Paul ("Gary") Beresford MP's CJP amendment on failure to decrypt

[Caspar Bowden]

This amendment fell, but it seems amazing that NO-ONE was prepared to make
the point that just because encrypted material is seized under a particular
act of parliament, is not evidence that that material in fact is child
pornography.

Clarke's waffle, as usual, is devoid of principle.
--
Caspar Bowden               Tel: +44(0)20 7354 2333
Director, Foundation for Information Policy Research
RIP Information Centre at:    www.fipr.org/rip#media

http://www.publications.parliament.uk/pa/cm200001/cmhansrd/cm010314/debtext/
10314-20.htm#10314-20_spnew0

'.--At the end of section 53(5) Regulation of Investigatory Powers Act 2000
there is added--
"(c) on conviction on indictment, to imprisonment of a term not exceeding
ten years or to a fine, or to both, where the encrypted material has been
seized under section IV of the Protection of Children Act 1978.
(d) on summary conviction to imprisonment for a term not exceeding five
years or to a fine not exceeding the statutory maximum or both where the
encrypted material has been seized under section IV of the Protection of
Children Act 1978".'

http://www.publications.parliament.uk/pa/cm200001/cmhansrd/cm010314/debtext/
10314-22.htm
Clarke: As the hon. Member for Mole Valley said, we debated the subject
matter of new clause 10 at great length both in the Committee that
considered the Regulation of Investigatory Powers Bill and on the Floor of
the House. It was also debated in the other place. The hon. Gentleman
participated in the debates in the House. My hon. Friend the Member for
Luton, South (Ms Moran) participated

14 Mar 2001 : Column 1088

actively in the debates in the Chamber. I recall Baroness Thornton playing
an active role in promoting the arguments in the other place.

7.45 pm

A range of children's charitable organisations argue that those who have
committed appalling crimes should not be able to avoid the sentencing
consequences of those crimes by refusing to give the encryption information
that is necessary to convict them. I have great sympathy with that powerful
and true point. We had to make a balanced judgment. As I said during
proceedings on the Regulation of Investigatory Powers Bill, the need to
tackle the activities of people who utilise new technologies was a strong
driver behind part III of the Bill. We resisted calls to increase the
sentences for a section 53 offence along the lines suggested in the new
clause because we could honestly say that the non-compliance offence was
difficult to formulate. As with the rest of the Act, it was all about
striking a balance.

The overriding concern in setting offences must be the seriousness of the
offending. In our view, there is no parity between the crimes that we are
talking about and the offence of not providing the encryption that would
enable those crimes to be identified. We took the view that the penalty for
that offence did not and should not depend on or vary according to the
nature of the material that may be protected by that key.

Opposition Members criticised us last year on the grounds that part III
amounted to a return to key escrow by intimidation. They expressed that
genuine and legitimate point on behalf of the industry. We did not accept
that argument. I hope that the hon. Member for North-East Hertfordshire (Mr.
Heald) will concede that we had a balanced debate throughout the Committee
stage on the need not to attack the industry too much in the regulation that
we were establishing. We had to balance that with the key public law
enforcement issues. That was a constant theme of our debates. We took the
view that we should keep a hierarchy of offences and not confuse the offence
with the decryption offences. That was why we came to the view that we did.

Of the three new clauses in the group, new clause 10 gives me most
difficulty. There is a real case for what the hon. Member for Mole Valley is
advocating. I said that directly to the children's organisations and to my
colleagues in this place and the other place who argued the case that the
hon. Gentleman articulately put this evening. We came to the judgment that I
have set out, and I ask the hon. Gentleman to consider withdrawing the
motion on those grounds.