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99Clause 48, page 24, line 31, leave out from beginning to end of line 16 on page 25 and insert— "(1) In proceedings for an offence under section 1(1)(a) of making an indecent photograph or pseudo-photograph of a child, the defendant is not guilty of the offence if he proves that—


(a) it was necessary for him to make the photograph or pseudo-photograph for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings, in any part of the world,
(b) at the time of the offence charged he was a member of the Security Service, and it was necessary for him to make the photograph or pseudo-photograph for the exercise of any of the functions of the Service, or
(c) at the time of the offence charged he was a member of GCHQ, and it was necessary for him to make the photograph or pseudo-photograph for the exercise of any of the functions of GCHQ. (2) In this section "GCHQ" has the same meaning as in the Intelligence Services Act 1994.""


100Page 25, leave out lines 20 to 46 and insert— "(1) In proceedings for an offence under Article 3(1)(a) of making an indecent photograph or pseudo-photograph of a child, the defendant is not guilty of the offence if he proves that—


(a) it was necessary for him to make the photograph or pseudo-photograph for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings, in any part of the world,
(b) at the time of the offence charged he was a member of the Security Service, and it was necessary for him to make the photograph or pseudo-photograph for the exercise of any of the functions of the Service, or
(c) at the time of the offence charged he was a member of GCHQ, and it was necessary for him to make the photograph or pseudo-photograph for the exercise of any of the functions of GCHQ. (2) In this Article "GCHQ" has the same meaning as in the Intelligence Services Act 1994.""


101Clause 49, page 26, line 17, leave out from "where" to "is" in line 24, and insert "subsection (5A) applies,"
102Page 26, line 26, after "liable" insert "—
(a) where subsection (5A) applies, on conviction on indictment, to imprisonment for a term not exceeding 14 years;
(b) in any other case—
(i) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(ii) "
103Page 26, line 33, at end insert— "(5A) This subsection applies where the offence involved—


(a) penetration of B's anus or vagina with a part of A's body or anything else,
(b) penetration of B's mouth with A's penis,
(c) penetration of A's anus or vagina with a part of B's body or by B with anything else, or
(d) penetration of A's mouth with B's penis."
104Clause 53, page 27, line 35, leave out "moving or still"

Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 16 to 104. I spoke to these amendments with Amendments Nos. 2,3 and 9.

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Moved, That the House to agree with the Commons in their Amendments Nos. 16 to 104.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

7.15 p.m.

COMMONS AMENDMENT

105After Clause 56, Insert the following new Clause— "Penalties for keeping a brothel


In paragraph 33 of Schedule 2 to the Sexual Offences Act 1956 (c. 69) (mode of prosecution, punishment etc. for offences under section 33 of that Act)—
(a) for the entries in the second and third columns substitute—
"(i) On indictment Seven years
(ii) SummarilySix months, or the statutory maximum or both";

(b) omit the entry in the fourth column."
105AAfter Clause 56, Insert the following new Clause— "Penalties for keeping a brothel used for prostitution


    (1) The Sexual Offences Act 1956 (c. 69) is amended as follows.


    (2) After section 33 insert—


    "33A Keeping a brothel used for prostitution


    (1) It is an offence for a person to keep, or to manage, or act or assist in the management of, a brothel to which people resort for practices involving prostitution (whether or not also for other practices).


    (2) In this section "prostitution" has the meaning given by section 53(2) of the Sexual Offences Act 2003."


    (3) In Schedule 2 (mode of prosecution, punishment etc.), after paragraph 33 insert (as a paragraph with no entry in the fourth column)—


    "33AKeeping a brothel used for prostitution (section 33A).
    (i) on indictmentSeven years
    (ii) summarily
    Six months, or the statutory maximum, or both.""

Baroness Scotland of Asthal: My Lords, I beg to move that the House do disagree with the Commons in their Amendment No. 105 but propose Amendment No. 105A in lieu thereof.

Amendment No. 105, tabled in the other place, raised the maximum penalty available for the offence of keeping a brothel at Section 33 of the Sexual Offences Act 1956 from three months' imprisonment, or six months for a second or subsequent offence, to seven years' imprisonment.

Currently, where the police need to prosecute those who derive income from the management of several brothels at which prostitution takes place, but who distance themselves from the day-to-day running of

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the brothel, they use the offence at Section 30 of the Sexual Offences Act 1956—that is, living on the earnings of prostitution. However, the sex offences review recommended the repeal of Section 30 because it is not focused solely on exploitative behaviour. Potentially, it also captures the genuine, long-term partner of a woman who is supported by her earnings from prostitution or the daughter of a woman involved in prostitution who is supported through university by her mother's earnings. That is why we are repealing Section 30.

However, the police raised concerns with us that, in some cases, it would be difficult to prove the new offence of controlling prostitution for gain, at Clause 55 of the Bill, where a person was not involved in the day-to-day running of the brothel but none the less derived his income from it. It has always been our position that the law on prostitution fell outside the scope of the sex offences review but that the targeted exploitation of the prostitution of others did not. The review of sexual offences recommended that there should be a further review of the law on prostitution. We are currently scoping a review of prostitution, organised criminality, class A drug abuse and social nuisance associated with it.

Pending the outcome of that scoping exercise, we did not want the repeal of the offence of living on the earnings of prostitution to create a loophole that could be used by those who derive money from exploiting the prostitution of others. After consultation with the police, we therefore decided that the best way to tackle the issue was to raise the penalty for the offence of keeping a brothel, at Section 33 of the 1956 Act, from its present relatively low level of three months' imprisonment for a first offence, or six months for a subsequent offence, to seven years' imprisonment. That brings it into line with the offences at Clauses 54 and 55 relating to the exploitation of prostitution.

That gave rise to Commons Amendment No. 105 and the consequential amendments to the schedules—that is, Commons Amendments Nos. 274 and 291. But it was brought to our attention on Report in another place that the "keeping a brothel" offence is sometimes used to target the proprietors of saunas and clubs where people go to have consensual sex with each other, without money being paid for the sexual encounter. Case law confirms that the term "brothel" does not just apply to places where prostitution takes place.

Our policy intention was limited solely to places where prostitution took place. We are therefore proposing government Amendment No. 105A to replace Commons Amendment No. 105. It inserts new Clause 33A into the Sexual Offences Act 1956, providing for a new offence with a higher penalty of seven years for keeping a brothel where prostitution, as defined by Section 53(2) of this Bill, takes place, whether or not it is also used for other purposes. Where the brothel does not have any prostitution taking place, existing Section 33 of the 1956 Act remains in force and unchanged, and can be used by police in those cases where they decide to take action.

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Amendments Nos. 274A and 291A make the necessary consequential drafting amendments to Commons Amendments Nos. 274 and 291 to take account of the switch from Commons Amendment No. 105 to the new clause introduced by Amendment No. 105A. I invite the House to accept the new clause introduced by Amendment No. 105A.

Moved, That the House do disagree with the Commons in their Amendment No. 105, but propose Amendment No. 105A in lieu thereof.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.


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