Police and Justice Bill

moved Amendment No. 179: After Clause 42, insert the following new clause- ““ENCRYPTED DATA AND INDECENT PHOTOGRAPHS OF A CHILD (1) The Regulation of Investigatory Powers Act 2000 (c. 23) is amended as follows. (2) In section 53 (failure to comply with a notice)- (a) after paragraph (a) of subsection (5A) there is inserted- (aa) in a case to which subsection (6) applies, seven years;””; (b) after subsection (5B) there is inserted- ““(6) This subsection applies where- (a) a person has been previously convicted of an offence contrary to section 1 of the Protection of Children Act 1978 or section 160 of the Criminal Justice Act 1988; (b) the apparatus or data storage device containingthe protected information contains an indecent photograph or pseudo-photograph of a child; (c) the apparatus or data storage device containing the protected information has come into the possession of any person together with other apparatus or a data storage device which contains an indecent photograph or pseudo-photograph of a child; or (d) the court is satisfied that the protected information is likely to contain an indecent photograph or pseudo-photograph of a child. (7) This subsection will not apply where the person to whom the notice is given can show that the protected information does not contain an indecent photograph or pseudo-photograph of a child. (8) ““Indecent photograph or pseudo-photograph of a child”” shall have the same meaning as in the Protection of Children Act 1978.”” (3) After paragraph 36 of Schedule 3 to the Sexual Offences Act 2003 (c. 42) there is inserted- ““36A An offence under section 53 of the Regulation of Investigatory Powers Act 2000 if subsection (6) of that section applies.”””” The noble Baroness said: I shall speak also to Amendments Nos. 180 and 196, which also stand in my name. The two new clauses would strengthen the law dealing with sex offenders, especially those who offend against children. The issues covered by the amendments were also debated during the passageof the Sexual Offences Act 2003. At that time, the Government asked that they should have the opportunity to consider the proposals further. We are pleased that some progress has been made, but it has not been enough. It is in the vein of probing how much further we may be able to go and when that the amendments have been tabled. In another place, the Government accepted another amendment that inserts a new clause giving the police extra powers to enter and examine the relevant offenders’ home address. The new clause, although rejected by the Government for this Bill, was, with the agreement of the whole of thisHouse, inserted in Committee on the ViolentCrime Reduction Bill in May. Unfortunately, the Government did not give such a positive and speedy response to the amendments before us today and I hope that we can now make more progress with them. Amendment No. 196 simply amends the Long Title so that the matter of child pornography would come within the scope of the Bill. As, later, we shall come to government amendments that would amend the Long Title, I hope that amending the Long Title is no longer an anathema to the Government. Amendment No. 179 deals with encrypted data. It is well known that paedophiles collect pornographic images of children that most certainly constitute child abuse. Some of the images are real; some are digitally manufactured. One must at all times remember that every photograph of a real event is a record of a real act of abusing a child. Many of the images are in the form of videos or DVDs or on computers. Increasingly, they are kept on remote storage. Some computers that the police collect have no hard drives at all. They are driven or initiated by a disk and the information is stored remotely. Increasingly, the information is hidden by encryption. We used to have simple encryption, but we have now moved to 128 bit and 256 bit encryption. I understand that the software is freely available on the internet and is relatively easy to use. Essentially, it is unbreakable. I am advised that matters are likely to become worse from the point of view of breaking security systems when Vista, the replacement for the Windows operating system, is due out during the course of next year. Once that system is up and running, the security is such that when the computer is turned off, it automatically encrypts all the information on it so that when the police collect the computer and turn it on, they cannot break through the encryption. Some information can be destroyed, preventing access by the police. Clearly, the police need access. They need to seek evidence against individuals and, because offenders sometimes work in groups, they need to find evidence against the wider group as well. It is vital for the police to be able to identify the children involved. That is crucial not only in detecting the abusers but making it possible to offer some hope that the children may be rehabilitated and suffer as little long-term damage as possible. The new clause deals with encrypted data found on computers and storage in cases where the police believe that the encrypted data contains abusive images of children. It does not create any new offence or scheme, but amends the sentencing regime under Section 53 of the Regulation of Investigatory Powers Act 2000. Part 3 requires a person to comply with a notice issued by the police to hand over the encryption key for protected data. The penalty for a breach is two years. That seems low, given that the alternative penalty, if the information were turned over, would often be five years or more. Frequently, offenders also have to go on to the sex offenders list. Accordingly, it is unlikely that a defender who has indecent and abusive photographs of children on his or her computer would comply with the notice. We need to step up the penalty to achieve that compliance, so I suggest that such offenders should be liable for up to 10 years’ imprisonment, which is the penalty for contravening Section 1 of the Protection of Children Act 1978. I have no firm view on that; the amendment was tabled to probe the Government’s intentions. The proposed new clause would simply raise the sentence if a court was satisfied that it was more than likely—we return to ““likely””, to which the noble Earl, Lord Erroll, referred—that most of the encrypted data consisted of indecent photographs of children. We suggest the use of the civil burden of proof because the offence would be not the possession of photographs of children, which would be punished separately, but the failure to hand over the encryption key. The higher sentence would apply only when one of two thresholds was passed: the computer had non-encrypted indecent photos of a child or children on it; or the person had previously been convicted of an offence contrary to Section 1 of the Protection of Children Act 1978 or Section 160 of the Criminal Justice Act 1988. Amendment No. 180 would insert a new clause relating to offences requiring notification. Sections 48 to 50 of the Sexual Offences Act 2003, which make provision for the offences of recruiting or controlling a child involved in pornography or prostitution, are not prescribed for the purposes of notification requirements under Part 2 of that Act. I confess that my noble friends and I, and my Front-Bench colleagues in another place, quite simply missed that point during the passage of the Act. Those sections are not being used by the police and prosecutors because they do not have the notification that applies to most of, if not all, the other provisions relating to the abuse of children. I hope the Minister will agree that there is no valid reason why people convicted of such an offence should not be required to notify the police of their details, because they are directly involved in the abuse and exploitation of children and need monitoring and risk assessment. Time was somewhat limited when these matters were debated on Report in another place, but the Government made some encouraging noises, which were welcome, about consulting on them. I would be grateful if the Minister would say what the Government’s current thinking is on the proposals that I have outlined, whether any consultation has commenced on either or both of the proposals, what the time scale is, who is being consulted, and whether they see any particular difficulty with any part of the proposed new clauses, because we would certainly be happy to work with the Government to improve the drafting of them until they become acceptable, I hope, in the near future. I beg to move.