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Criminal Justice and Immigration Bill

My Lords, I support the amendment moved by my noble friend Lady Miller. It was supported very robustly and eloquently by the noble Lord, Lord McIntosh of Haringey. There has been concern generally about the existence of these clauses in the Bill. As the noble Earl, Lord Onslow, indicated, there is the problem of definition. It is very unsatisfactory indeed if people are potentially going to be made criminals because they possess certain material. If we are having difficulty over the definition, Heaven help those who might suddenly find themselves at the wrong end of the criminal law because of a lack of understanding as to what the definition is. It is with these concerns that we have tabled the amendments in the group. If there is going to be a crime established we want to try to get some definition into it. The amendment would make a requirement that the act being recorded, and which is then the subject of the pornographic image, should be one in which one or more of the persons engaged in that act are committing a sexual offence. ““Sexual offence”” is defined for the purposes of this clause to include offences which could be committed forth of the United Kingdom. One of the concerns mentioned in Committee was that many of these images are imported from outside the United Kingdom. Clearly, if no sexual offence is being committed, it seems very odd indeed that there should be an offence for having an image of something which was not an offence. I can see nothing within the Bill that would stop a person having a picture of himself or herself engaged in that particular activity, which they would know was entirely consensual. Having engaged in it consensually would not be a crime, but to have a photograph of it in one’s possession would be a crime. That does not seem to me to make sense. Amendment No. 86L, spoken to by my noble friend Lady Miller, which indicates that the definition should be imported from the Obscene Publications Act, again has considerable good sense attached to it. After all, in Committee, the Minister tried to indicate that it was important that the parallel was made with the Obscene Publications Act. Things were said about the difficulties and the challenges we face today because of the internet and because of electronic communication of images, difficulties which were not faced back in 1959. Notwithstanding that, I cannot see any reason for departing from the definition which, as the noble Lord, Lord McIntosh, said, has stood the test of time of some 50 years, and why we would suddenly have a different set of definitions simply because something might be downloaded from the internet. Amendment No. 86PA seeks to bring in a defence. The defences in the Bill are very limited indeed. The amendment seeks to create an additional defence whereby a person believes that those involved in the material possessed actually consented to the participation. There may be difficulties in proving that in cases of mass produced pornographic images, but it certainly could be a very useful defence in cases of images of consenting couples or groups which have been made for their own use. It is not open-ended. There is a requirement that the belief must be reasonable. In all these circumstances, the restrictions and the greater definition which the amendments in this group bring forward help to improve the measure. As has been indicated, there is considerable underlying unease about the purpose of the clauses as a whole. I certainly commend the amendments as improving clauses which at the moment do not command sufficient confidence to enable them to become part of our criminal law.