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Criminal Justice and Immigration Bill

My Lords, I think that the answer is that some would be covered by offences in this country and some would not, but they were all disgusting. I suspect that we will, in the end, have to come to a value judgment on this matter. Frankly, I want to discuss why the Government would have difficulty with the amendments, and the House will then no doubt want to take a decision on that view—either today or at another stage. Clearly, the effect of the amendments that the noble Baroness, Lady Miller, has put forward is to add an additional element to the offence; namely, that the image concerned depicts an actual sexual offence. In order to come within the terms of the offence, an image would have to depict a specified extreme act in an explicit and realistic way. As a consequence, only graphic and convincing scenes would be caught. To go further than that and to require that the image is a record of a sexual offence being carried out would make the clauses more or less inoperable for two reasons. First, the issue with most extreme pornography is not that a sexual or any other offence may or may not have been committed. As I said, much of the material that I saw, which has been found by the Metropolitan Police, might be prosecuted under the Obscene Publications Act, but would not satisfy a test that a sexual offence had been committed. The proposed amendment would render the offence inapplicable in respect of such material. I do not run away from this because the point was made by the noble Lord, Lord Thomas of Gresford, in his intervention. We are targeting that material not on account of offences which may or may not have been committed in the production of the material, but because the material itself, which depicts extreme violence and often appears to be non-consensual, is to be deplored. Secondly, the other problem is that if there were a suspicion that a sexual offence had taken place, that would be pursued by applying the existing criminal law here. However, it is far more likely to have been produced in other countries and part of the problem that we face is mainly because of the internet. Often it applies to a different jurisdiction. To make a prosecution for possession of the image contingent on the prosecution first, determining from that image whether or not a sexual offence had taken place, and secondly, obtaining the necessary evidence and witnesses to prove the elements of that offence beyond a reasonable doubt, would be to make such a prosecution all but impossible. As I said, most of the extreme pornography is produced outside our own jurisdiction. The noble Baroness has tabled amendments in the second group that would remove the offence altogether. The advice that I have received is that the amendments in this group would create almost the same impact. Amendment No. 86PA would create a new defence applicable where the defendant reasonably believed that no one portrayed in the image concerned was coerced. I am aware that the noble Lord has concerns about individuals who keep a record of themselves freely and willingly participating in bondage, domination, submission and sado-masochistic practices in which no unlawful harm occurs. I recognise that it would be anomalous for a person to be committing an offence by possessing an image of an act which he undertook perfectly lawfully. We intend to introduce at Third Reading a defence which addresses precisely that situation. Noble Lords will have to apply a value judgment to this issue. I take them back to the elements of the offence. This is not intended to catch the kind of art to which noble Lords have referred. The three elements of the test ensure that it is only this extremely nasty pornography that in no circumstances could be counted as art, which will be covered. As a society we have a duty to protect people. It is appalling that this material is available and we have to do something about it.