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Criminal Justice and Immigration Bill

moved Amendment No. 14: 14: After Clause 64, insert the following new Clause— ““Defence: participation in consensual acts (1) This section applies where— (a) a person (““D””) is charged with an offence under section 62, and (b) the offence relates to an image that portrays an act or acts within paragraphs (a) to (c) (but none within paragraph (d)) of subsection (7) of that section. (2) It is a defence for D to prove— (a) that D directly participated in the act or any of the acts portrayed, and (b) that the act or acts did not involve the infliction of any non-consensual harm on any person, and (c) if the image portrays an act within section 62(7)(c), that what is portrayed as a human corpse was not in fact a corpse. (3) For the purposes of this section harm inflicted on a person is ““non-consensual”” harm if— (a) the harm is of such a nature that the person cannot, in law, consent to it being inflicted on himself or herself; or (b) where the person can, in law, consent to it being so inflicted, the person does not in fact consent to it being so inflicted.”” The noble Lord said: My Lords, during our debate at Report, I said that the Government intended to address the concerns expressed by the noble Lord, Lord Wallace, and others, about individuals who keep a record of themselves freely and willingly participating in bondage, domination, submission and sadomasochistic practices in which no unlawful harm occurs. We recognise that it would be anomalous if participants in perfectly lawful acts were to be at risk of prosecution for possession of images portraying those acts. We have introduced an amendment which creates a new defence of participation in acts in which no unlawful harm occurs. The defence will apply in respect of images which meet the very high threshold for the offence. The defence will not apply in respect of bestiality images or necrophilia images which involve a real corpse. In respect of other material, it will be a defence for a person to prove, on the balance of probabilities, that he or she directly participated in the act or any of the acts portrayed and that the act or acts portrayed did not involve the infliction of any non-consensual harm on any person. The defence that we are proposing does not amend the law in the wider area that was set out in the House of Lords case of R v Brown—a decision that the European Court of Human Rights found not to be an infringement of Convention rights. However, the defence is constructed so that, if the law on that point should change in the future, the defence would not move it. I hope that this defence will give reassurance to those who participate in legal and consensual acts of which they wish to keep a photographic record. I beg to move.