Criminal Justice and Immigration Bill

moved Amendment No. 122B: 122B: Clause 113, page 79, line 38, leave out ““appears”” and insert ““is of such a nature that it must reasonably be assumed”” 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 material—the only sort of material that the clauses cover—they refuse to classify material which encourages an interest in sexually abusive activity. That is one of the reasons why the police have to continue to fight the supply of obscene and illegal videos and DVDs. 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 producer’s 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, "““grossly offensive, disgusting or otherwise of an obscene character””." 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 Act—essentially because it is constructed around the concept of publication, not possession, and covers a much broader range of material—we have sought to create symmetry between the two. The, "““grossly offensive, disgusting or otherwise of an obscene character””," 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 place—that a person’s 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. In Clause 114, Amendments Nos. 131A and 131B apply the slight change to the definition of pornography introduced in Clause 113 to the context of extracted images in Clause 114. The effect is that whether or not an image is an ““extracted image,”” and thus should not benefit from the exclusion for films classified by the British Board of Film Classification, turns on whether the extract is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal. As with the definition of pornography in Clause 113, this is intended to be an objective question for the magistrate or jury, not a question of the intentions of the person who did the extracting. I hope noble Lords will accept these amendments, which I believe go a long way to address the concerns that have been raised. I beg to move.