications.parliament.uk
The dangerous cartons debate continued into parliamentary questions to the Justice Secretary on 17th March 2009:
The Parliamentary Under-Secretary of State for Justice (Bridget Prentice): In 2000, we increased the maximum sentences available for production and distribution of indecent images of children from three years to 10 years, and for the simple possession of indecent images from six months to five years’ imprisonment.
George Howarth (Lab): I thank my hon. Friend for that answer. Does she agree that not only are images based on real children unacceptable, but so too are images that people use for these purposes that they have generated either from their own imagination or electronically? Will she give the House an assurance that her Department will not be going down the route of believing that those sorts of images are a matter for the individual concerned and their own conscience?
Bridget Prentice: I can absolutely give my right hon. Friend that assurance. He will have been as surprised as I was when in the Coroners and Justice Public Bill Committee the Opposition spokesman, the hon. and learned Member for Harborough (Mr. Garnier), said that he felt that our clause was, perhaps, over-egging the pudding. I do not for one minute think that taking action against these people in this way is over-egging the pudding. We need to protect our children.