Additional Consultation Questions paras 12 to 19
Additional Consultation Questions
12. Although not part of the code itself, the Government has undertaken to Parliament, in the context of consulting on the code, to invite views on whether the penalty of two years imprisonment, in section 53 of RIPA, for knowingly failing to comply with a requirement to disclose protected electronic information in an intelligible form or to disclose a key to that information should be extended in cases related directly or indirectly to offences involving the possession of indecent images or pseudo-indecent images of children.
13. There are a number of cases where protected electronic information has frustrated investigations of offenders convicted of possession of indecent images or prevented the prosecution of suspects or identification of victims.
14. In cases such as these, implementation of Part III will provide an ability to prosecute offenders who fail to comply with a lawful disclosure requirement in relation to their protected information.
15. However an offender who may face up to ten years imprisonment for possession of indecent images or pseudo-images, if their protected information is rendered intelligible, may readily accept a sentence of two years imprisonment for failing to disclose protected information or the key to that information.
16. Recognising the seriousness of knowingly failing to comply with a disclosure required in the interests of national security, where a terrorist or terrorist suspect might accept up to two years imprisonment rather than disclose their protected information, section 15 of the Terrorism Act 2006 has amended section 53 to make the appropriate maximum penalty five years in that instance.
17. The Government would therefore welcome views on whether a person found guilty of an offence under section 53 should be liable to an appropriate maximum term of more than two years where:
- (i) that person has been previously convicted of an offence contrary to section 1 of the Protection of Children Act 1978 or section 160 of the Criminal Justice Act 1978, or
- (ii) the apparatus or device containing the protected information contains an indecent photograph or pseudo-photograph of a child, or
- (iii) the apparatus or device containing the protected information has come into possession of any person together with other apparatus or a device which contains an indecent photograph or pseudo-photograph of a child, or
- (iv) the court is satisfied that the protected information is likely to contain an indecent photograph or pseudo-photograph of a child (on the basis, for example, of evidence from a witness);
18. Where, in those specific circumstances, the person found guilty of the section 53 offence could show that the protected information did not contain an indecent photograph or pseudo-photograph of a child they could be liable to no more than a maximum term of two years.
19. Your comments and views are therefore invited on the following questions:
- (v). Do you consider that a person guilty of an offence under section 53 of RIPA should be liable to an appropriate maximum sentence of more than two years in the circumstances described in paragraph 17? If not, please say why?
- (vi). What maximum sentence in excess of two years imprisonment would you consider to be appropriate in those circumstances, if you think it would be, and why?