Criminal Justice and Immigration Bill

moved Amendment No. 134ZB: 134ZB: After Clause 118, insert the following new Clause— ““Failure to comply with notice to disclose (1) In the Regulation of Investigatory Powers Act 2000 (c. 23) in section 53(5A) after paragraph (a) insert— ““(aa) where subsection 5C applies, five years; and””. (2) In the Regulation of Investigatory Powers Act 2000 (c. 23) after section 53(5B) insert— ““(5C) This section applies where— (a) the offender has been previously convicted of an offence relating to an indecent photograph of a child, or (b) where an indecent photograph of a child has been found in his possession, or (c) where the court is satisfied that it is more likely than not that the protected information may contain an indecent photograph of a child. (5D) In subsection 5C, ““indecent photograph of a child”” has the same definition as in sections 1 and 7 of the Protection of Children Act 1978 (c. 37) and includes a reference to a pseudo-photograph of a child.”” (3) In Schedule 3 of the Sexual Offences Act 2003 (c. 42) after paragraph 35 insert— ““36 An offence under section 53 of the Regulation of Investigatory Powers Act 2000 (c. 23) where subsection 5C applies.”””” The noble Lord said: The amendment is designed to deal with a failure to comply with the notice to disclose and would introduce a new clause after Clause 118. It would raise the penalty for failing to provide the key to the police when requested. The drafting follows the logic used in terrorism offences. I have selected ““five years”” in proposed subsection (1), because it is the same period as applies in terrorism offences. It would also seem to be in line with the guideline produced by the Sentencing Guidelines Council. The raised penalty would apply in one of three circumstances: first, where the offender had been previously convicted of an offence under Section 1 of the Protection of Children Act 1978, Section 160 of the Criminal Justice Act 1988 or Sections 48 to 50 of the Sexual Offences Act 2003. It would apply, secondly, where the offender’s computer or other media being examined at the same time contained an indecent image of a child and, thirdly, where the court was satisfied on the civil standard that the protected data were likely to include an indecent photograph of a child. This would cover situations where the police could prove that the offender was likely to be involved in child pornography; for example, through search engine terms, e-mails and intelligence. I understand that a Court of Appeal decision, R v Porter in 2006, deals with the meaning of ““possession””. It states that where an image has been deleted and can be recovered only forensically, and not by the user, it cannot be said that a person is in possession of the image. To an extent, this is common sense, although it caused some problems for the Crown Prosecution Service. The solution is not to charge with possession, but to charge with making an indecent photograph of a child, as now happens. I have kept ““possession”” in proposed new subsection (5C)(b) of Section 53 of the Regulation of Investigatory Powers Act 2000 because it makes life easier. However, if the circumstances of Porter were repeated, the higher penalty would still apply since a court would conclude that, since the person concerned had accessed indecent images of children already, it would be likely that protected data would also include indecent images. The third part of the amendment would alter Schedule 3 to the Sexual Offences Act 2003. It would mean that if someone were convicted for not disclosing the key, they would be subject to the notification requirements. I beg to move.