Coroners and Justice Bill
Mr. Garnier: The Minister opened by saying that this has been a superb debate, which I think was a fair description. My complaint is that this superb debate is taking place in the wrong place. It should have taken place on the Floor of the House during the course of a Suicide Act amendment Bill Second Reading debate. We have been discussing this clause and these amendments for a little over an hour, subject to the vote downstairs. The way in which the contributors to the debatebe it the hon. Member for Cambridge, the hon. Member for Bolton, South-East, the hon. Member for Bridgend or my hon. Friend the Member for North Wiltshirehave approached it shows that much needs to be said and a great deal of explanation needs to come from the Government. To be required to compress the debate into a debate within Committee is not, although it has been a good experience to take part in, the most sensible way to develop the law. I seem to make that point rather a lot. Although I acceptI have said this before, toothat a bad point is never improved by repetition, sometimes a good point needs to be hammered home. If I can get it into the heads of the Government business managers and those who construct these Bills that this is simply a silly way to conduct the creation of legislation, I will, I hope, have achieved something. I have failed over the past 10 years; perhaps in the last year of this Parliament I will make some progress.
I do not have any concerns, which the Minister may have implied, about using modern language. I have no concern about people wanting to update the way in which offences are defined. So long as it is in English, in sentences and clauses, and the thing makes sense, I do not care. What is important is that one does not use the word modern or modernisation to camouflage intellectual vacuity or a total lack of direction.
I am concerned that, for example, proposed new section 2A(2), which will be inserted into the Suicide Act 1961 and which is covered by my amendment 423, is largely incomprehensible. I fully understand what the Minister says about the intention of it. We all know or at least some of us know about the concept of the attempt to do the impossible, but I can see it nowI can see David Thomas reading out subsection (2), to the chuckles of my colleagues at the Judicial Studies Board, roaring his head off and saying, I wonder who drafted this lot. Then some judge will break his pencil and say, Well, I suppose well just have to interpret it as
I shall finish on this point. I have never known my hon. Friend the Member for North Wiltshire to be concerned about my well-being or feelings before, but I was delighted
Mr. Garnier: That is also worrying. I was delighted that my hon. Friend missed most of my speech, because had he heard all of it, he might have been even ruder about it, but what he missedI think that he accepts thisis that the amendments, as a number of contributors have recognised, were designed to create an opportunity for a debate. I am not sure whether he was in the Committee Room at the time, but as I think I also said, the discussion in relation to amending the Suicide Act, certainly in this Committee under my leadership and that of my hon. Friend the Member for North-West Norfolk, in so far as that is the correct way to describe itcommand is too grand a word for what we are aboutis a free vote issue. I thought that my hon. Friend the Member for North Wiltshire would sleep more easily both in Committee and after Committee, having heard that.
I want the Government to take seriously the point that I make about the process in which we are engaged. I have not actually looked at internet suicide sites. I spent the period between the adjournment at 1 oclock and 4 oclock trying to become engaged in internet banking. I crawled out of my cave and found it all far too difficult, so I am not sure that I shall be going too far in looking up internet suicide sites, but I fully appreciate the points that the hon. Member for Bridgend has made. Indeed, when I visited HM prison Parc in her constituency last year, as she may remember, it was clear that the atmosphere in and around Bridgend had been completely dominated by the huge numbers of young people who had killed themselves, and I fully appreciate the motive with which she comes into the debate. I just wish that she had an option to say more of what she wanted to say on Second Readingshe did take part in Second Reading of the Bill and mentioned the subject. I hope that she will agree that this particular area of the law requires its own Bill, and we do ourselves and our constituents a disservice by crushing the debate into such a limited forum. That is enough from me on the subject, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 46 ordered to stand part of the Bill.
Clauses 47 and 48 ordered to stand part of the Bill.
Schedule 10 agreed to.
Possession of prohibited images of children
Mr. Garnier: I beg to move amendment 427, in clause 49, page 29, line 7, leave out be in possession of and insert
publish by any means whatsoever to another.
The Chairman: With this it will be convenient to discuss the following: amendment 72, in clause 49, page 29, line 11, leave out disgusting.
Amendment 428, in clause 49, page 29, line 13, leave out produced and insert published.
Amendment 429, in clause 49, page 29, line 14, at end add
of the publisher or of a publishee.
Amendment 430, in clause 49, page 29, line 15, leave out (as found in the persons possession) and insert on publication.
Amendment 431, in clause 49, page 29, line 26, at end add
of the publisher or of a publishee.
Amendment 432, in clause 50, page 30, line 19, after extracted, insert and published.
Amendment 433, in clause 50, page 30, line 20, at end add
of the publisher or of a publishee.
Amendment 434, in clause 51, page 31, line 13, leave out it is and insert he has.
Amendment 435, in clause 51, page 31, line 14, leave out for the person and insert where the prosecution fails.
Amendment 436, in clause 51, page 31, line 15, leave out a and insert no.
Amendment 437, in clause 51, page 31, line 15, leave out being in possession of and insert publishing.
Amendment 438, in clause 51, page 31, line 17, leave out first not.
Amendment 439, in clause 51, page 31, line 17, leave out from and to it in line 18 and insert knew, or had cause to suspect.
New clause 35Responsibility for publication of prohibited image
(1) A person has a defence if
(a) he was not the author, editor or publisher of the prohibited image,
(b) he took reasonable care in relation to its publication, and
(c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of the prohibited image.
(2) For this purpose author, editor and publisher have the following meanings, which are further explained in subsection (3)
author means the originator of the image, but does not include a person who did not intend that an image originated by him be published at all;
editor means a person having editorial or equivalent responsibility for the content of the image or the decision to publish it; and
publisher means a commercial publisher, that is, a person whose business is issuing material to the public, or a section of the public, who issues material containing the image in the course of that business.
(3) A person shall not be considered the author, editor or publisher of an image if he is only involved
(a) in printing, producing, distributing or selling printed material containing the image;
(b) in processing, making copies of, distributing, exhibiting or selling a film or sound recording (as defined in Part I of the Copyright, Designs and Patents Act 1988) containing the image;
(c) in processing, making copies of, distributing or selling any electronic medium in or on which the image is recorded, or in operating or providing any equipment, system or service by means of which the statement is retrieved, copied, distributed or made available in electronic form;
(d) as the broadcaster of a live programme containing the image in circumstances in which he has no effective control over the maker of the image;
(e) as the operator of or provider of access to a communications system by means of which the image is transmitted, or made available, by a person over whom he has no effective control.
In a case not within paragraphs (a) to (e) the court may have regard to those provisions by way of analogy in deciding whether a person is to be considered the author, editor or publisher of a statement.
(4) Employees or agents of an author, editor or publisher are in the same positions as their employer or principal to the extent that they are responsible for the content of the image or the decision to publish it.
(5) In determining for the purposes of this section whether a person took reasonable care, or had reason to believe that what he did caused or contributed to the publication of a prohibited image, regard shall be had to
(a) the extent of his responsibility for the content of the image or the decision to publish it,
(b) the nature or circumstances of the publication, and
(c) the previous conduct or character of the author, editor or publisher.
(6) This section does not apply to any publication which arose before the section came into force.
(7) For the avoidance of doubt, the burden of proving or disproving, as the case may be, any of the facts or matters in subsections (1) to (6) above is on the prosecution..
Mr. Garnier: We now move into a completely different realm, dealing with an adjustment to the criminal law concerned with images of children, and whether it should be an offence to possess certain prohibited images. The amendments, standing in my name and those of my hon. Friends the Members for North-West Norfolk and for Rugby and Kenilworth, are broadly in two and a half parts.
There is a simple point regarding amendment 72, which concerns clause 49(2)(c). 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 notunless I can be persuaded otherwisehelp the shape of the clause very much. It is a great word to spit out and it adds emphasis to ones 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 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 suggestionI am entirely open to othersis 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
Mr. Garnier: I am grateful to my hon. Friend, who is always ready with the word that is needed. 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?
Mr. 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 formsby internet, e-mail or physically showing someone a hard copy documentfor 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 Gentlemans point, but the image in his example is not illegal. That is the point.
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