Serious Crime Bill [HL]

Baroness Williams of Trafford Excerpts

Tuesday 15th July 2014 Lords Chamber

[Baroness Williams of Trafford (Con)]

I begin by wishing my noble friend Lady Hamwee a speedy recovery. It seems a little odd not to have her here when she has been omnipresent in our debates on the Bill.

Before I speak to the amendments, it may assist the Committee if I provide some background to Clause 63. The clause creates a new offence of the possession of paedophile manuals—that is, any item that contains advice or guidance about abusing children sexually. The Government have been made aware of a potential gap in the law which allows the possession of written material that contains practical advice on how to commit a sexual offence against a child. Such material is commonly referred to by investigators as “paedophile manuals”.

The material that we are targeting is deeply disturbing and has clearly been designed to facilitate sexual offending against children. Possession of some of that material, where illustrated with indecent images, is likely already to be a criminal offence under the law that deals with such images. However, the possession of purely written material would not fall under the current criminal law.

We are therefore creating a new offence to target possession of that potentially dangerous material. The offence will carry a maximum sentence of three years’ imprisonment. We have also included defences to the possession of that material that mirror those already available to individuals charged with similar possession offences; for example, the possession of indecent photographs of children under the Criminal Justice Act 1988 or extreme pornographic material under the Criminal Justice and Immigration Act 2008. The defences include a legitimate reason for being in possession of material. That will cover those who can demonstrate that their legitimate business means that they have a reason for possessing this material. Such groups may include law enforcement agencies, the Internet Watch Foundation and others. It will also cover those people working for software companies who may come into contact with such material during the course of developing filter systems, for example.

Amendment 40BZF would replace the legitimate reason defence with a narrower one which will offer protection only to those who are preventing or detecting crime. We believe that there is no need to narrow the defence in that way. As I explained, the legitimate reason defence already covers those in detection and law enforcement, but it also provides protection to others with a genuine reason for possession of this material. Our legitimate reason defence mirrors a long-established defence in this sensitive area of the law: one that is well known to the police, prosecutors and the courts and that has worked well. We can therefore find no reason to narrow the protection that that defence will provide. Any defences need to be tailored to the circumstances of a particular offence. The offences in Clauses 41 and 63 are clearly very different. We are satisfied that the narrower defence in Clause 41 is appropriate given the nature of the participation offence.

My noble friend has indicated that Amendments 40BB and 40BC are probing amendments to test aspects of the drafting of Schedule 3. That schedule ensures that the provisions which make illegal the possession of paedophile manuals are consistent with the UK’s obligations under the e-commerce directive, adopted in 2000. The provisions in Schedule 3 are nothing new and mirror those already in place for other similar offences—for example, the possession of prohibited images of children offence in Section 62 of the Coroners and Justice Act 2009 and the related provisions in Schedule 13 to that Act.

Amendment 40BB would amend paragraph 2 of the schedule. The first half of paragraph 2(1) of Schedule 3 states that the possession offence applies to a domestic service provider who is in possession of a prohibited item in an EEA state other than the United Kingdom. The words in brackets in the second half of that sub-paragraph reiterate that the offence also applies to,

“a person, of any description”,

who possesses such material in England, Wales or Northern Ireland. The qualifying words “of any description” are designed to make clear that, in those circumstances, the offence applies to all persons: that is, not just domestic service providers. The words are not intended to imply, as was, I think, my noble friend’s concern, that the person can be a legal or corporate person, as well as a natural person. As my noble friend will be aware, by virtue of the Interpretation Act 1978, the word “person” is taken to have that meaning in legislation anyway.

Amendment 40BC is intended to clarify the application of paragraph 5(4) of the schedule. Paragraph 5 provides an exception from liability for a service provider who possesses the prohibited material while storing the information in certain circumstances. Sub-paragraphs (2) and (3) set out the two conditions that must be satisfied for the exclusion to apply. Sub-paragraph (3)(c) provides that where the service provider has actual knowledge of certain facts, it will be excluded from criminal liability only if, in addition, it promptly removes the prohibited material or disables access to it. Sub-paragraph (4) sets out the facts that give rise to that additional obligation.

The effect of the amendment would be to remove the availability of the exception in paragraph 5 altogether, where the service provider obtains actual knowledge of the facts set out in sub-paragraph (4). The Government’s intention, as required by the e-commerce directive, is that a service provider should not be criminally liable in those circumstances as long as the information is promptly removed or access to it is disabled.

I recognise that these issues are not straightforward and that my noble friend Lord Dholakia will wish to study my response in Hansard. If, having done so, he or my noble friend Lady Hamwee requires further explanation, I will be happy to provide it. However, for now, I trust that he will be content to withdraw the amendment that he moved on behalf of my noble friend Lady Hamwee.

[Lord Dholakia]

My Lords, I am grateful to the Minister for the explanation that she has offered. I will certainly make sure that my noble friend Lady Hamwee receives a copy of Hansard. Whether she is cheered by it, we will soon find out at the Report stage. In the mean time, I beg leave to withdraw the amendment.

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[Baroness Williams of Trafford]

My Lords, I commend noble Lords who spoke to the amendments in this group, which show how seriously this House takes the practice of female genital mutilation. These amendments seek, in their different ways, to further our common objective of ending the abhorrent practice of female genital mutilation.

In moving Amendment 40BA, the noble Baroness, Lady Meacher, is, as she explained, seeking to give effect to a recommendation made by the Local Government Association. The association recommended that a specific offence of “inciting and condoning” the practice of female genital mutilation would make it easier to bring cases against those who advocate it, whether they reside in or are visiting the UK. As I hope Clause 64 demonstrates, the Government are open to identifying ways in which the law might be strengthened to help put an end to female genital mutilation and better to protect victims. We are already considering recommendations made by the Director of Public Prosecutions, one of which we will debate shortly, and we are looking carefully at the recent recommendations made by the Home Affairs Select Committee, to which the noble Lord referred. In this instance, however, I hope to persuade the noble Baroness that her proposed amendment is unnecessary as the behaviour that it seeks to criminalise is already covered and can more effectively be punished by existing provisions of the law.

The common-law offence of inciting the commission of another offence was abolished by Section 59 of the Serious Crime Act 2007 with effect from 1 October 2008, and replaced by the provisions in Part 2 of that Act, which I will refer to as the 2007 Act. They are as follows: intentionally encouraging or assisting an offence; encouraging or assisting an offence believing it will be committed; and encouraging or assisting offences believing one or more will be committed. To be convicted of encouraging or assisting an offence, it is not necessary for the anticipated principle offence to take place. In addition to these legislative provisions, if an FGM offence is actually carried out then anyone who aided, abetted, counselled or procured the offence would be liable as an accessory.

We believe that the existing law is sufficient to cover those who encourage or assist the practice of female genital mutilation and those who take part in an offence in a secondary way, whatever their reason for doing so. The offences in Part 2 of the 2007 Act also have extraterritorial application: they can cover those who encourage or assist, wholly or partly from this country, offences of female genital mutilation that they know or believe will be committed abroad.

[Baroness Meacher]

I am sorry to interrupt the Minister but I wonder whether I have understood this correctly. My understanding is that the current law talks about aiding a particular offence of FGM. What we are concerned about is the general promotion by community leaders and faith leaders of this practice. I am not sure whether this is the case, but my feeling is that perhaps the current law does not fully and effectively cover that point.

[Baroness Williams of Trafford]

I think I will get on to that further on. As the noble Baroness said, we need to go beyond the law and think about other aspects of how we stop this happening in our communities. I hope I will answer her question, but if I do not I am sure she will stand up again.

This possibly comes on to it: a person convicted of encouraging, assisting, aiding or abetting an offence is liable to any penalty for which he would be liable on conviction of the principle offence. So a person convicted of encouraging, assisting, aiding or abetting an offence of female genital mutilation would be liable, on conviction on indictment, to imprisonment for up to 14 years. Amendment 40BA, which provides a maximum penalty of seven years’ imprisonment for encouraging or assisting the promotion of the practice of female genital mutilation, would therefore have the effect of reducing by half the maximum penalty currently available for such behaviour.

The noble Baroness is, of course, right that the long-term and systematic eradication of FGM in the UK will require practising communities to abandon the practice themselves. While the criminal law can play a part in this, the recent Home Affairs Select Committee report quite properly also pointed to the need for more effective engagement with communities to persuade them to abandon the practice. To this end, the Government are spending £100,000 on the FGM community engagement initiative. Charities were invited to bid for up to £10,000 to carry out community work to raise awareness of FGM among women who have already been affected by FGM and young girls at risk, as well as men. We are now funding 12 organisations to deliver community engagement activity, and we will continue to work with civil society organisations to examine how we can support and facilitate their engagement with communities in the UK. It is noteworthy that in its report the Home Affairs Select Committee made no recommendation in favour of a new offence of promoting or encouraging FGM.

I now turn to Amendment 40CA. As the noble Lord, Lord Rosser, has explained, this amendment would extend to the victims of FGM the same anonymity that already applies to the alleged victims of many sexual offences.

[Baroness Meacher]

Well, the Minister did say that I could stand up again if she did not answer my point. I was listening very carefully to her words, and they still related to a specific offence of FGM, whereas this amendment is about its general promotion—for example, in a faith leader’s sermon—which is a different thing. I only ask the Minister if she could take this back and consider it. I have said enough, and I do not want to interfere with her answer to noble Lords.

[Baroness Williams of Trafford]

I shall certainly go back and think about what the noble Baroness has said. There is no provision in law for condoning something, and that is what she is suggesting. Perhaps I could clarify it with her further. I apologise if I have not quite answered her question.

Can we now move on to Amendment 40CA from the noble Lord, Lord Rosser? He talked about the same anonymity being applied to victims of FGM that already applies to victims of other sexual offences. This follows a recommendation by the Director of Public Prosecutions. FGM is an offence of a particularly personal and sensitive nature, and the DPP believes that it is important that its victims should know that their identity will be protected if a prosecution takes place. The DPP has argued: that this protection needs to be guaranteed, rather than discretionary; that it should apply from the outset, when an allegation is first made, rather than from the point of charge; and that it should last indefinitely. The director believes that such anonymity would go far to encourage the further reporting of this offence.

These are powerful arguments, and we are considering them carefully. In doing so, we will also take account of the fact that, in its recent report on FGM, the Home Affairs Select Committee endorsed the DPP’s proposal. There are some questions that we need to resolve, but I assure your Lordships that the Government see the force of the argument, and I am confident that they shall shortly be in a position to announce their conclusions.

Going back to the noble Baroness, Lady Meacher, I have just been given an additional note. I will read it out: “Where the general encouragement of FGM related to a specific act, constituting an offence would depend on the circumstances of the case, but we believe such conduct could be covered”. If that still does not answer her question I am happy to write to her. But on the basis of everything I have said, and in the knowledge that we can and should return to this issue on Report, I hope that the noble Lord, Lord Rosser, and the noble Baroness, Lady Meacher, will be content at this stage not to press their amendments.

[Baroness Meacher]

I thank the Minister for her careful response. I hope that the Minister will agree with me that she has not really answered the point. I am grateful, therefore, that she will take this back, and hope that we can perhaps have discussions with Ministers and officials to sort it out. On that basis I withdraw my amendment.

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Moved by

[Baroness Williams of Trafford]

40D: Clause 67, page 49, line 30, leave out “or revoke” and insert “, revoke or otherwise modify”

[Baroness Williams of Trafford]

My Lords, Amendment 40D to Clause 67 responds to a recommendation by the Delegated Powers and Regulatory Reform Committee in its report on the Bill. The committee has pointed out that any regulations made under Clause 67(2) amending, repealing or revoking any provision of primary legislation would be subject to the affirmative procedure, but that the negative procedure would apply to any regulations otherwise modifying primary legislation. The Government accept the committee’s argument that a non-textual modification of primary legislation is capable of making changes which are no less significant than textual amendments and that, accordingly, the affirmative procedure should also apply in such cases. Amendment 40D therefore amends Clause 67(5) to this end. I am grateful to the Delegated Powers and Regulatory Reform Committee for highlighting this issue. Amendments 42A and 44 make a technical adjustment to the commencement power in Clause 70. I beg to move.

Amendment 40D agreed.