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Let me move on to explain the enforcement process for a fine so that I can demonstrate the varied opportunities which offenders have to make contact with the court. The first sanction usually applied on default is either a deductions from benefit order for those offenders who are on benefits, or, in the case of employed offenders, consideration will be given to an attachment to earnings order. The court will only be able to make these orders if it holds the relevant information about the offender. If either order fails or cannot be used, the fines officer will issue yet another notice, another further steps notice, seeking payment. This notice asks the offender to make contact with the court and warns that failure to do so will lead to further enforcement action, including registration of the fine, clamping of the offenders vehicle orand here we come to the distress warrantto seize the offenders goods. If the offender again fails to respond to the notice, the fines officer will order the appropriate sanction. At this point the offender would have been contacted by the court on at least three occasions, if not more, and this does not include in practice the numerous text messages and telephone reminders that many courts now provide.
Let us suppose that if the court does issue a distress warrant after all these steps have been taken,
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I hope that the Committee agrees that this is entirely right. Not all those listed in the new clause would be automatically considered to be vulnerable because it will depend on the circumstances; they may not necessarily be so. Others may be vulnerable for reasons not listed in the proposed new clause. Here I come back to the words of my noble friend Lord Clinton-Davis by saying that this demonstrates to us the dangers of setting out such a list in the Bill.
Lord Clinton-Davis: The exception referred to in the amendment, but not limited to, is, by and large, less persuasive than the ones that have been mentioned specifically. Does my noble friend agree?
These are the terms, conditions and specifications in the contracts between Her Majestys Courts Service and the private enforcement companies which execute distress warrants on behalf of the department. In other words, the contractors are obliged to comply with these requirements.
If the bailiff considers the person to be vulnerable, or if the bailiff does not think so but the offender considers himself or herself to be vulnerable, what can be done? The short answer is that the matter needs to be brought back to the court so that its attention can be grasped and, if the court considers it appropriate, the distress warrant can be withdrawn. Under the powers contained in Section 142 of the Magistrates Courts Act, subsection (1) provides that,
In the other place, the honourable Member for Enfield Southgate, who sits on the Opposition Benches and is a practising solicitor in criminal lawthe noble Lord, Lord Campbell of Alloway, and I had the pleasure of serving with him on a Select Committee a year or so agospoke of his experiences as a youth court solicitor. He said:
I know that in such situations there are ways to get the warrant withdrawn and to ensure that true account is taken of the young persons means. That often means that the fine remitted to a level that can be paid..[Official Report, Commons, Criminal Justice and Immigration Bill Committee, 23/11/07; col. 491.]
The criminal courts have to pass sentence on those who are guilty. The sentences include fines, which must be adequately enforced otherwise the public may lose confidence in our system. Of course, the enforcement of fines must be done with regard to those who may be vulnerable, and such people must have adequate opportunities to alert the court to their circumstances and the court to take account of them. We are satisfied that such opportunities exist and that procedures are in place to deal with those who are vulnerable.
I do not apologise to the Committee for having gone on at some length. The noble Lord, Lord Thomas, has raised an important point with the amendment. I hope I have put the Governments case that this new clause is not necessary because what it seeks can and does happen.
Lord Thomas of Gresford: I am most grateful to the Minister for his lengthy exposition of the Governments position. I am sure the noble Lord, Lord Lucas, will read it with considerable interest and decide how far he wishes to pursue this matter. Listening to the noble Lord, I have the feeling that he has never had the experience of a bailiff knocking on his door. I recall my noble friendor kinswoman or other half, as the noble Lord, Lord Acton, wishesLady Walmsley contested a congestion charge. She went through the procedure of making an application to the adjudicator. While she did that, there was a knock on the door. It was the bailiffsone of the contracted companies to which the Minister referredwho could not be persuaded to go away for a considerable of time. Following the adjudicators decision, she then applied to the divisional court and obtained leave to appeal. Following that, the bailiffs turned up again. They said they could not do anything; they had the warrant in their hands, which had come from the Northampton County Court, and what was she going to do about it. Again they were persuaded to go away and the matter was adjourned until the noble Baroness appeared in person in the divisional court and won her appeal.
I have put that personal experience before the Minister because he has come out with a great deal of detail about what they are supposed to do, but what in fact happened with these contracted companies is a world apart from that. I could go on at some length on this matter. I am not suggesting that my noble friend, kinswoman or other half is a vulnerable person, but a vulnerable person in that positionchildren under the age of 18 years, persons with a disability, the seriously ill, the recently bereaved
Lord Campbell of Alloway: I am in a bit of a muddle about how this operates in practice. Presumably the magistrates have to know before the chap goes to serve the warrant whether it ought to be withdrawn or suspended on the basis of the person being vulnerable, so that somehow or other one has to go to subsection (4) before one comes to subsection (1) and the court has to decide. The court is the only person who can decide whether the person is vulnerable. Then we come to the definition clause referring to vulnerability. I am distressed to see that it includes the elderly, which would include most of your Lordships, with the qualification that they could not be reasonably expected to act on their own behalfwhich I would not say applied to many of your Lordships.
Then there is another problem: pregnant mothers. This is all very difficult; you have somehow to discover at what time the mother was pregnant and whether that affects her ability to act on her own behalf. And why should unemployed persons be unable to act on their own behalf just because they are unemployed? The whole set-up, involving the person concerned having to be brought back to court, is very difficult. As I understand the Minister, that is what would happen in any event. The court decides, under extant procedure, on the basis of any reason; not just these reasonsthere is no exclusion clause. What is the necessity to codify this situation, which is really a matter of common sense from the magistrates on the facts of each case?
Lord Thomas of Gresford: I am most grateful to the noble Lord for his intervention. I would point out that the premise for the new clause is that the magistrates court is proceeded in the absence of the accused, so it does not know who it is dealing with. The point of contact comes when the very large person from the contracted company, to whom the Minister referred, is knocking on the door. The point of the suggested provision is that that person should have the discretion, looking at the individual who comes to the door and against whom the warrant is issued, to decide, Is this a person who is vulnerable?in the sense that they cannot be reasonably expected to act on his or her own behalf. If they come to that conclusion, we suggest that, at that point, they should be able to refer the matter back to the court and say, Well, youve never seen this person. They werent before you when you imposed that fine. Now, Ive actually met the person in question and I think they are vulnerable and therefore you should rethink your position. That is what the provision is all about: it is a safeguard which we suggest should be in the Bill.
Lord Bach: The noble Lord is correct. We are talking about someone who has never appeared before the court and has not responded in any way to the various methodsthrough which I am afraid I have gone at some lengthto try to contact them. There may be bad reasons for their not having got in touch with the court; there may be valid reasons. Our answer to the proposal that the provision be put in law, which the amendment would do, is that the guidance to which I referred states that the bailiff or the contractorthe noble Lord, Lord Thomas, described him as a very large person; I do not think that that is a requirement for the job
it then lists a whole series of possibilities, including being in hospital or a nursing home, or being heavily pregnant; there are others. They are the terms and conditions and specifications in the existing contracts. They should not be broken and the contractor must take some notice of the person who answers the door. If the person falls into one of the listed categories, the contractor is obliged to go back to the court. That is better than putting it in legislation, which is not necessary because it happens now.
The Lord Bishop of Winchester: There seemed to be a level of unreality in what the Minister saidthe noble Lord, Lord Thomas of Gresford, was almost too polite to make the point. The Minister in his description of the gentlemen and ladies of the contracted organisations was speaking as if they were ideally placed to make delicate decisions about the needs of the person whom they faced on the doorstep. My experience of working with people who have suffered the attentions of bailiffsI admit that it is smallis that that is not the kind of people they are, regardless of whether nice organisations exist to limit their activity. The amendment has been proposed in part because, notwithstanding all the professional arrangements, the reputation of bailiffs is very poor. Their wretched reputation for rough treatment of all kinds of people with whom they have to do is only too well known.
Lord Thomas of Gresford: I am grateful to the right reverend Prelate for that intervention, because it made the point that I was seeking to make. If the contractors man, large or small, who appears at the door does not follow the guidelines, there is a breach of contract, but those are the contractual arrangements between the contractors and the court. It is of no help to the person who is being oppressed by this large or small individual to know that the contract may at some subsequent date be withheld from that contractors organisation. The bailiff should be trained to know that they have a statutory duty under this Bill to look at the person with whom they are concerned and to determine whether they could be described as vulnerable, and therefore that the matter should be referred back to the court for its determination. The duty would introduce a feeling of humanity in that individual, whose profession, as the right reverend Prelate correctly said, does not enjoy the highest reputation among the people of this country who are subjected to distress
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The noble Lord said: Before I introduce the amendments which the Government seek to introduce to the clauses on extreme pornography, I shall explain in a little more detail why we seek to legislate in such a sensitive area. The issue of pornography is one that raises concerns on many levels. The clauses in this Bill are not about the debate on the rights and wrongs of pornography as a whole but have arisen as a result of concerns about the wider availability of extreme or violent pornography, particularly with the growth of the internet, although the same material is also found in large quantities by law enforcement in other forms such as on DVD. The clauses in the Bill do not make any distinction on how such material is possessed.
I stress that we are not trying to change the position on what types of material we should accept as permissible in our society. That is set by the Obscene Publications Act, and provisions on indecent photographs of children. But we need to ensure that the existing standards are effective in the circumstances of the society in which we live. The material that we seek to make it illegal to possess is material which we believe, after consultation with the police and the Crown Prosecution Service, would normally be subject to prosecution under the Obscene Publications Act were it to be published or distributed. However, it is simply a fact that the controls in that Act, which seek to tackle the supply of such material, are more easily evaded by the use of modern technology, which also makes the material easier to produce.
Many noble Lords will be aware that some violent pornographic material has been linked to particularly horrific crimes. While I am sure that there will continue to be much debate on how direct or causal the links are between violent pornographic material and crime, a recent rapid evidence assessment study, published jointly by the Ministry of Justice and the Department of Health, indicates that such material may have harmful effects on some people, in particular those with a history of sexual and other aggression. It is also worth bearing in mind that there are other experts in the field who share our concerns about this material.
I suspect that many noble Lords will have strong views on classification decisions made by the British Board of Film Classification, but it is worth while noting that in its own guidelines for R18 classifications, which is reserved for sexually explicit materialthe only sort of material that the clauses coverthey refuse to classify material which encourages an interest in sexually abusive activity. That is one of the reasons
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In view of the difficulties in tackling the supply of extreme material, we therefore seek to tackle the demand side for some of most extreme forms of this material by making its possession illegal. We are focusing only on a subset of such material because we recognise the fact that there are particular human rights concerns with a possession offence. The clauses themselves contain more detailed descriptions than the Obscene Publications Act, because we recognise that the new offence can impact on individuals in their private life, rather than on persons typically producing this material on a commercial basis. This will ensure people are aware of what material is illegal to possess before they go about seeking to acquire it.
In light of this, I wish to introduce amendments to Clause 113, Amendments Nos. 122B, 123A, 123B, 125A and 125B, and to Clause 114, Amendments Nos. 131A and 132A, in respect of the definition of the definition of extreme pornographic material. They have been drawn up in the light of the concerns raised in Committee in another place and are intended to fulfil the undertaking which was given by my honourable friend Maria Eagle during that debate to consider whether the threshold of the offence and the drafting of the definition of an extreme image should be further clarified.
As I said, we recognise that this offence has implications for personal freedoms. It is not, and never has been, our intention to capture material that would not already be subject to prosecution under the Obscene Publications Act 1959 if it were published in this country. We wish to put beyond doubt in bringing forward these amendments that the type of imagery found in popular, mainstream films, which were discussed during earlier stages of the Bill, would not be covered by this offence.
Concerns were voiced in another place that the definition of pornography relied on the viewer having a clear understanding of the producers intent with regard to the creation of the material in question. This, it was argued, would have created considerable difficulties for a viewer or a jury in those circumstances where it was not evident that material had been made for pornographic purposes. Thus, in Amendment No. 122B to Clause 113, we have sought to clarify that the question of whether or not material is pornographic is a matter on which a jury can simply take a view by reference to the nature of the material before them. It is not a question of the intentions of those who produced it.
Amendments Nos. 123B and 125A are consequential on Amendment No. 122B. Amendment No. 123A is intended to clarify that the relevant context when judging whether an image is pornographic is the context in which the defendant holds the image. Amendment No. 125B introduces the most significant changes. We have introduced an additional element to the offence which relates to the obscene character of the material in question. An extreme image must now not only be included in the list of extreme acts set out in Clause 113(6) but must be,
That change is intended to clarify the alignment between this offence and the Obscene Publications Act. It is not our intention to criminalise material that it would be legal to publish. While we have not sought to import the language of or build directly on the Obscene Publications Actessentially because it is constructed around the concept of publication, not possession, and covers a much broader range of materialwe have sought to create symmetry between the two.
test is drawn from the ordinary dictionary definition of obscene. When taken in conjunction with the existing elements of the offence, it will ensure that this offence catches only material that would be caught by the Obscene Publications Act were it to be published in this country.
In addition, we have proposed changes that we believe sharpen the definition of what was the second element of the offence; namely, the listed extreme acts. We have removed all occurrences of the words appears to, which was a particular concern raised in another place, and indeed by the noble Baroness, Lady Miller, and the noble Lord, Lord Wallace.
We have provided that the acts depicted must be explicit and realistic. The consequence is that only graphic and convincing scenes will be caught. The offence is thus not limited to photographs and film of real criminal offences which, as my honourable friend explained in another place, would make the offence unworkable and of limited effect.
The noble Baroness, Lady Miller, and the noble Lord, Lord Wallace, have tabled what may appear to be a similar set of amendments and I acknowledge their efforts in this regard. However, because of the way that the amendments have been drafted, we are concerned that they would make it necessary for the prosecution to prove that the events being depicted had actually taken placethat a persons life had actually been taken or that a life-threatening injury had been inflicted; in short, that a very serious crime had taken place. That would place an insurmountable burden on the prosecution, particularly when much material is produced abroad. We have also slightly restructured this part of the offence so that the persons and animals depicted must be such that a reasonable person looking at the image would think they were real. As I have mentioned, in respect of acts the requirement is that they be explicit and realistic rather than actually real. This change flows from our broader restructuring of the offence and does not represent a change in policy.
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