Defence

Question proposed, That the clause stand part of the Bill.

I shall be very quick. Do I take it from the Minister’s comments on the previous clause—I think that I do—that she would not consider a further defence: that the person in question reasonably believed that no one portrayed in the image was made to act against his or her will? That was the nature of the amendment tabled by me and the hon. Member for Leyton and Wanstead, which unfortunately, was tabled too late to be selected for debate. We nevertheless feel that it is worth asking the Minister to respond.

I shall not keep the Committee for long, but Liberty has made the point that the burden of proof is unfairly on the defendant, including when the matter in question is highly subjective. Liberty argues that the burden of proof should be placed on the prosecution as far as possible, as is the case in the normal run of things for all sorts of offences. When my hon. Friend the Minister looks at this matter again, will she consider that point?

Before the hon. Gentleman intervened, I was going to ask the Minister what the Government meant by having a legitimate reason. Surely—this feeds into the point that the he made—it is for the  prosecution to prove that the possessor of the image had no legitimate reason to possess it. That is the guts of the offence—the unlawful possession of an extreme pornographic image.

I will answer the latter point first. The hon. and learned Gentleman thought up one answer already when he referred to police officers in rooms looking at this material in the course of their job, with quite legitimate reasons to do so. That would be one example, and there may be others, but certainly there will be some people who need to look at this material for the purposes of law enforcement. There may be others who work for ISPs who operate filter systems that block this material coming from servers into their ISP, who also would have legitimate reasons for being in possession of such material. It is that kind of possession that we are seeking to deal with in the clause.

The clause sets out defences for a person charged with the offence of possession. It is not the intention of the Government to penalise people who may stumble across the material when using the internet or who have it sent to them without their consent, or to penalise those who need to possess it for a legitimate reason. The defences mirror arrangements that already exist for those charged in respect of the possession of indecent photographs of children under the Criminal Justice Act 1988.

On the points made by my hon. Friend the Member for Leyton and Wanstead and the hon. Member for Somerton and Frome—the relevant amendments tabled in their names were not called—I think that they both know the answer to those points, because we dealt with them in considering previous clauses. Providing the defence that the image was made by consenting couples or groups does not deal with the fact that we are trying to catch the harm caused by the images themselves and their impact on those who view them, rather than the impact on the participants, whether they participated because they wished to or because they were forced to. On that basis, I hope that the Committee will accept clause 66.

Clause 66 ordered to stand part of the Bill.