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(a) after subsection (5A)(a) there is inserted- (b) after subsection (5B) there is inserted- “(6) This subsection applies where- (a) a person has been previously convicted of an offence contrary to section 1 of the Protection of Children Act 1978 or section 160 of the Criminal Justice Act 1988; or (b) the apparatus or data storage device containing the protected information contains an indecent photograph or pseudo-photograph of a child; or (c) the apparatus or data storage device containing the protected information has come into the possession of any person together with other apparatus or a data storage device which contains an indecent photograph or pseudo-photograph of a child; or (d) the court is satisfied that the protected information is likely to contain an indecent photograph or pseudo-photograph of a child. (7) Subsection (6) will not apply where the person to whom the notice is given can show that the protected information does not contain an indecent photograph or pseudo-photograph of a child. (8) In this section “indecent photograph or pseudo-photograph of a child” shall have the same meaning as in the Protection of Children Act 1978.”

The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 133 and 158. I have tabled the amendments to give the Government the opportunity to put on record any progress that may have been made on these matters since we debated them three months ago, on 11 July, as reported in Hansard atcols. 617-622. The two new clauses would strengthen the law dealing with sex offenders, especially those who offend against children. Amendment No. 132 deals with encrypted data found on computers and storage in cases where the police believe that the data contain abusive images of children. It does not seek to create a new offence but amends the sentencing regime under Section 53 of the Regulation of Investigatory Powers Act 2000.

Part 3 requires a person to comply with a notice issued by the police to hand over the encryption key for protected data. The penalty for breach is two years. That seems to us to be low given that the alternative penalty, if the information were turned over, would often be five years or more. We suggested increasing the penalty to achieve compliance. It could be done only in cases where the court was satisfied that it was more than likely that most of the encrypted data consisted of indecent photographs of children. After the last debate about “likely” or “principally”, I use those words rather carefully.

Amendment No. 133 would insert a new clause relating to offences requiring notification. It would ensure that Sections 48 to 50 of the Sexual Offences Act 2003, which make provision for the offences of

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recruiting or controlling a child involved in pornography or prostitution, would be prescribed under Part 2 of that Act for the purposes of notification requirements. Amendment No. 158 is merely a consequential change to the Long Title.

In response to the first amendment in Committee, the noble Lord, Lord Bassam, said that the Government remained very sympathetic to what I proposed but they wanted further opportunity for public consideration and comment on the proposals and to consider what legislative changes should be brought to the House in the light of current consultation. In response to the second amendment, the Minister said that officials intended to review the contents of Schedules 3 and 5 over the summer and that he hoped that any necessary changes might be made by order in the autumn.

During the long, hot summer I noticed one or two press stories with regard to government consultation being concluded on related matters and therefore I thought it important that we should return briefly to these issues tonight. I hope there will be no necessity to bring them back at Third Reading and that we can conclude the matter today. I invite the Minister to say what progress has been made. I beg to move.

Lord Bassam of Brighton: My Lords, I am grateful to the noble Baroness for providing the Government with an opportunity to explain where we have got to on this issue. As the noble Baroness readily acknowledged, we are at one in our intentions and have great sympathy with the proposition she puts before us.

We entirely understand the objective behind Amendment No. 132, which is designed to increase the maximum penalty for an offence under Section 53 of the Regulation of Investigatory Powers Act 2000; that is, failing to comply with a requirement to disclose protected information or the key to it. The increase in the maximum penalty will apply in the circumstances set out in the new subsection (6) of Section 53 of the Regulation of Investigatory Powers Act, including where the offender has a previous conviction for possession of an indecent image of a child.

The use of information technology by terrorists and criminals to facilitate and conceal evidence of their unlawful conduct so as to evade detection or prosecution is increasing. Consequently, the Government have concluded that it is now timely to implement the provisions of Part 3 of the Regulation of Investigatory Powers Act, including Section 53, which are not presently in force. The threat to public safety posed by terrorists’ use of encryption technologies was recognised by the House in Section 15 of the Terrorism Act 2006, which increased the maximum penalty for the Section 53 offence to five years in a national security case.

Schedule 3 does not include the offences under Sections 48 to 50 of the 2003 Act. These are the offences of causing or inciting child prostitution or pornography, controlling a child prostitute or a child involved in pornography and arranging or facilitating child prostitution or pornography. The decision to omit them was taken because we believe that these

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offences, while undoubtedly despicable, were not, strictly speaking, sexual offences unlike, say, rape, but could be motivated by a number of factors such as simple greed. The offences are included, however, in Schedule 5 to the 2003 Act. That inclusion ensures that if offenders demonstrate that they pose a risk of serious sexual harm, courts can make a sexual offences prevention order either when dealing with such offenders or on subsequent application from the police. Being made subject to such an order leads to the offender going on to the sex offenders register, as well as being subject to prohibitions imposed by the order itself.

We recognise that while it may be true that these offences need not necessarily be strictly sexual in nature, their perpetrators demonstrate at the very least a callous disregard for the sexual well-being of children and pose a threat, so they may require the monitoring that being made subject to the register will bring.

Officials in the Home Office are engaged in a review of the content of Schedules 3 and 5 to ensure that the right offences are included and that they are placed in the appropriate schedule. I can assure the House that the suggestions set out in the amendment are receiving not just sympathetic but active consideration as part of that review.

Changes to Schedules 3 and 5 do not require primary legislation but can be made by order. Rather than make piecemeal changes, we should await the results of the full review and look to make all necessary changes through an order which will be laid later in the autumn. I can give that assurance this evening. On that basis, I hope that the noble Baroness recognises that she is pushing at an open door, that we are at one on this and that she can feel able comfortably to withdraw the amendment.

Baroness Anelay of St Johns: My Lords, at this time of night, it just remains for me to thank the noble Lord for putting that on record. I am glad that the door is open; we will keep on pushing things through it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 133 not moved.]

Schedule 12 [Schedule to be inserted into the Protection of Children Act 1978]:

Viscount Bridgeman moved Amendment No. 134:

The noble Viscount said: My Lords, I shall speak also to Amendment No. 136. I hope that we, too, can take advantage of the open door. This follows on from the previous grouping spoken to by my noble friend Lady Anelay. Due to time constraints in Committee, I was unable to move the amendment before the Summer Recess.

As the Joint Committee on Human Rights summarised in its report, the Bill introduces a newer

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and wider procedure for the forfeiture of indecent photographs of children held by the police. The report stated:

These probing amendments would insert new sub-paragraphs into Schedules 12 and 13 to ensure that, where the court was not satisfied that the relevant property was forfeitable, the relevant officer extinguished all the information that he had obtained from the forfeiture.

The aim of the amendment is to question whether the police should or would keep copies of information seized in this context if the court had ordered its return. In some ways, it has a parallel in the debate surrounding data protection and whether the police should keep DNA records of innocent individuals on file, although it is a different medium. I beg to move.

Lord Dholakia: My Lords, the amendment was tabled by the Conservatives in Committee, but it was not moved. We support the amendment. It states that an officer should not keep any information about the content of the property if the court finds that that person does not have forfeitable property in his possession; for example, indecent photographs, or pseudo-photographs, of a child. I presume that this is to protect the child in the images.

Lord Bassam of Brighton: My Lords, I shall go carefully, because I am seeking to persuade noble Lords opposite that their amendment is not effective in the way in which they might envisage and could, to an extent, be self-defeating. I ask them to bear with me.

The provisions in the Bill allow the police to forfeit indecent images of children and the storage equipment that holds them. The amendments would amend our proposed procedures so that, once it is found that the property should be returned to the owner, the police must destroy all information about the property which is in their possession.

Clauses 44 and 45 and Schedules 12 and 13 amend the current law so as to close a small technical loophole in the law. They will allow the police to forfeit indecent images of children and the devices that hold them following any lawful seizure. As we have explained previously, this is a small loophole, because if the person is convicted of an offence in respect of the material, it can be forfeited on conviction under Section 143 of the Powers of the Criminal Courts (Sentencing) Act 2000. These new provisions do not affect that power.

However, there are limited circumstances in which there may be no conviction. In those cases, the Protection of Children Act 1978 allows the courts to forfeit such articles following a seizure under a

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warrant under that Act, but the court has no power to forfeit articles brought before it under other powers of seizure; for example, during a fraud investigation. Technically, in such instances, the articles may have to be returned to the offender.

Our reforms will move the power of forfeiture into the hands of the police, regardless of the powers of seizure used, and will provide an avenue of appeal to the courts for owners or third parties with an interest in the articles. The amendments would require the police to destroy any record of lawfully seized material once the courts have decided that material is non-forfeitable and should be returned to owners.

I hope that I can persuade noble Lords that these amendments are unnecessary. Their effect would be to require the police to destroy records lawfully made which would otherwise be retained in accordance with current law, including the Data Protection Act 1998, and accepted operational police practice and procedure whenever such property is seized and a court orders its return. The amendments would amount to an unreasonable restriction on the extent to which police are allowed, and expected, to exercise discretion as to the need to retain and use all factually accurate information. This is in connection with both the prevention, detection, investigation and prosecution of crime, and when they are called to account in civil proceedings.

9.45 pm

For example, let us say that in their dealings with a known sex offender, the police believe he no longer has access to a computer in his home and is not viewing indecent images of children or adult pornography. This suggests, in this case, that the individual is of a lower risk and the police, through the Multi-agency Public Protection Arrangements, adapt their management plan accordingly. However, evidence comes to light that the offender’s credit card has been used to purchase indecent images of children over the internet and the police arrest the offender and find a laptop computer in his home. The images appear, to the police and Crown Prosecution Service, to be of children aged 16 or 17 but the court finds that they are of an adult aged 18 or over. Therefore, the laptop and images would have to be duly returned to the offender and, under this amendment, the police would have to remove from their records any suggestion that the individual, who is a convicted sex offender, has access to a computer and is viewing pornography. This is despite the fact that such intelligence might be used by the police to adapt their management plans, and might even be the evidence they need to apply to a court for a sexual offences prevention order to impose prohibitions on the offender in order to protect the public from serious sexual harm.

The provisions in the Bill provide the police with a simple but secure mechanism to ensure that seized indecent images of children and the devices that hold them can be forfeited once investigators no longer need to retain them. In addition to this, we have provided a simple and fair mechanism to allow owners and interested third parties to appeal against forfeiture. So there is a safeguard there already.

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I hope that, having heard that, the noble Viscount and the noble Lord, Lord Dholakia, will think again about their amendments and will not feel the necessity to table them again at Third Reading.

Viscount Bridgeman: My Lords, I am most grateful to the Minister for the trouble that he has taken to explain this matter in some detail. I shall read carefully what he has to say and in the mean time I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Linklater of Butterstone moved Amendment No. 135:

“Penal custody for children

The noble Baroness said: My Lords, I propose the insertion of a new clause whose purpose is to end penal custody for all children under the age of 18. I fear that this door may not be as wide open as it has been to some other proposals.

We believe that those children for whom secure accommodation or custody is necessary and appropriate should be accommodated and managed in local authority secure children’s homes or their nearest equivalent, because this is about children, not adults who are young. The arguments that we deploy for incarcerating people aged 18 and over are essentially and crucially different for those under 18, the legal definition of a child. This means that the child’s welfare is the central issue and general childcare standards as applied by all those agencies which deal with children are paramount. Prison is simply not the appropriate professional or effective response to children who offend, where security and a quite different ethos obtains.

The many experts on this matter include the noble Lord, Lord Ramsbotham, who has a wealth of experience and is on record as saying something along these lines if not in these very words. Experienced experts and a range of childcare agencies sign up to the Children’s Rights Alliance for England. We believe that an age and needs-led approach to a child’s offending, compliant with the ECHR and the Convention on the Rights of the Child, which also addresses the causes of crime and how to stop very young people offending or reoffending, must inform provision and practice. This is tough on all concerned. Penal custody—prison—is the place for dangerous, persistently offending adults, not children; for children it is unproductive and in many cases causes further damage. Of course all offending is unacceptable, and persistent offending is particularly serious, so the system must teach all offenders to stop and how to change. It is how we deal with children, however, that must be different.

It is well known that, compared with those who do not offend, this group of children has had a disproportionate experience of being in care, of lack of education through exclusion, of special educational

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needs, of significant mental health and personality problems, and of serious issues with drugs and alcohol. The challenge is huge, and the specialist provision necessary to meet it is very great.

The penal custody supplied by YOIs or STCs cannot provide this degree of specialist provision. At great expense it does little to make society safer, since somewhere in the region of 70 per cent re-offend within two years of release. Anyone who has worked with such children, as I have, and all experts in social care, healthcare or education know that. The Government know it; the arguments have been rehearsed in this place many times. The astonishing thing is, though, that the response by politicians, Government and sentencers is to commit roughly 3,000 children to penal custody at any one time. Indeed, during 2004 8,110 young people were received into custody, of whom 4,500 were 15 and under. That last fact takes some believing; that in this country we imprisoned 4,500 damaged and difficult children of 15 and under, some as young as 12, in that year.

Over the years I have been in many YOIs, which hold the majority of these children. I know the dedication of the work of many of the people in them, and the successes they have had with groups and individuals in their charge. The work of the Youth Justice Board in facilitating and supporting improvements has also been impressive. At the same time, though, the YJB has assessed 56 per cent of 15 year-olds and 35 per cent of 17 year-olds in YOIs as “vulnerable”. YOIs are part of the prison service and are essentially geared to adults. By comparison with local authority secure children’s homes, which I shall refer to as LASCHs from now on—a rather terrible acronym—the ratio of officers to prisoners in a YOI is one to 10, while in a LASCH it is two staff to three children. The scale of the institutions is up to 60 on a wing, compared with units of around eight in a LASCH. The provision is not child-centred. Training of nine weeks is not geared to the particular specialist requirements of children. Segregation is used, and the regulations on the use of force involving pain during restraint are not amended for children in YOIs. The latest chief inspector’s report shows that one-third of children say they feel unsafe, a quarter say they have been assaulted or insulted by staff, and 2 per cent say they have been sexually assaulted. Since 1990, 29 children have actually died.

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