Voyeurism (Offences) (No. 2) Bill
Monday 2nd July 2018
(5 years, 9 months ago)
General CommitteesRead Full debate Voyeurism (Offences) Act 2019 Read Hansard Text Read Debate Ministerial Extracts
The Chair
Before we begin, I shall spend a moment outlining the procedure for this Second Reading Committee, because it an uncommon type of Committee.
The Committee is charged with recommending to the House whether the Bill ought to be read a Second time. Debate in Committee replaces a debate on Second Reading in the House so, after the Committee has made its recommendation, the question on Second Reading in the House will be decided without further debate.
The Second Reading rules governing a debate in the House apply in Committee so that, in particular, Members may speak only once, other than by leave of the Committee or through interventions. I now call the Minister to move the motion.
The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)
I beg to move,
That the Committee recommends that the Voyeurism (Offences) (No. 2) Bill ought to be read a Second time.
It is a pleasure to serve under your chairmanship, Ms Buck.
In my short time as an MP, one thing has struck me most: the ability of an individual MP who cares deeply about an issue to have an impact on people’s lives for the better. I therefore start by acknowledging the work of the hon. Member for Bath in campaigning tirelessly to ensure that a Bill on upskirting, which is now the Bill this Committee is considering, becomes law. We are here because of her tenacity, and it is to her credit that such an inappropriate act will become illegal.
I also acknowledge the work of two incredible people, Gina Martin and her lawyer Ryan Whelan. As MPs, we have the levers and tools to make change, but for members of the public it is much more difficult, and I very much doubt that we would be discussing the Bill’s Second Reading today without the work of Gina and Ryan. I thank them for all their hard work in highlighting the issue.
I also thank Members in all parts of the House for the progress that has been made. The Labour party, Plaid Cymru and the Scottish National party have all been very supportive of the Bill and have helped to ensure that it has progressed swiftly through the House. I am grateful for the constructive way in which the hon. Members for Bolton South East and for Dwyfor Meirionnydd have approached the legislation. The Bill has only been possible because of cross-party support. We all entered Parliament to bring about positive change, and I am proud to be leading on a Bill that will protect women and that proceeds with the support of all parties. This is Parliament at its finest.
I shall set out briefly, first, what upskirting is; secondly, what measures there are to deal with it and why there is a gap in the law; thirdly, how we are bridging that gap and ensuring that there are the tools to punish offenders appropriately; and, finally, other important areas relating to sex offences that have been raised in wider public debate.
First, what is upskirting? It is the practice of taking a photograph up a person’s skirt or clothes without their consent. Unfortunately, people are undertaking such activity across the country, from the assistant headteacher who upskirted his own pupils at a convent school to the vice-president of a ticketing company who collected more than 50,000 upskirted images for his own sexual satisfaction. We have to acknowledge that upskirting is taking place—indeed, online guides instruct others how upskirting can be done quickly and easily—and people affected by upskirting have variously described their experiences as “scarring”, “an invasion”, and “embarrassing and humiliating”. One woman, who was on the tube with her parents when she was upskirted, said that it made her feel like she wanted to “peel off her skin” and “scrub it clean”.
Secondly, we are tackling upskirting because there is a gap in the law that needs to be filled and can be filled quite simply. At the moment people can be prosecuted for upskirting through two offences, and successful prosecutions have taken place. The first possible route is through the common law offence of outraging public decency. However, under review that approach was found to be problematic, because it does not capture all the circumstances in which upskirting can happen. Convictions under the common law offence of outraging public decency require an act such as upskirting to happen in public where there is a reasonable chance of at least two other people witnessing it. Conversely, the action can also be caught under the existing offence of voyeurism but, again, there are limitations, as that act is illegal only if it takes place somewhere where there is a reasonable expectation of privacy. In certain circumstances someone is in neither a public nor a private place, and it follows that therefore the action would not be caught by the law. Worryingly, those places might include schools or workplaces.
Thirdly, how will we ensure that the offence is dealt with appropriately? It will be done in a number of ways. The Bill makes it an offence for a person to operate equipment beneath someone’s clothing to observe, allow someone else to observe, or record an image of their genitals or buttocks, whether exposed or covered by underwear. We are ensuring that people carrying out the offence with different motivations will be caught by the Bill. There are different reasons for upskirting, and we have ensured that the Bill will capture that behaviour whether the motive is to obtain sexual gratification or to cause humiliation, distress or alarm to the victim.
Mrs Maria Miller (Basingstoke) (Con)
The Minister is outlining the importance of the offence in great detail, and has talked about reasons why an individual might engage in upskirting. Another reason why someone might take upskirting photographs is financial gain, but the Bill does not capture that and there is concern in Scotland about whether that is an omission from the Bill. Will the Minister comment on that?
Lucy Frazer
That is an important point, which some people have raised: should photographers who use such photographs for financial gain be caught by the offence in the Bill? It is possible that they, too, will be caught, because the Bill specifies two purposes for which an offence can be committed and only one is needed to satisfy the requirements of the Bill. Someone taking the action in question in the knowledge that it might cause distress, and with that intention in addition to financial gain, would be caught by the offence. It is also possible that photographers who sold photographs on to newspapers could be caught under the offence of outraging public decency, if the offence happened in a public place. They might be caught by section 4A of the Public Order Act 1986.
The Government want to ensure that we protect the public from future actions by those who commit the most serious sexual offences. Those who commit a sufficiently serious act for sexual gratification will be placed on the sex offenders register. That is right because it gives the police a tool for the management of sex offenders in the community, making it possible to put restrictions on their movements if they may pose a continued risk to others.
Importantly, those who engage in upskirting, but not for sexual gratification, and who are not the most serious sex offenders and do not need to be monitored by the police as posing a sexual risk to others, will not face the consequences of being on the register. Being on the sex offenders register has serious implications for a person’s life, so the Bill will not prejudice young people who undertake the act in question but not for sexual motives. We need to protect victims, but we should not stigmatise young offenders unnecessarily. We are ensuring that the punishment fits the severity of the crime. As with other sex offences, the punishment may include up to two years’ imprisonment, and there will be anonymity for victims.
We are bringing in the Bill with speed, to fill a gap in the law that needs to be rectified. However, I want to say a few words about other types of sexual wrongdoing, which have been raised in the House and among the public in the past few weeks. Undoubtedly, to keep the law up to date with the prevalence of such issues, and with technology, we should continue to keep other areas of the law under review. I am very sympathetic to many points raised about that by hon. Members on both sides of the House. Many fair points have been made, but often there are no universally accepted solutions, or the relevant issues are complex and not self-contained.
The Government continue to be alive to the fact that new technology may facilitate the carrying out of degrading acts, but we are determined to get the Bill on the statute book as quickly as possible.
We have identified a gap that needs to be filled, and I know colleagues on both sides of the House want to work together in that endeavour. I and other Ministers in my Department will be very happy to sit down with any Member of the House to discuss any similar matter, but I will urge the House to pass this Bill.
It is just 17 days since the private Member’s Bill in the name of the hon. Member for Bath failed to progress through the House. I commend the cross-party support and liaison that has allowed this Bill to be brought forward. I am grateful to the hon. Lady for her endeavour and commitment to get it on the statute book as soon as possible, and I commend the Bill to the Committee.
Yasmin Qureshi (Bolton South East) (Lab)
It is a pleasure to serve under your chairmanship, Ms Buck.
I begin by congratulating the campaigners, in particular Gina Martin, who has shone a spotlight on this important issue, and the hon. Member for Bath, who has supported those campaigners and worked so diligently on this issue. I welcome the Government’s decision to finally agree to introduce this legislation, but the delay in getting here has been wholly unnecessary and frankly scandalous. It has been almost a year since the shadow Justice Secretary first raised it with the Minister and demanded new legislation. It has taken the Government’s being forcibly shamed into acting after the outrageous actions of a Tory Member of Parliament, who acted to derail a much needed and universally supported change in the law.
Let us be clear: upskirting is a depraved violation of privacy. Failure to change the law to reflect that represents complicity with those committing these appalling crimes. It is shocking that in England and Wales there is no specific criminal offence to cover this offence and that instead it must be prosecuted under the more general offences of outraging public decency or voyeurism, especially when we know that it can be difficult to satisfy the requirements of those more general offences, which in some cases means that prosecutions simply cannot be brought.
For example, the law as it stands means that the focus of the offence is on protecting the public from potential exposure to lewd, obscene or disgusting acts, rather than protecting the individual victim. Some people have been prosecuted for upskirting on the basis of outraging public decency. That is absurd, as it should not matter how public it is. The law should focus on the individual victims and the crime committed against them. It is their body that is being taken advantage of without their consent, and their privacy that is being violated.
A number of cases highlight the many failings of the current laws. In 2007 Simon Hamilton, a barrister, was convicted after secretly filming up the skirts of women in supermarkets. He was able to appeal on the basis that, as none of the victims had been aware of the filming and no one else had seen it, public decency could not have been outraged. There was also the case of Guy Knight, a former chartered accountant, who took photographs up women’s skirts on trains over a period of five months while commuting to work. He was caught after suspicious passengers reported him to the police. More than 200 illicit images were found on his phone and laptop, and 10 of the women in the pictures were traced by the police. None of them were aware that they had been photographed. Last year, Guy Knight was fined £500 and ordered to pay £500 costs. The detective constable in the case, Bob Cager, said that he was
“extremely disappointed. We thought he would have received a heavier sentence.”
It is no wonder that it can be extremely distressing for women who have become aware of such pictures being taken of them. Indeed, the sense of violation can be the same as with other forms of sexual assault. As a former prosecutor and barrister, the fact that this is not a criminal offence in all circumstances baffles me as much as it horrifies me. I understand that upskirting is a crime of the modern era, but in Scotland upskirting has been an offence since 2009. There is simply no excuse for delay on this issue.
Alex Chalk (Cheltenham) (Con)
It is a matter of great regret that the hon. Lady is taking such a partisan approach. In 2009 a Labour Government were in power in the United Kingdom, and they did absolutely nothing. Will she take this opportunity to come together with Members across the House and celebrate that swift movement has been made to right some wrongs?
Yasmin Qureshi
I will come on to our working together collectively. As the Minister is aware, we do not object or seek to amend any part of the Bill. However, for the last eight years we have had a Conservative Government, and more specifically the Minister mentioned this problem last year. In any event, as I said, it baffles me that this is not a criminal offence. Of course, we will support it becoming one, but we cannot pretend it has not been ignored for so many years. That would not do justice to the victims, witnesses and other people affected.
Women have increasingly been speaking up, with one of the first being Gina Martin, who founded the campaign. Less than a year ago, she was at a festival in London with her sister when she was horrified to notice that the man behind her had taken a photo up her skirt. Shocked and distressed, she sought help from the police, but the law was not sufficient to ensure that they could help her. That is why a change in the law is required. Indeed, Dame Vera Baird, QC, from the Association of Police and Crime Commissioners, said that the current legislation
“is far from clear as there is no specific offence”.
We must remember that many women right across the UK are being affected. It can happen to women on public transport, in a park, at a concert or even just on a walk along a busy street, without the victim even realising that a photo has been taken.
In an article in The Guardian, Emine Saner tells the story of Lucy Parkinson, then 21 years old, who was shopping in Ealing, west London, when she heard an altercation behind her between two men. She said:
“I was crossing the road, and got stuck with a pack of other people at a traffic island…I was wearing a long-sleeved blouse and a white knee-length skirt.”
One man ran off and the other told her he had
“chased him away because he had seen him ‘upskirting’ me…I hadn’t even noticed it happening…and that’s the most unsettling part—in a city, you just don’t notice physical proximity to strangers. It could have happened a dozen other times too, for all I know.”
She continued:
“I felt unsettled, targeted, and helpless; there was nothing that could be done about what had happened, and nothing I could do to prevent it from happening again.”
It is impossible to judge how many women may have been victims of upskirting, although a quick internet search will bring up hundreds of sites and thousands of images. There may be millions more pictures on phones and laptops, taken on the streets, on escalators in shopping centres, on trains, at bus stops and in supermarkets, nightclubs and other places, that may or may not have been shared.
The Minister is aware, as Members will be, that there are endless web forums where amateur upskirters can exchange tips on how to get the best pictures. One was posted by a man who had made a “cam-bag”—a holdall with a specially made pocket with a hole for a digital video camera lens. The post says:
“Never forget to shoot their faces before or after to know which girls the ass belongs to...After the first…asses, they look very similar and you lose most of the fun. After upskirting them, either step back and wait for them to turn or step by them and shoot directly sidewise.”
Another poster on the forum said that he operates
“mostly at theme parks and tourist hotspots, or really anywhere that draws a large crowd of spectators and cameras”.
He finds
“an attractive young lady, preferably a teen for my tastes, and then I evaluate the situation.”
He would sit down next to a young woman and surreptitiously film her while pretending to fumble for new camera batteries in his bag.
On another site, one man posted:
“I’ve been upskirting chicks, mostly at clubs, for almost two years. The club I go to is a great spot, real crowded, strobe lights going, loud music, so no one notices me sitting near the edge of the dance floor and if a woman in a skirt ends up by me I stick the cam under and snap.”
Those stories makes one aware of how shocking and vile this behaviour is, and I am pleased that—eventually—it is to be outlawed. Again, we must thank the campaigners and hon. Members who have been pushing for that.
In conclusion, the scope for people taking upskirt photographs has clearly increased with the development of mobile phone technology. A gap in the law has allowed this to happen, and I am proud that for some time we have backed the campaign to bring this to legislation. I have a couple of technical questions, however. First, the legislation for this offence as it stands effectively has two limbs. One is that the act is done for sexual gratification. The other is that it could lead to harassment or distress. We are told that if someone is convicted under the sexual gratification limb, that can lead to their being put on the sexual offences register.
I have some practical questions. Would the prosecutors have to charge these things as two separate offences, counts, indictments or charges, or is it up to the justices in the magistrates court and the jury in the Crown court to decide which limb to convict the defendant on? Can the prosecutors draft it as one count with two parts? If a perpetrator is convicted on the first limb, but evidence shows that what has happened falls under the second, will the prosecutor be able automatically to amend the indictment and put a new charge in, or will they have to seek permission from the justices to do that?
Those are legal and technical questions, but they are important, because when a case comes before a prosecutor, they need to know whether to charge with one offence, depending on the circumstances of the case, or to charge with both and let the jury, in the Crown court, or the justices, in the magistrates court, know. Perhaps we can have some clarity on that.
Wera Hobhouse (Bath) (LD)
It is a pleasure to serve under your chairmanship, Ms Buck. I thank everyone for being here today. It is testament to the importance of the issue that we have all ensured that this, my original Bill, has been introduced by the Government and brought through the House to Second Reading so quickly.
Over the past couple of weeks, I have met many members of the Committee to ensure not only that we can change the law as quickly as possible, but that this Bill is as good as it can be. As a Committee, when we go forward with examining the Bill, we must ensure that throughout the process the victims of the crime remain at the forefront of our considerations. I have met with victims over the past few months, such as Gina Martin, who started the campaign last summer. Their bravery has ensured that this crime will stop happening and their campaign has been an inspiration to us all. Without their selflessness and hard work none of us would be here today. For that reason, it is important that we pass the Bill as quickly and effectively as possible.
By ensuring that upskirting becomes a sexual offence, we are sending a clear message that it will not be tolerated. It is a vile practice that has no place in society. If I am honest, I do not know why the law in England and Wales was not changed earlier. This Bill, however, does more than just make upskirting a specific sexual offence. The national debate the campaign has provoked will hopefully lead society to talk more widely about consent. This vile act can happen to anyone, but if we look at the victims, it is clear that it is predominantly an issue of how we, as a society, view women and their autonomy over their own bodies.
Since I have been campaigning to make upskirting a specific offence, I have heard from various groups and individuals who had similar, awful experiences of a sexual nature, albeit not upskirting, which have also not been followed by prosecutions and where there seems to be a gap in the law. The fight to protect women from violent practices does not end here. As the original proposer of the Bill, I recognise that this is not a silver bullet. I will not ignore the plight of other women now that this Bill is passing through Parliament. We must use this opportunity to raise the inconsistency of the law, as it stands, against sexual offences. Currently, for example, revenge pornography is not considered a sexual offence, but, like upskirting, it is done without consent and is humiliating and incredibly distressing to victims. I urge the Government to undertake a review of other sexual offences.
Throughout my work on the Bill, I have been incredibly grateful for support from the Government and colleagues across the House. It has been rewarding to work together so effectively on it, and I hope that we shall continue to do so to make sure that the law protects women and girls in the UK. Of course, I support giving the Bill a Second Reading.
Mrs Miller
After being in the House for 13 years I thought that the time for firsts was over, but this is the first time I have ever been on a Second Reading Committee, and it is great to be here, Ms Buck, and to serve under your chairmanship.
The Bill should most definitely be read a Second time. I pay tribute to the hon. Member for Bath for her tenacity in securing support from the Government for the Bill, and to the Minister for listening, which is sometimes a difficult thing to do. I have listened to what she has said today about the importance she places on clarity in the law. It is sometimes too easy to be convinced by officials that the law is sufficient and that change is not needed. However, I pay tribute to the Minister, who did not accept that. With the support of the Prime Minister, who also was not so easily convinced, we are here to debate a long overdue new law.
I want to pause to reflect on the Minister’s response to my earlier intervention, when I raised the possibility of upskirting being done for a profit motive. She specified many existing laws that would cover it—and that might be great for someone who is, like her, an eminent QC, who understands it, but I urge her to think about the problems that the police and victims face when the law is not as clear as it needs to be.
Today we are debating public sexual harassment, non-consensual sexual behaviour and, in particular, issues to do with image-based sexual abuse. We must be clear about it: the law is wanting in that area. The hon. Member for Bath talked about the need to address inconsistencies, and the importance of fighting to the end the vile practices that are apparent. I agree that upskirting is important, but there is a need for the law to deal with far more practices.
We debated the issue of revenge pornography in the House in 2014, and it was unclear whether it was against the law. The then Minister, now the Under-Secretary of State for Northern Ireland, my hon. Friend the Member for North West Cambridgeshire (Mr Vara), recited a long list of different legal provisions that could catch revenge pornography; but for victims the reality was that that was all for naught. The police did not understand it; the courts did not seem to understand how those laws worked; and hundreds if not thousands of victims had to endure revenge pornography—the posting of intimate abuses online—without any redress. I am pleased that we are dealing with the present issue, and that the Government have dealt with revenge pornography, by legislating.
I am afraid, however, that we shall be back here again shortly to debate the fact that the law does not cover other ways in which people can be abused online. One issue is deepfake technology. Readily available software packages can be used to swap other faces for those of the actors in pornographic films. At the moment it is being done with the faces of other well-known actors, but what is to stop it happening with the faces of well-known politicians, or a person’s ex, or someone they know, or someone they saw in the street and happened to take a picture of? Today we are dealing with upskirting, but the Government need to take a long, hard look at image-based abuse, because more problems are coming down the line.
When I campaigned to make revenge pornography a crime, I was told by the Crown Prosecution Service—I remember it well—that there was not sufficient need and that only a handful of cases came across its desk. Others said that the victims were to blame for the photos being taken in the first place. Fortunately, the Government knew better and acted, and more than 500 crimes a year are now successfully prosecuted, although hundreds more could be, as I will discuss later.
Although we are congratulating ourselves on this legislation today, we need to ensure that we undertake a much broader review of sexual image-based abuse, and that we do it quickly. That will ensure that we future-proof the law, that we clearly set out to people who seek to undertake such appalling acts that they are against the law, and that we give the victims involved the redress that they deserve in the criminal system.
Secondly, in this broad debate, I ask the Minister to consider, in parallel with her consideration of this law, the changing nature of the offences that are captured by non-consensual sexual behaviour and how they are dealt with in law. There are some grave inconsistencies that appear to show disinterest in the victims or that demonstrate, at most, a lack of understanding of perpetrators’ motives when it comes to undertaking such sexual image-based abuse. For instance, flashing in a mac is a sex offence and is notifiable if the intent is to cause harm or distress, yet creating deepfake porn, where someone posts on a website a picture that has the face of an individual appearing to take part in pornography, is simple harassment. It is difficult to understand how the law can come to that conclusion, when we take into the account the impact on a victim of seeing a flasher versus the impact on a victim who has had their image put into a pornographic scene or video.
Where sexual privacy is violated, it is difficult to see why it is not categorised as a sex offence. Those issues, whether upskirting, revenge pornography or deepfake porn, are not just privacy harms; they are non-consensual sexual activity that is often very public, and they are not being sufficiently captured in law. I hope that the Minister will confirm that she will consider what has been said on the issue when she reviews the victims strategy in the coming months.
The sort of sexual harassment that the Bill highlights is important for society to think about more generally. I am delighted that, alongside the progress of the Bill, the Government are progressing another important element, which is education. If there is to be a real change in attitudes towards women and a world where upskirting is no more likely to take place than smoking on a train, it will be because we have changed people’s attitudes towards that behaviour. Of course, the impact of upskirting is even more devastating than that of smoking. I hope that in her response, the Minister may be able to tell us how she is working on, or how the Government will take forward, sex and relationship education, which is being made mandatory for all school-age children. That is an important achievement of this Government after 17 years of prevarication under successive Governments. That implementation could also further the cause of ensuring that people understand why upskirting is wrong, as well as it being wrong in the law.
As I have said, I support the Bill wholeheartedly, but it is clear that amendments could make it even stronger. I thank Professor Clare McGlynn, who has been extremely helpful in advising a number of MPs on how we might be able to strengthen the law in Committee, particularly by closing some of the gaps that are emerging in the Scottish law, under which upskirting is already a crime. That crime is set out as in the Bill before us, yet the Scots are finding that concerns are emerging, because the protection afforded by the way the Bill is currently drafted can be seen as somewhat patchy.
The first issue, which I raised in my intervention, is about those who may seek financial gain from taking upskirt photographs or those who do it simply for a “laugh”. I put that in inverted commas, because this cannot in any way be seen as a laughing matter, even though some will see the images in that way. They do not see themselves as causing immense stress or distress to the victim, and they do not seek sexual gratification from the images. Surely we should make the law incredibly clear and not leave it to our police forces and our courts to try to decipher what Parliament was trying to put in place.
A second issue on which I will seek amendments in Committee also came up in Scotland when a very similar law was passed. It should also be unlawful for images to be distributed, so we should outlaw the distribution of upskirt images clearly and succinctly in the Bill. The Scots had to pass an additional amendment to the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 to ensure that that was addressed, and it is not the same as the amendment that we passed in this country in respect of revenge pornography; it is much broader.
The third objective is to ensure that all upskirting against under-18s is a notifiable sex offence. I do not think that we should leave the Bill as it is at the moment, whereby it is notifiable, when the victim is under 18, only in certain circumstances.
I am very pleased to say that the idea of the amendments that I have described has already gained quite considerable support.
Wera Hobhouse
I have been considering the proposed amendments and the Minister’s explanation about not making this an offence that immediately warrants someone going on the sex offenders register. We are talking about the victim being under 18, but what about when the perpetrator is under 18? The right hon. Member for Basingstoke does not make that clear in her proposed amendments. In discussions with the Minister, I have agreed that having a large number of young people on the sex offenders register might not be a desirable outcome from the Bill.
Mrs Miller
I am not sure that the Bill addresses that issue. I am not a lawyer and certainly not an eminent QC, so the Minister may want to stop me if I am wrong, but I think that those sorts of issues are dealt with in the usual ways by the CPS, which decides whether to bring prosecutions. Like the hon. Lady, my understanding is that the CPS already takes the view that people should not be criminalised if that is not sensible. The issue is not addressed in this Bill—I am sure the Minister will correct me if I am wrong.
The amendments that I have talked about would strengthen the Bill so that all upskirting was a criminal offence. There would be no lack of clarity and no need to invoke other legislation. The Minister would get the clarity that she was setting out the need for—the Prime Minister has also set that out in the discussions on this law in recent weeks. We would ensure that the distribution of these images was against the law. At the moment that may not be the case, because not all distribution would fall under the revenge pornography laws or similar provisions. We would ensure that in all cases in which victims were under the age of 18, upskirting would be a notifiable sex offence, which would simply bring things in line with other parts of the Sexual Offences Act 2003.
I am pleased to say that Members from across the House support those amendments, including the hon. Member for Birmingham, Yardley (Jess Phillips), my hon. Friend the Member for Totnes (Dr Wollaston) and my right hon. Friends the Members for Meriden (Dame Caroline Spelman) and for Loughborough (Nicky Morgan). There is also my fellow Committee member, the hon. Member for Dwyfor Meirionnydd, who has indicated that she is prepared to support amendments to make sure that we have the clarity in our law that Scotland is discovering it does not have. The Bill very much replicates what has gone on north of the border.
In conclusion, I say again that I welcome the Bill. It underlines the need for a more comprehensive look at how we tackle these sorts of offences, perhaps in the same way as the New South Wales Government have done with their Crimes Amendment (Intimate Images) Act 2017, which criminalises all intentional taking and distributing of a private sexual image without consent. That is a catch-all for the many things that we struggle with at the moment, and it will hopefully be a catch-all for things that are yet to come. Education and cultural change is a huge part of this and needs to go hand in hand with changes in the law. I hope that the Minister will today give Members reassurance that, while we are taking forward this important Bill, those other issues are being taken into account as well.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
It is a pleasure to serve under your chairmanship, Ms Buck. I congratulate the campaigners, and also the hon. Member for Bath on her original Bill. I also thank the Government for introducing this Bill.
Back in 2016 I brought forward a ten-minute rule Bill that included measures such as those in the Bill, although it was unfortunately not possible to bring it through to a parliamentary conclusion. That ten-minute rule Bill drew attention to the complexity of the statutes that currently apply to sexual harassment, hate crime and digital technology, which inevitably results in inaction or inconsistency in the approach of the police and the courts. The Bill is a welcome step forward, but there is a need for a complete overhaul and review of sexual offences. I support the Bill moving forward on Second Reading.
A review of all non-consensual taking and sharing of private intimate sexual images, including threats and altered images, such as revenge porn and deepfake pornography, as well as further legislation to future-proof and modernise the law, would protect more victims in an age when the present legislation simply fails to reflect the prevalence of such offences, their impact on victims and the nature of technology and how it is moving ahead. The primary test for legislation is for it to be effective, so I will work with others to amend the Bill. I encourage colleagues who believe doing so might be beneficial to do the same. I believe that it can be strengthened if we consider motivation factors, notification requirements and the distribution of images.
First, the Bill would currently make upskirting an offence only when conducted for the purposes of sexual gratification or to humiliate, which requires further definition. As has been mentioned, the Bill does not criminalise upskirting for financial gain or where the motivation is to take images and to share them among a group of friends as a means of “group bonding”. Instead of focusing on the motivation of the perpetrator, the Bill focuses on whether the victim’s consent was received, regardless of the motivation. We know how much of an impact these offences have on victims.
Secondly, the Bill subjects the offender to notification requirements only if they committed the crime for sexual gratification and when certain age and sentencing requirements are met. That disregards the fact that taking an intimate photo of someone without his or her consent is, by nature, a sexual crime, so all offenders, whatever their motivation, should be subject to notification requirements if they meet the sentencing threshold. There might well be cause to look at the prosecution specifics, if necessary, to protect against the undue criminalisation of minors—that provision is present in other sexual offences legislation, if I understand correctly.
Finally, there is an absence of a specific provision covering the distribution of images, which means that the Bill fails to reflect the ubiquity of social media and the gravity of victims’ suffering. There could be a situation in which taking an image for the purposes of sexual gratification would be illegal under the Bill, but sharing it with exactly the same motive would not be a criminal offence in itself. The Bill should therefore include an additional offence of non-consensual sharing of intimate images.
I reiterate that I am pleased that the Bill will improves the law by making upskirting an offence, but I would beg that, at the same time as reflecting the urgency of what we are all trying to do, we ensure that the law is robust and effective and will stand the test of time.
Alex Chalk
It is a great pleasure to serve under your chairmanship, Ms Buck.
I will say a small number of things. First, I express credit where credit is due—it has already been done, but it bears repetition—to the hon. Member for Bath, to Gina Martin for her campaign and to the Minister, who has acted with great speed and decisiveness. To move so quickly is, if not unprecedented, certainly rare, and it is greatly to be welcomed.
I regret that the tone taken by the official Opposition spokesperson was so partisan, because the idea that the Labour party has been banging on about this since 2010 is simply untrue. Convention precludes me from going into any detail, but the first time the shadow Justice Secretary mentioned it was on 5 September 2017 following the campaign by Gina Martin, who should have the credit for the campaign. The first time the hon. Member for Bolton South East mentioned it was on 18 June 2018. I am afraid it is simply untrue to suggest that this has been a long-standing Labour campaign. The truth is that the blue touchpaper was lit by the campaigner Gina Martin, that the hon. Member for Bath moved quickly thereafter and that the Government then took up the cudgels.
The Bill strikes exactly the right balance. It is important to ensure that this pernicious conduct is properly outlawed, but also that the penalties are proportionate. Making it an either-way offence is a proportionate and appropriate step. A maximum of two years’ imprisonment is also proportionate and appropriate, although we in this House must when we talk about a two-year maximum, or 24 months, that if someone pleads guilty the maximum sentence is effectively 16 months and the maximum amount of time they could spend in custody is eight months. We must recognise that, but none the less it seems to me that it is in keeping with sentences for other offences, not least harassment under the Protection from Harassment Act 1997 and parts of the Sexual Offences Act 2003.
On the more difficult issue of notification, which I anticipate the Government will have grappled with, the balance has again been correctly struck. An offender will qualify for the notification requirements only if the offence was committed for sexual gratification and the relevant condition was met. Where it is an adult offender, the relevant condition is that the victim is under 18, which makes perfect sense—even if it is a one-off case of an adult who, for sexual gratification, upskirts a 16-year-old, it seems to me that notification should follow—or that the offender has been
“sentenced to a term of imprisonment”
and meets various other qualifying elements. Again, that makes the point that it must be a serious incident before it triggers the notification requirements. That is a difficult balance to strike, but I am entirely confident that the Minister has struck the correct one.
Mrs Miller
I note that my hon. Friend is another eminently qualified barrister and I am not—I have never studied the law—but is he not a little bit more concerned about the impact on the victim, rather than always looking at the motivations of the perpetrator? Surely the impact on the victim will be the same regardless of whether this has taken place for sexual gratification or not.
Alex Chalk
My right hon. Friend is absolutely right; the victim must be at the heart of this. Lest we forget, that is the whole reason for having this Bill. However, my view is that the court can take into account the impact on the victim in deciding what sentence is imposed. The Bill will ensure the notification requirements are engaged only for offences where the impact on the victim has been so great as to warrant a significant sentence.
Where I do agree with my right hon. Friend is on the potential to criminalise an individual’s motivation. I can well imagine circumstances where an individual goes to a festival, takes a whole load of photographs and says, “Look, I think this is disgusting stuff, but there’s a market for it. I’m going to put it online and sell it online. Frankly, whether other people get gratification from it, I don’t know. I certainly don’t want to humiliate or distress these individuals; I’m in it for the money.”
Suppose evidence to that effect emerged, such as an email that that individual had sent to the people who were going to upload those photographs to the internet. It would be rather odd if, in court, he was able to invoke by way of a defence the fact that his motivation had nothing to do with sexual gratification, because the email showed that he was not interested in that stuff, and that he had no interest in humiliating, alarming or distressing victims. If he were able to show that he was purely in it for the money, that would be a rather curious argument.
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
The hon. Gentleman is making a strong argument, but would not the very fact of someone uploading such photographs to the internet or putting them in the public domain inevitably cause harm and distress, and would not anyone applying common sense understand that such an act causes harm and distress and therefore fulfils the requirements in the Bill? If it does not, I am genuinely interested to hear more, but I do not understand how it does not.
Alex Chalk
The hon. Gentleman raises an important point. Inevitably, it would turn on the evidence. Supposing such an act were prosecuted, the prosecutor would no doubt say, “We’ve got this email, which shows that this person’s intention was purely to be paid £100 for these images that he got at the festival, but he must have known in passing them on that their value was in the fact that they would lead to distress or gratification, even if that was not his primary purpose but a residual purpose.” Therefore, the prosecution should say, “Members of the jury, forget about that email. It’s irrelevant. Use your common sense.”
I suspect that, in the overwhelming majority of cases, the jury would exercise their common sense and justice would be done. My concern, however, is about whether that is really an argument we want to be having in front of a jury. If there were the potential to close that argument off, a number of judges and even jurors may welcome such clarity in the law.
I congratulate the Government and the individuals involved, including the hon. Member for Bath, on their timely, robust and proportionate approach.
Helen Whately (Faversham and Mid Kent) (Con)
It is a pleasure to serve under your chairmanship, Ms Buck, and to follow my hon. Friend the Member for Cheltenham, who effectively brought to life how things may play out in the courtroom.
I intend to speak briefly in support of the Bill. I remember being groped on the underground aged 18. It was over in a moment, but the memory of the experience lives on. I remember feeling violated and exploited. I remember the anger, the shock and the feeling of powerlessness as the man who did it just melted away into the crowds in the station. I remember the feeling of absolute helplessness, but I think about how much worse it would have been had it happened now and involved a camera, and had there been footage that could have been shared, disseminated and sold on the extraordinary scale we have heard about.
Like other Members, I praise the hon. Member for Bath for her work and Gina Martin for her campaign, which has brought so much attention to this issue. I also praise the Minister, who has clearly listened and taken swift action.
I welcome the thoughtfulness in the Minister’s approach. She seeks a balance between effective action and clear penalties and not being too heavy-handed, particularly with young perpetrators of this offence. However, we still need to send a strong message to young people. We must bear in mind, for instance, the level of sexual harassment in schools, which I hear about particularly from sixth-formers. We have a generation who are growing up with phone cameras and, I am afraid to say, easy access to pornography online, and who face extraordinary sexual peer pressure on social media. Those things combine to create a toxic environment for young people.
In short, I welcome the Bill, both for its practical effect and for the message it sends about what is okay and what is not okay in our society.
Yasmin Qureshi
With the leave of the Committee, I wish to speak again. I thank right hon. and hon. Members who have spoken today, especially the right hon. Member for Basingstoke, who went into the detail of some issues that perhaps need to be looked at generically. So many offences can occur in so many different ways as a result of modern technology. As has been suggested, perhaps there should be a proper review of such offences.
The Opposition support the Bill completely, and will not propose any amendments. Others may table amendments, but that is a matter for individual Members of Parliament. Again, I thank all Members who spoke today. They raised some important issues, which we hope Ministers will look at as the Bill makes its way through Parliament. Hopefully the Minister will also be able to deal with some of the practical legal questions I raised earlier.
Lucy Frazer
With the leave of the Committee, I will answer a number of points that have been raised. First, the hon. Member for Bolton South East rightly mentioned some appropriate examples where there is a gap in the law. She mentioned that Scotland had acted more quickly. We must all remember that Scotland has different laws from us. The offence of outraging public decency, which has been available to some victims and under which some people have been successfully prosecuted here, is much narrower in Scotland so the gap was therefore significantly wider when they legislated.
The hon. Lady also suggested that there had been some delay in acting on our part. I am grateful for the intervention made by my hon. Friend the Member for Cheltenham, but I also draw the hon. Lady’s attention to the fact that the previous Lord Chancellor wrote to the Home Office and the Attorney General when these issues were raised. As a result, the Home Office has been working with the College of Policing to develop police guidance on existing powers, including those under the outraging public decency offence, to tackle some cases of upskirting. The Attorney General has also spoken with the Director of Public Prosecutions and the Crown Prosecution Service, making it clear that all cases involving upskirting need to be considered carefully.
The hon. Lady also asked about the two limbs. Charging decisions are matters for the CPS, which is very used to looking at the evidence to see what charge is most appropriate in the circumstances of the offence; the CPS will do the same here.
We had excellent speeches from my hon. Friend the Member for Cheltenham, who brought his experience of criminal law to identify the right balance on the decision about the sex offenders register, and from my hon. Friend the Member for Faversham and Mid Kent, who bravely described her experience when she was much younger.
Wera Hobhouse
We want the Act to be a deterrent, so that these vile practices are eradicated from our society. For that to happen, we just need some successful prosecutions. I think the debate is about how we can ensure that prosecutions are as tight and successful as possible. Then it will act as a deterrent and hopefully very few people will even go that way.
Lucy Frazer
The hon. Lady makes an important point. In fact, her campaign and that of Gina Martin have done a significant amount to ensure that this offence, and now its potential illegality, has been brought to the attention of individuals and that they know about it. Often it is the fear of prosecution rather than prosecution itself that protects potential victims of crime.
Before I turn to the wider issues raised in the debate, I will touch on some points that have been made by various Members about the remit and ambit of the Bill. We have thought very hard about how the Bill should be put together, what the motivation should be, and when people should go on the sex offenders register. Some Members thought that motive should disappear, because it is the act and the victims we should focus on, not the perpetrator. It has been suggested to me that we should not need to prove motive, but reasonable justification. The concern with that is that a general principle of our law, particularly our criminal law, is that someone is innocent until proven guilty. To suggest that the prosecution should not have to prove motive, only reasonable justification, would reverse the burden of proof, putting it on the defendant, who is meant to be innocent until proved by the prosecution to be guilty.
In our system of law, the prosecution has to prove every element of the offence, and we say that should remain the case for this offence, too. The offence is criminal and serious, and the punishment we are proposing is serious. It is two years, with the requirement that in some circumstances people will go on the sex offenders register. We think it is appropriate in these circumstances that, as with other offences under criminal law, motivation is identified and proved.
Some Members suggested we should take a wider role in relation to the sex offenders register. We are concerned that we should strike the right balance between protecting victims and, where there are young offenders, protecting offenders. We need to strike a balance in terms of stigmatising them and putting them on the sex offenders register. They might need to be identified to the police as potential criminals for future sexual offences. We should not just expand the sex offenders register. Ultimately, if there were too many people on it, that would make it meaningless.
Alex Chalk
On the point about considering proportionality, is it not important to remember that if those on the sex offenders register fail to comply with its conditions, they can be guilty of an imprisonable offence? To go on the register is a serious matter.
Lucy Frazer
My hon. Friend makes an important point. Going on the sex offenders register is a serious matter both with what it requires and if it is breached.
I want to touch on a number of points that my right hon. Friend the Member for Basingstoke made. She has done so much individually and through her Committee to champion a large number of issues and protect and help the lives of individuals, particularly women. Together with others, she has raised a number of issues that I would like to deal with. I reiterate that the Government continue to be alive to how new technologies are facilitating the degrading treatment of women and children on the internet, but we also need to be alive to the fact that some of the questions posed are difficult and not straightforward.
A question was asked about whether revenge porn should be a sexual offence, which would have two consequences: anonymity for the victim, and the perpetrator’s going on the sex offenders register. When the offence was first introduced, there was not universal support for it being a sexual offence. In informal consultations, victims did not universally ask for it to be a sexual offence. They often said that they just wanted images taken down. The Ministry of Justice took the views of more than 100 members of the public, many of whom had been victims of or knew victims of revenge porn. Very few suggested that they want it to be a sexual offence.
There are also unintended consequences and risks that would need to be considered. If we made such things a sexual offence, it would require notification. That gives rise to the point we are making about people being put on the sex offenders register when their intent was not sexual gratification, given all the consequences that come from being on the sex offenders register.
If we do not make these things a sexual offence, but instead just give anonymity to victims, we would be creating an inconsistency in the law. We would be extending automatic reporting restrictions—that is, putting people on the sex offenders register and giving people anonymity —to offences that are not sexual. How does that play out for other crimes where the same argument could be made that anonymity would be helpful for victims coming forward? For example, in cases of domestic violence, blackmail, or reckless transmission of HIV, more people might come forward if there was anonymity.
So, if we just say, “We’re creating an offence. We won’t make it a sex offence, because of the issue with the sex offenders register, but we will give you automatic anonymity”, the issue arises of whether we are making a special case of this offence, and whether the case should be the same for other offences that are also not sexual offences? Also, there can be reporting restrictions in any criminal case at the moment, even if someone does not have automatic anonymity.
The question of deepfake was raised. This is a real—
Mrs Miller
Before the Minister moves on, I just want to be really clear about something. Victims of upskirting will have anonymity, but she did not draw on the actions of the Government to give anonymity to victims of forced marriage or FGM. Why was it acceptable in those cases but not in the case of revenge pornography, for instance?
Lucy Frazer
My right hon. Friend makes an important point. The offence being considered today is a sex offence; it is an amendment to the voyeurism Act and is therefore a sex offence. She highlighted the FGM provision on anonymity. However, the point I am making is that we can create exceptions to a rule, but we must acknowledge that they are exceptions, and once we create one exception, or two, the general rule starts to break down and we have to ask ourselves more, and difficult, and complicated questions.
My point is that this is not a straightforward discrete decision. The Bill is discrete; it addresses a gap in the law that needs to be filled. Many other Members are raising interesting points, but those points are complicated —they are complex—and they have implications for other offences and other laws.
Alex Chalk
I am sure that it was just a slip of the tongue, but does my hon. and learned Friend agree that this Bill is in fact amending the Sexual Offences Act 2003, rather than the voyeurism Act, hence the point she was making about this offence being a sexual offence?
Lucy Frazer
I am always grateful for my learned junior’s assistance.
I will now move on to deepfake. Many Members have mentioned deepfake, which is a distressing act that can cause a victim to feel humiliated and can have significant consequences. Cases have been prosecuted in relation to deepfake. There is a case of a City worker who superimposed his colleague’s face on to porn websites and then told the woman’s boss in order to discredit her. He was convicted of harassment. Although there is not a specific offence in relation to deepfake, it is possible, if there is continued misconduct, for someone to be convicted under the law as it stands on harassment.
Other Members have mentioned the issue of sharing photographs and there are already—
Mrs Miller
My hon. and learned Friend says that an individual was convicted of harassment for superimposing a face on a pornographic image. I am not sure that she should be dissatisfied—I think she should be outraged and we should be doing something about it. This is not a problem in the future; it is a problem here and now. Should we not be acting?
The Chair
Before the Minister replies, I remind everyone that that is not the central topic of today’s debate, so, important though it might be, we should not devote too much time to remarks on that subject.
Lucy Frazer
Thank you, Ms Buck; I am very grateful. That is a key point that I want to reiterate: the Bill is about upskirting, where there is a clear gap in the law, and although there might be other serious issues whereby people feel victimised and humiliated, which we the Government take extremely seriously, there might be other offences—perhaps not specifically named appropriate offences for which one might be able to prosecute, but there are offences that exist—for which people can be prosecuted.
I was going to go on to the sharing of photographs, where there is some legislation, but given your point, Ms Buck, I will not go into that. I was also going to mention a few things, which my right hon. Friend the Member for Basingstoke quite rightly mentioned, about the importance of what we are doing in the non-legislative space. She was right to point out that DCMS is introducing compulsory religious education in primary schools, and sex and relationship education in secondary schools. The Government have provided £3 million for the Disrespect NoBody teenager relationship abuse campaign, which tries to educate teenagers about different types of abusive behaviour. As you have rightly mentioned, Ms Buck, this is not the time to go into the other issues.
The Government are supporting this Bill—I know it has cross-party support—because we want to fill a gap in the law. We are alive to how technology facilitates degrading acts, but we are determined here and now to get this Bill on to the statute book as quickly as possible. This has been an interesting and thought-provoking debate and I am grateful to everyone who has contributed. I think the consensus is that action should be taken to close this small but important gap in the law, so I commend the Bill to the Committee.
Question put and agreed to.
Resolved,
That the Committee recommends that the Voyeurism (Offences) (No. 2) Bill ought to be read a Second time.
Voyeurism (Offences) (No. 2) Bill (Second sitting)
Tuesday 10th July 2018
(5 years, 9 months ago)
Public Bill CommitteesRead Full debate Voyeurism (Offences) Act 2019 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 10 July 2018 - (10 Jul 2018)
The Chair
Good afternoon, ladies and gentlemen. We will follow the usual house-keeping arrangements. The shirt-sleeve order is in order. Will Members and anybody in the Public Gallery—who I cannot see because I am not allowed to—please make sure to switch their mobile phones off? We will now hear oral evidence from the Chair of the Women and Equalities Committee, the right hon. Member for Basingstoke (Mrs Miller). We have until 2.30 pm to ask questions. I thank you for joining us, Mrs Miller.
Jessica Morden (Newport East) (Lab)
Q
Mrs Miller: Thank you very much for allowing me to give evidence as we consider the Bill, Sir Roger. The amendments I propose, which have support from Members of every single political party, including some Members here, seek to do two things: first, to change the purposes mentioned in the Bill, and secondly, to introduce a new item to the Bill covering distribution.
Several people feel that the listed purposes are too tightly drawn. I have worked on the amendment with Professor Clare McGlynn, who is a professor of law at Durham University. It is her clear concern that recognising offences only if they are for the purposes of either sexual gratification or the humiliation of the victim would mean that a number of cases could never be tried. That is important, because the Government have made it clear from the start that the Bill is intended to close a loophole in the law. It does not do that as presently drafted. It will need to be more broadly drafted and not simply focus on those two different purposes.
The amendments have been drafted after my having looked at comments from people such as David Ormerod, a law commissioner who has clearly set out that “motive is irrelevant to liability” in criminal law. “Smith and Hogan’s Criminal Law”, which I understand is the bible on criminal law issues, sets out that motives form an element of an offence only in exceptional circumstances when it comes to criminal law. The example given in that book is of racially aggravated offences in which racism is an element.
In many ways the Bill is anomalous, inasmuch as it sets out purposes, whereas three quarters of offences in the Sexual Offences Act 2003, which, after all, the Bill amends, do not require one. The Minister asserted during the Second Reading Committee that the amendments would
“reverse the burden of proof”.—[Official Report, Second Reading Committee, 2 July 2018; c. 18.]
David Ormerod, a law commissioner, does not agree, hence my belief that the amendment should stand.
The second amendment relates to the distribution of material. Shortly after Scotland passed a similar law to outlaw upskirting, they realised that they had no way of stopping the distribution of those images. They had to pass a subsequent piece of legislation—the Abusive Behaviour and Sexual Harm (Scotland) Act 2016—so I found it quite surprising that the Government would bring forward the Bill based on the Scottish Act but not include the subsequent legislation on distribution.
To finish this final point—sorry my answer has been so long—at the moment the revenge pornography law, section 33 of the Criminal Justice and Courts Act 2015, would apply to stop the distribution of upskirting images only in cases where they would cause distress. It would not stop the distribution of those images in any other circumstances. There is clearly a loophole in the law around distribution. I believe that this amendment would close that loophole.
Alex Chalk (Cheltenham) (Con)
Q
“obtaining sexual gratification (whether for A or C)”—
in other words, for the taker or for a third party—or
“humiliating, alarming or distressing B.”
What are credible additional or alternative motives for someone taking a photograph up someone’s skirt?
Mrs Miller: Professor Clare McGlynn has set this out in evidence to the Committee, having looked at this issue since 2015 when she first thought there was an upskirting loophole that needed to be filled. I commend that evidence to the Committee as giving a full answer. She feels strongly that there are clear cases where it would not be easy to prove sexual gratification or humiliation as a motivation of the perpetrator. She gave two particular examples for posting images: for financial gain or simply having a bit of fun. The individual may not be recognisable, so humiliation would not be caused. If those images were then posted to a WhatsApp group, that would not be caught by this law.
Alex Chalk
Q
Mrs Miller: I think, Mr Chalk, there is a fundamental misunderstanding of the driver for these types of sexual harassment. Indeed, if I may refer to evidence given to my Select Committee by another Government Minister only last week, the Minister for Women said that the driver of sexual harassment is power, not sexual gratification. The overwhelming likelihood is that these pictures will not be taken for sexual gratification.
I am advised—unlike you, Mr Chalk, I am not a qualified lawyer—that proving sexual gratification is extremely difficult, and indeed the Government do not believe that sexual gratification is the main driver of the taking of these sorts of photographs. In answer to your second question on evidence, unfortunately I do not have the resources to look through Scottish law—
Alex Chalk
Q
Mrs Miller: What I would point to is the evidence I have just given around the law commissioner, David Ormerod, who has said that “motive is irrelevant to liability” in the criminal law, and the fact that three quarters of the laws in the Sexual Offences Act that we are amending have no such provision.
Alex Chalk
That is a separate issue.
Mrs Miller: What the Government have not done—if I may be so bold—is to say why this is a very different case. They do not seem to have any evidence to back that up.
Alex Chalk
Q
Mrs Miller: I cannot provide that example. What I can do is give you professional, expert opinion, including most recently that of Lord Pannick in the House of Lords, which says quite clearly that setting out the provisions, as currently drafted in the Bill, only to cover situations that are to do with sexual gratification and alarming and distressing victims, draws the piece of legislation too tightly. I have to say that I do not want to question the opinion of Lord Pannick.
Wera Hobhouse (Bath) (LD)
Q
Mrs Miller: I think that is, if I might say, Sir Roger, something that seems to be a point of disagreement with the Government and a number of people who have provided evidence to me—not only Professor Clare McGlynn, but Lord Pannick and the words of David Ormerod. They all suggest that removing the two provisions that narrow the purposes of the Bill would not at all reverse the burden of proof. In fact, in doing so, it would be brought more in line with three quarters of the sexual offences in the 2003 Act.
Rather than in some way perverting the law, which was my layman’s take on what the Minister said in the Second Reading Committee, the amendment would more likely bring this piece of law into line with other offences under the Sexual Offences Act. There is no requirement in criminal law to specify particular motives for criminal offences—only in exceptional circumstances. The Government have not said why this would be an exceptional circumstance.
Ross Thomson (Aberdeen South) (Con)
Q
In relation to the amendments and broadening the scope of the Bill, such as to look at distribution, as you said earlier, would it not be better for the Government to engage maybe with the Law Commission to produce a report and to make considered recommendations on the existing law and the need for reform in those areas, so that they can take proper time to consider how we tackle those issues? In the meantime, we can plug that gap that we know exists.
Mrs Miller: Thank you for your questions. I will pick up your words to take “proper time” over this. I think the Government should take proper time over the whole of the Bill. In potentially rushing it through, we could end up with a piece of legislation that is not doing what the Government set out for it to do, which is to close a loophole in the law.
Far from it, it could be putting in place a piece of legislation that exacerbates loopholes and gives perpetrators the opportunity to say, “Well, do you know what? I was only doing it for financial gain. I wasn’t doing it to harass the victim or for sexual gratification. I was simply doing it so that I could get 100 quid from an online site. I didn’t even know the name of the victim, so I couldn’t have been harassing them or humiliating them, and I certainly wasn’t getting sexual gratification from the images.” In rushing this through, for the best possible motives, we may end up with a piece of legislation that does not close that gap.
On amending the Bill to cover distribution, I say to Mr Thomson that following the introduction of the Scottish Act, a piece of catch-up work had to be done. As I mentioned, a piece of legislation had to be passed in 2016 to close the gap created by the fact that the original Act did not cover distribution. Perhaps I will point the Committee towards some further evidence here. The Bill is very much founded on what was put in place in Scotland in 2012. A lot has happened since then to the way the online world works and the way other countries deal with exactly the same problems with regard to images.
I am somewhat surprised that the Government do not want to look at precedents other than Scotland to get a better solution. For instance, why would the Government not want to look at what is happening in New South Wales, where a law was introduced that covers all intimate images that are taken and potentially distributed? Why would they not look at the Irish commission’s proposal, which again establishes a core offence and, rather than focusing only on upskirting, includes all intimate images that are distributed non-consensually? My question is: why Scotland? Why not try to do a proper job and look at what other countries have done far more recently?
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
Q
Mrs Miller: I would say that one very good aspect of the Bill is that it will make upskirting a sex offence, so, as the Minister set out clearly in the Second Reading Committee, there will be anonymity for victims. I am very clear that that—acknowledging that many image-based offences should be categorised as sex offences and therefore that victims should be afforded anonymity—is a move in the right direction.
At the risk of going into other areas—I know you would not want me to, Sir Roger—there are parallels to be drawn with revenge pornography, which was not deemed a sex offence despite the fact that it has a similar impact on victims, and for which there is no anonymity as a result. We know from work by organisations such as the BBC that one in three victims in cases where police want to press charges backs out. Many perhaps do so because of the lack of anonymity if cases are taken to court.
The Bill is a is a positive step, but Ms Saville Roberts alludes to the concern that, by rushing it through, we may reinforce the fact that not all intimate images are illegal and reinforce bad behaviour. She is absolutely right. What really concerns me is that perpetrators could easily plead that they were taking images not for sexual gratification, but anonymously for sale to a third party. That could actually give perpetrators a very big loophole to climb through. At the moment it is not so clear but, if the loophole is set out in law, some very clever barristers could make extremely good use of it.
Mary Robinson (Cheadle) (Con)
Q
Mrs Miller: This morning, listening to Assistant Commissioner Martin Hewitt, he was really saying, “If this is expanded any more, it leads to more to deal with in the legislation.” If anything, however, the amendments would make the life of the police a lot easier, because they would not have to prove sexual gratification, which I am told is extremely difficult to prove, nor would they have to prove that a victim was subject to humiliation or alarm and distress, which again are not always the easiest things to prove. What they have to prove is that a photograph was taken. I would have thought that that was much more straightforward in scope.
One issue that Members raised in the Second Reading Committee, and that the Minister has raised, is that the legislation might lead to more offences being caught because, potentially, it would capture more young people who are simply taking photographs in a way that might be seen more as jovial or as a bit of a laugh. I have to say that I have yet to meet any victim of this crime, of whatever age, who thinks it is a bit of a laugh. The impact on the victim is as great if it is done for that reason as if it is done for sexual gratification.
I also point out to the Committee that the Government already have dealing with young offenders well under control: Crown Prosecution Service guidance on the charging of young people with any offence is already in place. In particular, that was gone into in great detail when the Sexual Offences Act 2003 was discussed. The noble Lord Falconer discussed it then and it was clearly set out in CPS guidance that it was not Parliament’s intent to punish children unnecessarily or inappropriately. I therefore do not think that that will be quite the issue that has been drawn out in conversations about the Bill.
Yasmin Qureshi (Bolton South East) (Lab)
Q
Mrs Miller: First, I am very grateful for your comments about our Committee’s work. The Women and Equalities Committee is actively looking at this issue in our current inquiry into sexual harassment in the public realm. If Members are looking for evidence of the need for a law, please look at the evidence we had from the British Transport police, who told us very clearly that the lack of a specific sexual offence for upskirting causes them real issues. As I have said before, we have had evidence from Professor Clare McGlynn, who has been calling for a new law of this sort since 2015. Dr Matthew Hall and Professor Jeff Hearn have given us evidence about how technology has facilitated an explosion in crimes in public places and have gone into quite a lot of detail about the earnings that people have made from upskirting websites. Rape Crisis has commented on the lack of mention of sexual harassment in the Government strategy. So we have had quite a lot of evidence to suggest that this is important to do.
I have not looked in detail at Stella Creasy’s amendment, but I know that some concerns have been expressed about introducing a hierarchy within the Bill. I would just refer you again to Professor Clare McGlynn’s evidence on that. I would not really want to comment any further on it at this stage, if you will forgive me.
Yasmin Qureshi
Q
Mrs Miller: I think an inconsistency in the law is emerging here that the Government need to look at much more closely. Mention has rightly been made of revenge pornography. When that offence was introduced back in 2014, the need for it was questioned somewhat by the CPS. We now have 500 cases a year successfully prosecuted and hundreds more that are not successfully prosecuted, for the very reason that has just been set out—it is probably mostly because anonymity is not afforded there. But I think some broader inconsistencies are coming out as a result of this Bill. We have said we are delighted that the Government have seen this as a sex offence and so there will be, in the case of upskirting offences, anonymity, but as has been pointed out, why is there not anonymity for people who are victims of revenge pornography? It is not entirely clear on what basis that has been decided, other than the fact that revenge pornography was not made a sex offence—again, for reasons that are entirely unclear. I am sure the Committee is very aware that flashing in a mac is not only a sex offence but, if it was causing harm or distress—not sexual gratification—a notifiable offence, yet deep fake porn, where your head can be very easily put on to a pornographic image, moving or otherwise, is not a sex offence at all; it is simply harassment.
I think this is at best complex and at worst confusing, and the Government need to take a very long, hard look at it, because online offences and image abuses are as real and as dreadful for the victims as some of those abuses that are perpetrated in person.
The Chair
We are running out of time. We will take one very quick question from Helen Whately and then we have to draw this session to a close.
Helen Whately (Faversham and Mid Kent) (Con)
Q
Mrs Miller: You are asking me to speculate, Ms Whately. There is anecdotal evidence that the sharing of these images in WhatsApp groups can very readily be for “mate” reasons—group interest, perhaps a little bit of prowess.
Helen Whately
Q
Mrs Miller: In that case, it could well be sexual gratification, but why are we making the police’s life so hard because we want to capture only those people where we can prove beyond reasonable doubt—because it is a criminal charge—that this is for sexual gratification, when, frankly, taking a picture up your skirt, Ms Whately, would be as offensive to you, whether that person was seeking sexual gratification or whether they were simply doing it as a lark, so that they could put it on their WhatsApp group and share it with their mates. It is the same impact on you as a victim as it would be if they were getting sexual gratification or seeking to humiliate you.
We know from the police that, with many of these images, people do not know the victims and it would be impossible to prove humiliation. We know, again from the police, that trying to prove sexual gratification is far more difficult. Should we not try to look at this from the victim’s point of view, as three quarters of sexual offences already are, and simply set it out as a crime in its own right and stop being obsessed about why people do it?
The Chair
That, Mrs Miller, is a question we are going to have to leave in the air, because we have run out of time. Thank you for coming. We appreciate that you are an extremely busy lady. The Committee is indebted to you.
Mrs Miller: May I thank the Committee for allowing me to speak today?
Examination of Witness
Lisa Hallgarten gave evidence.
The Chair
We will now take oral evidence from Brook, which used to be known as the Brook Advisory Service. We have until 3 o’clock for this session. Please identify yourself for the record.
Lisa Hallgarten: I am Lisa Hallgarten, head of policy and public affairs at Brook.
The Chair
Thank you very much for coming, Ms Hallgarten. Who would like to open the batting? Or we could sit in stony silence for half an hour.
Ross Thomson
Q
Lisa Hallgarten: I am glad you asked that question. Our position is that we are very glad that upskirting is being taken seriously. I said in advance that I could not comment on the criminal justice aspects—I do not have a legal background. I can talk from the position of the young people we work with and the impact that this law might or might not have on them.
Much as we are delighted that upskirting is being taken very seriously, we do not necessarily believe that for young people a criminal justice approach is the best or the only way to tackle it. We recognise that the patterns for some of this behaviour are set as early as the early years of primary school. We think that educational approaches and whole-school approaches are needed to tackle the kind of gender stereotyping that underpins this, the lack of understanding of personal boundaries, issues around consent, issues around bodies, and how you talk to and report bullying and abuse. All those things are the beginning of this behaviour, and we need to tackle them through educational approaches.
We have some recommendations about how to do that, but we think it should begin in early years, right from the beginning of school, with teaching children about consent and how to understand the limits of other people’s ability to touch you, how to recognise when someone is bullying you and how to understand your right to say no to things. That is a very simple start and it needs to go from early years right through to the end of secondary school.
Some of this behaviour is seen to be “normal”. I spoke to our team of educators to find out what their take was on this, and they said that sometimes when they go to secondary schools and talk about some forms of sexual harassment, which might include upskirting, some of the girls say, “It’s just normal, isn’t it?” We need to nip that in the bud much earlier on and say that this cannot become normal, because if it does, there is no sense in which people can protect themselves against it. It is very important to us that this is not just about punishing the perpetrators, but about prevention.
Ross Thomson
Q
Lisa Hallgarten: I must admit, I cannot answer the second point because I do not have any direct evidence of the impact on individuals. On your first point, around consent, it is extremely worrying that people could get to the end of their school life without having fully understood sexual consent and what their rights to bodily autonomy are. However, it is not surprising when so many young people do not get an opportunity to learn about those things in school.
One of the things I would say is that we are very disappointed that the Government are taking so long to make a decision about whether personal, social and health education will be made statutory in school, and we are very disappointed at the one-year delay in mandatory relationships and sex education. These are the subject frameworks within which consent can be fully explored from the earliest years of school right up until the end of school. We feel like these subjects have always been marginalised. RSE and PSHE have always been the Cinderella subjects in school, and we feel they should be front and centre in terms of people’s personal development and prevention of crime.
Wera Hobhouse
Q
Lisa Hallgarten: In terms of having conversations with young people, the kind of nuance you are talking about is probably not going to have any traction either way. Knowing that something is illegal gives a strong message that it is wrong, but much more important than understanding that it is considered to be wrong is understanding why it is considered to be wrong. Talking about the distress it causes and the impact it has on its victims is probably as important as just saying something is wrong. We know that when you tell young people something is wrong, that does not necessarily seep through, as opposed to exploring with them what somebody might feel to be a victim of this. As for whether the law will be more or less effective depending on the wording of the clauses, I would think that that is probably not that relevant for young people.
My concern with the law would be whether it is clear that it can be implemented in a way that has some form of nuance. Some very good work was done by the UK Council for Child Internet Safety around sharing sexual images and an understanding that when young people share sexual images they have made, it has to be in the public interest for a prosecution to go ahead. My concern would be to have any Bill on this that unnecessarily criminalises a young person who does not fully understand why what they have done is wrong.
Mary Robinson
Q
Lisa Hallgarten: Brook is a young people’s sexual health charity. We currently have clinical services in 10 areas of England, and we deliver sex and relationships education in about 10% of schools in England. We also develop resources for teachers, so we cover areas all around young people’s sexual health and relationships. In terms of the increase in offences, we know from the Women and Equalities Committee report, “Sexual harassment and sexual violence in schools”, that there are incidents in schools at a very early age. Quite often they are not dealt with seriously, and schools feel slightly at a loss as to how to respond to incidents.
We would like to see clear guidance for schools on how to deal with what they may see as insignificant incidents at primary school and upwards. They may see these incidents as innocent, not necessarily because the incident is more serious than that, but because dealing with it in a serious structured way starts to give a message to children that it is not acceptable. There is a sense that if you do not deal with it early and do not give those messages strongly early, then those incidents are likely to become more serious.
Mary Robinson
Q
Lisa Hallgarten: Absolutely, and I should clarify that when I say that schools should be given clear guidance on how to deal with the issue, there are many ways of dealing with it that fall short of criminalisation. That is why I referred to the work done on sending and sharing sexual images: some good work was done on how to support schools in managing those incidents and treating them with the seriousness with which they deserve to be treated. We also need clarity about when it is and is not appropriate to report incidents to the police and, when they are reported, guidance that allows the police to use their discretion as to whether to bring a prosecution—it has to be in the public interest for them to do so.
I worry that if young people know that something is illegal, they are less likely to report it. If they think that a schoolmate will be criminalised, they will be less likely to report it. The research on sending sexual images showed that young people were scared if they appeared in the image—they were distressed about an image of themselves being shared—and they were distressed about reporting it, in case they would be criminalised. One of our messages would be that young people do not necessarily hear the nuance of messages, and we have to be careful about the message we give them, so that we do not deter them from seeking help around these issues.
Liz Saville Roberts
Q
Lisa Hallgarten: I wanted to avoid saying too much on what the Bill should look like as that is not my area of expertise. The aspect of upskirting that young people especially—for whom sharing images is normal and scary—would find most distressing is the fear that it would be shared. I do not know if that should be addressed through the law or through the guidance and work we do around it with young people, but that, more than anything else, would be their fear.
Liz Saville Roberts
Q
Lisa Hallgarten: That may well be true. With any law, you want to ensure that it is not counterproductive. If people are less likely to point their finger at a perpetrator or to report an incident because they think it is inappropriate for the person who did it to be potentially imprisoned, that is something I suppose you would want to take into account in creating law. Young people especially do not want to criminalise their peers. They do want this to be taken seriously, but that is not necessarily the same thing.
Gillian Keegan (Chichester) (Con)
Q
Lisa Hallgarten: I wonder whether it is the same to a victim, actually. Every incident is very particular. Some women would think, “That person is pathetic and sad,” and other people would feel really invaded and offended and harassed by the experience. For each woman it will be different. There is no perfect law that will address every victim’s experience of this.
I do not have the Bill in front of me, I am sorry to say, but I did not see anything about a prosecution being in the public interest. I know that in terms of sharing sexual images and the guidance to police on whether to prosecute, there is something about whether prosecution is in the public interest. For a lot of young people, it would not be in the public interest. It would be in the public interest to teach children not to behave that way in the first place. I am not sure whether the Bill is the place to address that, but certainly it needs to be addressed. Prosecution should not be automatic and it should be taken into account that a young person’s life could be ruined for something that was genuinely a spontaneous moment of stupidity. We would not want that to happen.
Andrew Jones (Harrogate and Knaresborough) (Con)
Q
Lisa Hallgarten: It is an interesting question whether law in itself is about education. I think people are glad that people are discussing this and taking it seriously, but I personally do not think having the law in and of itself is educational.
Andrew Jones
I wish it was as simple as, “We could pass a law and everything would change.” That would be marvellous. I think everybody who is involved in passing laws knows that that does not happen.
Lisa Hallgarten: I am not sure whether it needs to be broadened, although I am not an expert in what sexual offences already exist and what is not already covered by legislation. I am sorry I cannot be very helpful on that point.
Alex Chalk
Q
From your vantage point, what experience have you had in similar cases, such as revenge porn, of that discretion of individual police officers being exercised credibly and consistently around the country?
One of my concerns is that a police officer might go to a festival in Reading and decide that that 15-year-old is an idiot and deal with them by way of a caution, but a police officer in a different part of the country could say, “Absolutely not. You are going to be charged and potentially go inside.” Do you have any experience of whether discretion is operated properly and consistently in relation to young people?
Lisa Hallgarten: I do not have evidence of whether it is operated correctly and consistently. I do know that there is guidance on sending sexual images, which I keep referring back to because it is extremely helpful. There is something called Outcome 21 in the guidance:
“This means that even though a young person has broken the law and the police could provide evidence that they have done so, the police can record that they chose not to take further action as it was not in the public interest.”
Another part of that guidance says that
“schools and colleges can be confident that the police have discretion to respond appropriately in cases of youth produced sexual imagery”.
I do not know how well or how consistently the guidance is implemented and I cannot answer that.
Alex Chalk
Q
Lisa Hallgarten: I would agree and I would say that it is really important that people understand the point of the legislation. Whether that can be described through the wording of the legislation, I do not know.
Helen Whately
Q
Lisa Hallgarten: It is interesting that we are going from lots of schools not even excluding a child who has been proven to be involved in sexual bullying or harassment to moving to prosecution. It would be good to think about the different steps that are appropriate at different ages for a child and different kinds of offence.
There have been situations where young women who have been raped in school—a very serious sexual assault—have had to go to school when the same children are still in the school—the people who were guilty of the offences. It feels to me that there is a big gap between ignoring the offence and prosecuting the child. There must be some sensible steps that we could take.
None of this is to say that this law should or should not happen. I am not really commenting on whether the law should exist, but I think, long before a child is prosecuted, far more steps should be taken, and much earlier. It is very unlikely that somebody would go to a serious offence from nothing. It is very likely that a child who ends up taking photos, sharing sexual images or physically assaulting somebody will have done what we would consider to be more mild offences, which will not have been picked up or taken seriously.
I know that the Women and Equalities Committee report found that lots of cases were dismissed. Lots of complaints, mainly from girls, were very easily dismissed in their school and not taken seriously. You wonder whether those boys just did not get the message that it is completely unacceptable to behave like that.
The Chair
Are there any further questions? No. In that case, Ms Hallgarten, thank you very much indeed for affording the Committee the benefit of your experience and knowledge. We are grateful to you.
Ordered, That further consideration be now adjourned. —(Amanda Milling.)
Voyeurism (Offences) (No. 2) Bill (Third sitting)
Thursday 12th July 2018
(5 years, 9 months ago)
Public Bill CommitteesRead Full debate Voyeurism (Offences) Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 12 July 2018 - (12 Jul 2018)
The Chair
Before we begin, Members may remove their jackets if they wish. Can everyone please ensure that all electronic devices are switched off? Tea and coffee are not permitted.
The selection list, which shows the order of debates, is available in the room. However, I remind Members that decisions on amendments take place in the order in which they appear on the amendment paper. I will use my discretion to decide whether to allow a separate stand part debate on individual clauses following the debates on the relevant amendments.
Clause 1
Voyeurism: additional offences
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
I beg to move amendment 2, in clause 1, page 1, line 9, leave out
“, for a purpose mentioned in subsection (3),”.
This amendment is consequential to Amendment 1
The Chair
With this it will be convenient to discuss the following:
Amendment 3, in clause 1, page 2, line 1, leave out paragraph (c).
This amendment is consequential to Amendment 1
Amendment 1, in clause 1, page 2, line 6, leave out subsection (3) and insert—
“(3) It is a defence for a person (A) charged with an offence under this section to prove—
(a) in respect of an offence under subsection (1)—
(i) that operating the equipment was necessary for the purposes of preventing or detecting crime, or
(ii) that A did not operate the equipment with the intent of observing another person’s genitals, buttocks or underwear, and
(b) in respect of an offence under subsection (2)—
(i) that recording the image was necessary for the purposes of preventing or detecting crime, or
(ii) that A did not record the image with the intent of recording an image of another person’s genitals, buttocks or underwear.”
Liz Saville Roberts
Diolch yn fawr, Ms Buck. It is a pleasure to serve under your chairmanship.
Amendment 2, along with amendments 3 and 1, was tabled by the right hon. Member for Basingstoke (Mrs Miller) and has support from Members of every single political party in the House. The group of amendments seeks to change the purposes mentioned in the Bill to ensure that all upskirting is illegal, regardless of the motivation.
The common issue in all upskirting cases is that the victims did not know that a picture was taken, nor did they consent. The amendments seek to ensure that the Bill, which intends to close a loophole, does not enable another on the motivation of the perpetrator. That view is supported by the Director of Public Prosecutions; victims who presented evidence to the Committee, whose anonymity should be respected; the victims’ lead of the Association of Police and Crime Commissioners, Dame Vera Baird; and Victim Support, in the most recent written evidence presented to the Committee.
As we are amending the Sexual Offences Act 2003, consent should surely be considered, given the significance of establishing consent and the degree to which the complainant has capacity to give consent in other sexual crimes. Upskirting by its very nature is committed without the victim’s knowledge or consent. The Bill does not adequately cover financial motives such as selling to the media, as is common in celebrity upskirting shots. Public order offences might cover such situations, but if they can be covered by the Bill simply by changing the focus to consent, that should be done.
The Bill does not cover situations where the motivation to take a picture is group bonding or banter. In such situations, images are taken not always for sexual gratification or to distress the victim, but purely to have a laugh with friends. The amendments would cover that situation.
I beg the Committee’s leave to refer to the views presented by Alison Saunders, who notes:
“The Bill criminalises observation or recording without the complainant’s consent. Unlike other sexual offences, this offence is commonly committed without the complainant’s knowledge.”
She states that consideration must therefore be given
“to providing that the offence is committed where the complainant either does not know or consent.”
Alison Saunders notes concerns about the specific purposes for which the activities in question must be committed. She anticipates that most offending would fall within the specified categories, but warns that
“this is another element that the prosecution will need to prove. It is not inconceivable that suspects will advance the defence that this purpose is not made out beyond reasonable doubt and/or that they had another purpose, such as ‘high jinks’.”
Some of the evidence that has been presented to us—again, I respect the anonymity of the victims—lays out the range of defences people will put forward with success, which brings into question whether we should not be more cautious in our approach to purposes. Ms Saunders also notes
“Consideration could be given as to whether purpose is a necessary or relevant element of the offence (once it has been proved that the conduct is intentional, and given that it involves an affront to the integrity and dignity of the victim).”
The right hon. Member for Basingstoke set out many of those arguments in her oral evidence on Tuesday.
As this legislation is necessary, I do not intend to hold up the Committee or to press the amendments at this stage. I would, however, like to stress again that the point of legislation is to be fit for purpose and effective, not simply to exist. Nor should we be expected to revisit it within an unreasonably short period of time. I hope that the Government will give proper consideration to this issue, since I and many colleagues believe that the amendments are needed to ensure that the legislation protects victims, whatever the motive of the perpetrator. Legislation should be clear and consistent, and in the case of sexual offences it should be mindful of proportionality in the degree to which the onus is on the complainant to prove a motive for the defendant’s choice of action.
The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)
It is an honour and a privilege to serve under your chairmanship, Ms Buck.
I am grateful to the hon. Lady for providing an opportunity to discuss this important issue, and I appreciate the impact that this activity can have on the individuals affected. I am also grateful to my right hon. Friend the Member for Basingstoke; I know she spent much time considering the Bill, including giving up her time on Tuesday to give evidence to the Committee. I am grateful for the leadership she provides as Chair of the Women and Equalities Committee, and the powerful position she has taken on tackling ongoing challenges around sexual harassment.
The three amendments that were tabled by my right hon. Friend and have been moved today by the hon. Member for Dwyfor Meirionnydd would remove the element of purpose, so that upskirting is caught in all circumstances, save for when a defence is established. Those defences are outlined in amendment 1. We understand the objective of ensuring that the offences are wide enough to catch all those who should be criminalised for taking upskirting photographs, and we understand the hon. Lady’s motivation in moving the amendments. It is important to raise and consider these issues, and I am grateful for the opportunity to do so.
Before turning to the amendments, it might be helpful to explain why the Bill has been drafted as it has. The Bill seeks to rectify a gap in the law. That gap exists in relation to where the act takes place: it is possible to prosecute for upskirting in a private place or a public place, but possibly not in a place that is neither private nor public, such as a school. A school is not open to the general public, so it is not public, but it is open to many, so one could not expect privacy.
The Bill specifies two purposes for which an offence can be committed: to obtain sexual gratification or to humiliate, alarm or distress the victim. The reason these purposes are identified is not only that they are clear and appropriate, but that they use language that is familiar to criminal justice agencies. These motivations are used in current legislation. They are used, word for word, in Scotland. They are also familiar to the English system. That means that the Bill as drafted has precedent in law, and we know it will catch inappropriate wrongdoing.
I will deal with a few criticisms that have been made of the Bill’s breadth. It has been said that it will not catch all those who should be caught—for example journalists, as the hon. Lady mentioned—but if a person takes a photograph with the intention of uploading it to a website where others will look at it for sexual gratification, the uploader will be caught. It will not matter that the person who took the image is not obtaining sexual gratification themselves—for example, if they just want to get paid for the photograph. If they share it with another person with the intention that that person obtains sexual gratification, they will still be caught by the new offences.
Stella Creasy (Walthamstow) (Lab/Co-op)
Will the Minister talk us through how that would be proven? The concern for many of us is that by not taking out the differences of purpose for the actual offender, we will create a difficult investigatory chain. Will she explain how, if she keeps the requirements around purpose in the Bill, she would expect the police and courts to prove that third-party sexual gratification was part of the process?
Lucy Frazer
I was going to come on to those issues. Does the hon. Lady mind if I deal with them in a moment? I will deal with how motivation will be proven in a moment, but I will just finish the point about the breadth of the provisions.
A number of criticisms have been made; I have mentioned the one about journalists, but there are others. It has been said that the Bill will not catch those who carry out this activity for a laugh, but if the person knows that the laugh is for the purpose of humiliating the other person, they will be caught. As Assistant Commissioner Martin Hewitt said on Tuesday, it is hard to imagine any other reason for which someone would take an upskirt photo that could not be prosecuted under the new offences, as drafted. As Ryan Whelan said:
“There is no requirement that the prohibited motive be the only motive”.
The hon. Lady also referred to the Crown Prosecution Service, but it is important to point out that the CPS stated:
“We anticipate that most offending will fall comfortably within these categories.”
Lucy Frazer
I will deal with the hon. Lady’s point in a moment, after I have dealt with the one about proving sexual gratification.
Assistant Commissioner Hewitt acknowledged that sexual gratification already has to be proved under existing legislation—the Sexual Offences Act 2003—and that it is well understood by the police, prosecutors and the judiciary. He said that motivation can be assessed by interviewing the offender and through digital evidence, such as the website an image is uploaded to, and that it is then for the magistrate or the jury to decide whether there is a sexual purpose.
Lucy Frazer
I will take the intervention of the hon. Member for Walthamstow first.
Stella Creasy
For clarity, the Minister set out that if we were dealing with someone who had taken the photos not for their own sexual gratification but perhaps to make money from them, we would need to prove third-party sexual gratification. Will she explain how she expects that to be proven, as opposed to the sexual gratification of the original offender?
Lucy Frazer
I am happy to do so. Obviously, each case will depend on its own facts, but one can imagine a circumstance in which a journalist is taking photographs for money and that is his intention. However, he sells a photograph—he has taken it with the intention of selling it on—to a pornographic website on the internet. It would be difficult to suggest that that photo was being put up for any purpose other than for other people’s sexual gratification.
Wera Hobhouse
I would like to come back to the issue of having a laugh. I think we all intend the Bill to be victim-centred, but could there not be an instance where people were having a laugh for bonding reasons and there was no direct connection with the victim? People could share an image of someone they did not know and have a laugh about it because it was a fun image, but the victim would not be involved, so we would not be able to prove that it was done for the humiliation of that particular person.
Lucy Frazer
I refer back to the evidence of both the Assistant Commissioner and the CPS. The Assistant Commissioner was clear that he could not imagine a circumstance other than the two purposes that are set out. If people take a picture that they think is funny, but the obvious reason that it is funny is that they are humiliating someone or laughing at the humiliation, it does not really matter whether the victim knows about that humiliation. The person is taking the picture because it is humiliating and people laugh at the picture because it is humiliating.
Alex Chalk (Cheltenham) (Con)
Does the Minister agree that in this offence, as with so many offences, it is possible that there is a blend of motives? Even if the principal motivation is a laugh, the fact that there might be a subsidiary or subordinate motive that involves humiliating, alarming or distressing the victim would be enough in and of itself to make out the offence under the proposed formulation.
Lucy Frazer
Yes, my hon. Friend is right, and I am grateful to have his expertise in Committee as a criminal barrister who is used to prosecuting offences. There is no need to show a primary motivation; it just has to be a purpose, and there may be many purposes. Equally, that would apply to commercial gain.
Liz Saville Roberts
Does the Minister none the less share the concerns of the Director of Public Prosecutions about putting the onus on the prosecution? We are concerned about the effectiveness of this law because the complications implicit in having to tease out the different levels of motivation to find the one that we want, at a time when the police have limited resources and might not initially regard this as a serious crime, might just put too many hurdles in the way.
Lucy Frazer
People may have different views about that question. When activities are criminalised, it is right that the Crown Prosecution Service has the burden of proving the offence. We need to strike the right balance between victims and people who are accused of offences. Amendment 1 would reverse the burden of proof to the extent that it would rest on the defendant to show that they acted for a different purpose, and it is very limited, with only two reasons. It would put the burden of proving a defence on the defendant, but I see no issue with the fact that in our law it is for the CPS to prove its case and to prove that people should be criminalised for what is an extremely significant offence. It is wrong that people do this activity, but when they do it and they are criminalised for it, they will have a criminal record for a sex activity for which they could go to prison for two years.
Alex Chalk
I rise briefly to oppose the amendments, although I recognise that they have validity and force. I am not suggesting that they are misconceived, but, on balance, the Committee should vote against if necessary, and I will explain why.
The first point is one that has already been made. We should not lose sight of the fact that almost everyone who has spoken about these matters recognises that the overwhelming majority of offending would comfortably have been caught. Although a point has been made about the Director of Public Prosecutions, it is worth considering precisely what she said in paragraph 2.6 of her written evidence:
“The Bill introduces purposes for which such activities are committed. We anticipate that most offending will fall comfortably within these categories.”
That is important—it is worth underscoring the point—because while one can imagine some individuals in court saying, “This was just for fun, wasn’t it? We were having a good time and it was just larks,” or equally a journalist saying, “My motivation was to get money,” it is always open to the Crown to say that that was a subordinate motivation that comes within the scope of the Bill. Therefore, it will be vanishingly rare, I suggest, for any defendant credibly to argue—with emphasis on the word “credibly”—that no part of his or her motivation fell within the scope of the Bill.
It is also worth considering the representations that were made in a wider context. Ryan Whelan, the lawyer representing Gina Martin, said in written evidence:
“However, most if not all of these cases”—
referring to other suggested motives—
“can be caught by the Bill as it stands. There is no requirement that the prohibited motive be the only motive and the offender who acts to humiliate, distress or alarm the victim is not somehow given a defence because he does those things for financial gain, a laugh or to exert power.”
The point I want to make is that, often, in life and with respect to the Bill, people do stupid and illegal things for a blend of motives. It is no good them standing in court and saying, “My primary motive is not within the Act. Therefore, I should walk out of this court scot free,” because most juries would give that short shrift.
Stella Creasy
This is a very interesting conversation. The only person who has mentioned how consent might influence such a decision was the Minister, in a very narrow context. The hon. Gentleman’s comments are all about the offender. If this is a victim-centred Bill, it does not matter whether somebody was having a laugh or was sexually gratified. It matters whether the person whose photo was taken said, “Yes.” Where does that come in his hierarchy?
Alex Chalk
The hon. Lady is absolutely right. Ultimately, we are trying to prevent offending so that victims can get justice. One aspect of victims getting justice is ensuring that something is put on the statute book as quickly and efficiently as possible. The key evidence, if I may say so—the centre of effort that came from Gina Martin’s evidence—is that she wants to see this on the statute book. For it to mirror the situation in Scotland has an added advantage.
The second point, over and above the inconsistency, is about the sexual offenders register, which is critically important for this reason. If someone is put on the sexual offenders register, that is major deal, because if they act in breach of that they will go inside. It is absolutely right, by the way, that that happens. If somebody commits an offence such as this for a sexual motive, it is quite correct that they should go on the sexual offenders register. Indeed, the overall tenor of the evidence is that the Bill is right to draw a distinction between those who commit the offence to humiliate or degrade and those who commit it to achieve sexual gratification.
Alex Chalk
I will give way to the hon. Lady in a moment.
Most people recognise that only people in the latter category should go on the register. Let us imagine for a second that this amendment were carried. The defendant would say, “I’m not guilty of this crime. I want to have a trial, please.” He would go before a judge and jury and say, “My phone was operating by accident. I didn’t mean to do it,” and the jury would say, “Pull the other one. Guilty.” At that point, who would decide whether that person went on the sexual offenders register or not? The jury would not have been able to give any kind of verdict on the individual’s purpose when he took the photo. In other words, the judge might sit there and say, “I’ve no idea. It wasn’t really relevant to the offence. Am I, the judge, going to make the decision about what his motivation was?” How does that serve justice?
Liz Saville Roberts
I question the hon. Gentleman’s statement that the overwhelming tenor of the evidence is in favour of what he is arguing. What has been presented to us, particularly since yesterday, is quite strong, especially if we look at what both the victims lead for the Association of Police and Crime Commissioners and the Director of Public Prosecutions have said. In response to the balance of power in sexual offences, Dame Vera Baird QC, Northumbria’s police and crime commissioner, said:
“We do not regard a specific motive as the important characteristic of this behaviour. More important is that this behaviour is done without the consent of the person being photographed. Its impact is that it is a violation of her/him in an intimate way and is thus more closely related to rape and sexual abuse than might at first be considered. It appears to be based on the concerning notion that women’s bodies are public property over which any one has a right to take advantage, for any motive, if they can find a way of doing so.”
Alex Chalk
I absolutely accept that the purpose of consideration in Committee is to drill down on such matters and see how they would work in practice. No one should misread my representation on this; of course victims come first—that is why we are here and why the Government have moved so quickly to get the Bill on to the statute book. We recognise that there is a socking great hole in the law that needs to be filled. The question is how that can be done as effectively, efficiently and fairly as possible. Apart from anything else, if the view is taken in due course that we did not think about that in Committee, the people who will be most upset about that are the victims, who will think it bad law.
Wera Hobhouse
All of us here, and me in particular, recognise that it is important to get something on the statute book, and I am grateful that the Government have acted so quickly. At the same time, that should not be the overwhelming reason we cannot now consider amendments seriously and see whether we can create very good law. As has been said by my hon. Friend the Member for Dwyfor Meirionnydd, we should not have to come back in a year’s time because we have not really considered something enough and have created loopholes. There will be victims for whom justice is not done. Also, if I may say—
The Chair
Order. May I remind hon. Members that they are making interventions, not speeches, and that interventions are meant to be short?
Wera Hobhouse
Thank you, Ms Buck. On the campaigner’s evidence, it became quite clear when I questioned her that she had not considered how other victims would feel, apart from what she had experienced.
Alex Chalk
I congratulate the hon. Lady once again on the vigour with which she has pursued this important cause.
With enormous respect, I do not think that anyone has dealt with the issue of the sexual offenders register. If we accept that not everyone should automatically go on it, the key problem with the amendment is that it does not answer the question of how a court is supposed to decide.
At the moment, the prosecution will say, “You, Mr Bloggs, are charged on an indictment with upskirting pursuant to section 67A(3)(a)—that is to say, sexual gratification.” The jury will consider the evidence that a photo was sent to a pornographic site, or about where it was stored on the defendant’s computer, or about what was found at his home, or whatever it is. They will convict the defendant, and the judge will say, “We will put you on the sexual offenders register and give you a sentence of 18 months in prison,” or whatever it is—simple.
If the amendment were made, what on earth would the judge be supposed to do? All the jury need to find is that the defendant intentionally used his phone to upskirt, so they would reject his ludicrous defence that somehow the phone operated automatically, but the poor old judge would raise his hands and say, “What am I going to do now? I have to make a decision that will be incredibly significant for protecting the public, potentially, and in changing this man’s life,” as he might be an idiotic criminal with no previous convictions and lots of personal mitigation. The judge would say, “All right, I will put him on the sexual offenders register.” But should a jury not decide that? The only way they can sensibly decide that question is if the Bill allows them to. I am concerned that judges will ask, “What on earth has Parliament done here? It has not assisted us, as judges, to do justice in the cases before us.” For those reasons, I oppose the amendment.
Stella Creasy
It is a pleasure to serve under your chairwomanship, Ms Buck, this fine Thursday morning. I rise partly in response to the hon. Member for Cheltenham. I apologise for being unable to listen to the second set of evidence. The Committee will have to forgive me; I am afraid I had a rather unpleasant medical emergency. Members will be pleased to see that I am back on my feet and trying to respond.
The amendments matter because of a couple of concerns that I want to put on the record. I understand the case set out by the hon. Member for Cheltenham from his experience. Let us take it as a given that everybody on the Committee wants the legislation to pass and be as good as it can be. The challenge and the difference is about whether it will meet that second test. The amendments address a concern that many of us have and that, if I am honest, the hon. Gentleman set out very well in how he talked about the crime and how he believes, given his experience as a criminal barrister, the legislation would be enacted. He did not at any point, even when I prompted him, say that the courts would consider the fact that the victim said, “No, I didn’t consent to this.”
The concern about setting out specific motivations is that it takes the power away from the victim to be the one who defines what happened, and that it is wrong. When we start to include particular categories, we take the conversation away from whether a woman such as Gina Martin, or a man who had a camera put up his kilt, said, “No,” or, when they found out what had happened, said, “That was not something I consented to.” Instead, we start quibbling about the motivations of the perpetrator. We all want to ensure that victims come first in the law.
Alex Chalk
The hon. Lady is absolutely right that victims should be in charge of their own bodily integrity, and that includes whether they are upskirted or touched intimately. However, on either formulation—the Government’s or that in the amendment—that is taken as read. In other words, it is a key part of the offence that it has to be shown that the victim did not consent. Of course, if the victim says, “Oh yeah, absolutely—I’m perfectly happy,” that is taken as read. It is the same in the Government’s formulation and in the amendment.
Stella Creasy
I thank the hon. Gentleman for his intervention, but he and I disagree on that. By putting in notions about the motivation of the offence, we automatically start queering the conversation away from that very simple point—whether we can prove that the person consented—and we start saying, “Hang on a minute; was it about sexual gratification?” or, “Hang on a minute; can we prove it’s a third, or indeed a fourth, party?”
If only this was about pornographic websites. We live in a culture in which people will take such pictures and engage in that behaviour not just to humiliate, but to entertain. I am sure that the hon. Gentleman is a regular reader of Heat magazine, and magazines such as Closer. He will have seen such pictures being used to entertain. The risk of setting out the motivations is that we create loopholes and take the focus away from consent. He and I agree that consent should be the primary focus. Saying it is taken as read is not the same as making it the primary, defining factor.
The right hon. Member for Basingstoke has been brilliant about identifying some of the challenges. By removing these requirements, we take the focus back to the victim. I worry, and I suspect that other Committee members worry too, that there will be a case in which somebody says, “It wasn’t for sexual gratification; I was making money, but doing so to entertain.” That is the world we live in now. We have voyeurism for the sake of voyeurism. There is no sexual element to it; there is simply the pleasure of seeing somebody else in an awkward position. It is not necessarily about humiliation or distress. Again, setting bars for what has to be proved would create an environment that none of us want.
Alex Chalk
If an individual who said, “I’m selling it to Closer magazine,” turned up in court and said, “Do you know what? I had no idea that it might humiliate, alarm or distress the victim”, does the hon. Lady really think that he is likely to be believed by a jury?
Stella Creasy
We are going to come on to some of the broader questions underpinning the offence. The sad truth is that this is not the first time that people have tried to humiliate, and to humiliate mainly women. This is not the first time that there has been a sense of entitlement to see, to judge and to talk about the privacy of a woman’s body. Do I have confidence that there would be people on the jury who would think, “Well, fair play”? Sadly, that is the society that we live in and we are making legislation in that society. I wish I could be with the hon. Gentleman in having confidence that in the 21st century people would recognise that treating women as pieces of meat for their entertainment is no longer acceptable, but, sadly, both case law and modern society tell us that we still have a long way to go.
The risk for all of us is that we create a loophole in the legislation, where people quibble about whether it was entertaining or not, rather than ask the simple question: did she say yes? Did she say she was happy for it to happen, because it was something she was doing for her career, or whatever? I wager him that we would have a case where we would have that kind of discussion, and ask him to think what it would be like for the victim in that circumstance to have motivation pored over in court, rather than the simple question of whether she said yes or no.
We are not pushing these amendments to a vote today, but we have to recognise that there is a risk that there could be a loophole. There is a risk that we are sending a message from this place that our focus is going to be all about the ins and outs of motivation, rather than on saying that, in 2018, consent and equality are what matters in our legislation and we will introduce legislation accordingly.
Helen Whately (Faversham and Mid Kent) (Con)
I rise to speak briefly on the question of motive, which we are all clearly thinking about. Although there is widespread support for the Bill, this is an important question on the detail.
I certainly feel that the weight of evidence we heard was on the side of victims, and victims arguing that motive should not matter. If someone were a victim of upskirting, whatever the reason for doing it, it would still feel awfully humiliating and degrading for that person. We have heard the concern that someone might argue in defence that it was just for a laugh or high jinks. I do not think any of us believe that that is appropriate, because it would be deeply humiliating, but there is a concern that that might be argued as a defence—even though, as my hon. Friend the Member for Cheltenham, who has expertise in the area, has said, it would be highly unlikely that that would be permissible as a defence as the intention would clearly be to humiliate somebody.
The weight of evidence has been in support of the principle that motive should not matter. We should just think about the other side. Who would give evidence on the other side of the argument? There are lots of people who are standing up for victims, and we heard very compelling cases from people who have been victims, including a very powerful one that we have been asked not to quote from.
There was only one witness who gave the other side of the story very strongly. Lisa Hallgarten from Brook said:
“It is interesting that we are going from lots of schools not even excluding a child who has been proven to be involved in sexual bullying or harassment to moving to prosecution. It would be good to think about the different steps that are appropriate at different ages for a child and different kinds of offence.”––[Official Report, Voyeurism (Offences) (No.2) Public Bill Committee, 10 July 2018; c. 32, Q73.]
What she brought to light is that we are going from nought to 60 here. The Government are absolutely doing the right thing and I have huge respect for the hon. Member for Bath for pushing this—we must urgently plug this loophole in the law—but there is a question of proportionality and of making sure that we do not unintentionally criminalise people. Being a criminal would have such a huge impact on lives—I think about teenagers. As I say, it is totally inappropriate to do this for a laugh, and the level of sexual harassment and bullying in schools concerns me. The Minister mentioned that 10-year-olds and upwards may be criminalised by the Bill, so we must be mindful of the need to get the balance right.
Many of us have an instinct to be campaigners. We stand up for the women of the world and we want to put an end to such horrendous, degrading offences, which technology has made possible—the law has not necessarily kept up with technology—but in this room we are not so much campaigners as legislators. We must be conscious of the enormous power of Government, which has certainly struck me since I became a Member of Parliament, and ensure that our decisions are proportionate.
Liz Saville Roberts
Diolch yn fawr, Ms Buck. I shall seek the Committee’s leave to withdraw the amendment at this stage, but I will work with others to redraft and refine amendments, in discussion with Members in the other place, with the intention of tabling them on Report.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Liz Saville Roberts
I beg to move amendment 4, in clause 1, page 2, line 8, at end insert—
“(3A) It is an offence for a person (A) to disclose an image of another person (B) recorded during the commission of an offence under subsection (2) if the disclosure is made without B’s consent.
(3B) It is a defence for a person (A) charged with an offence under subsection (3A) to prove—
(a) that disclosure of the image was necessary for the purposes of preventing or detecting crime, or
(b) that A did not disclose the image with the intent of disclosing an image of another person’s genitals, buttocks or underwear.”
Again, amendment 4 was tabled by the right hon. Member for Basingstoke and is supported by Members from every party. It seeks to ensure that the sharing or distribution of upskirting images taken without the complainant’s consent is a criminal offence.
As we all know, the Bill is modelled on the equivalent Scottish legislation, which had to be supplemented, relatively soon after its introduction, by additional legislation to stop the distribution of images. That was necessary to make the original legislation effective. It therefore does not logically follow that the Government will bring forward part of what is necessary—measures to prevent sharing—to address this issue effectively.
As the right hon. Lady pointed out in evidence to the Committee, current legislation might stop the distribution of upskirting images, but only in cases where such images would cause distress. As we have already discussed, sharing an image on a group chat for the purpose of banter is not necessarily intended to cause distress, so it may well not be covered. The amendment would close that clear loophole.
Another potential loophole was raised by the Director of Public Prosecutions, who noted in her submission to the Committee that
“the Bill does not criminalise a person who is in possession of images which have been recorded”
without the consent of another person or people
“but where it cannot be shown that”
that individual was responsible for recording the images. For example, someone might have hundreds of such photographs on their computer or digital device or devices, but there might be no forensic evidence to reveal how they came to be taken. It should also be noted that there is no power of forfeiture over such images, so someone may have a really quite unpleasant collection but, unless those other pieces were in place, there would be nothing we could do about it. It could be claimed as a collection—a collection of women being distressed. We have not addressed that.
I also draw the Committee’s attention to the precedent set by existing law in relation to revenge porn. There may be an offence under section 33 of the Criminal Justice and Courts Act 2015 if it can be proved that the sharing of images was done with the direct intention of causing distress to the victim. As we know, that does not cover distribution motivated by finance, entertainment, amusement or indeed sexual gratification. That means that commonplace activities such as sharing among groups of friends are not covered. Once again, rather than acknowledging that distress is implicit in the objectification of women through this deliberately demeaning and humiliating act, we will place the onus on the complainant—the victim—and the prosecution to quantify distress.
Let me say in passing that I welcome the Law Commission’s ongoing review of online abuse. I took part in one of its consultations last night. On the basis of its recommendations, which are relevant to what we are discussing, I understand that the Department for Digital, Culture, Media and Sport intends to bring forward a White Paper on internet safety by the end of 2018. I look forward to the Minister’s response.
Lucy Frazer
I reiterate that the Government are introducing this Bill to protect victims. That is absolutely why we have sought to introduce this legislation swiftly.
The amendment seeks to create an additional offence of disclosing the upskirt image, where such an image is caught by the Bill. It would create two defences to this offence, which are the same as those created by the other amendments tabled by my right hon. Friend the Member for Basingstoke for the existing offences in the Bill.
I sympathise with the position of the hon. Member for Dwyfor Meirionnydd on forwarding and sharing upskirting images. I very much share the desire to ensure that victims are protected by the law from this distressing practice and to ensure that the law is sufficiently robust to address this issue. Upskirting is an inappropriate act that we all agree needs to be addressed.
The amendment raises an important question about the distribution of images, but this issue is not confined to upskirting. Sharing images and inappropriate material online is a significant issue; indeed, it is a wider problem than this specific offence.
As the hon. Lady mentioned, there is already good work under way across Government to consider these issues closely. As she said, DCMS has asked the Law Commission to look into the onward sharing of images as part of its review in relation to online abuse, and in May we published our response to the Green Paper on internet safety strategy.
Therefore, although the hon. Lady makes an important point, it seems both prudent and beneficial to be careful not to cut across the ongoing work. It would be better to wait until we know the outcome of these reviews so that we can consider them properly, in slower time, to decide what steps are necessary, if any, to take this matter forward. Tackling image sharing more widely is complex and requires detailed consideration and analysis.
Liz Saville Roberts
In that case, could the Minister indicate to me, given that there is now a sense of speed in moving forward with this piece of legislation, how she would incorporate anything that was recommended? Frankly, bearing in mind the experience in Scotland, we should be considering addressing this issue now, rather than holding back.
Lucy Frazer
The hon. Lady makes a good point. DCMS is looking at this issue. Its report will come forward in due course and then we will need to consider it—both its scope and whether there is anything else that needs to be considered. Sharing images is a wide issue and the Government are very aware that they need to consider new technologies, how they are affecting women and children, the issue of the distribution of images, and all the horrors, as well as benefits, that come with the internet.
We are concerned that using the Bill, which is moving at pace, to deal with this issue could result in unforeseen consequences. I will mention a few of those in the context of the amendment.
First, the amendment suggests that a person would be guilty if they received and shared an image even if they did not know that it had been taken without consent. Secondly, under the amendment, a person would also be liable if the image was passed on to them by email and they passed it on by email, social media or messenger app without opening it.
So, while we must of course consider carefully those who are victims, it is also important to point out that other laws and a number of other offences relate to this area, which will potentially catch perpetrators of this sort of crime. So, onward sharing is captured by the revenge porn offence, if it is done without consent and with the intention of causing distress to the victim.
There are also offences that might capture the distribution of such photos. The offence of improper use of a public electronic communications network is captured by section 127(1) of the Communications Act 2003, while section 1 of the Malicious Communications Act 1988 captures the sending of letters and other articles with intent to cause distress or anxiety. There are also harassment offences.
The sharing of images is not just a question for the criminal law; we also need to consider the responsibility of the platforms on which those images are shared. Victims need to know that such images will be taken down rapidly, and it is good to know that YouTube, Facebook and Twitter all have terms and conditions that state they will remove upskirting images when they identify them or are requested to do so by a user.
If someone takes an upskirt image and subsequently shares it, they will be fully punished for taking it, and any harm caused by the sharing of it would be taken into account in sentencing. The two-year maximum sentence for the new offence is a serious penalty that fully reflects the harm caused.
The offences in the Bill will tackle the taking of the photo. Existing offences already capture the misuse of communication networks, but, importantly, that issue is wider than the Bill can cover, and the Government are already looking at the broader issue of online abuse. In those circumstances, I urge that the amendment be withdrawn.
Liz Saville Roberts
Once again, I shall work with others to redraft and refine the amendment, in discussion with Members in the other place, with the intention of tabling it on Report. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Stella Creasy
I beg to move amendment 6, in clause 1, page 2, line 13, at end insert—
“(4A) Where a court is considering for the purposes of sentencing the seriousness of an offence under this section, and either or both of the facts in subsection (4B) are true, the court—
(a) must treat the fact mentioned in subsection (4B) as an aggravating factor (that is to say, a factor that increases the seriousness of an offence), and
(b) must state in open court that the offence is so aggravated.
(4B) The facts referred to in subsection (4A) are—
(a) if, at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim having (or being presumed to have) a particular sex characteristic, or
(b) if the offence is motivated (wholly or partly) by hostility towards persons of who share a particular sex characteristic based on them sharing that characteristic.
(4C) For the purposes of subsection (4B), ‘sex characteristic’ means the protected characteristic of sex in section 11 of the Equality Act 2010.”
This amendment ensures that if the crime is motivated by misogyny then that will be considered by a court as an aggravating factor when considering the seriousness of the crime for the purposes of sentencing.
The Chair
With this it will be convenient to discuss new clause 1—Requirement to amend guidance—
‘The Director of Public Prosecutions shall ensure, within six months of this Act coming into force, that any guidance issued under section 37A of the Police and Criminal Evidence Act 1984 is amended to ensure such guidance specifies information to be provided to the Director of Public Prosecutions to assist with—
(a) the prosecution of an offence under this Act, and
(b) the identification of any aggravating factor to an offence under this Act.”
This new clause requires the Director of Public Prosecutions to ensure that guidance provided to the police is amended to require the police to provide information to assist with the prosecution of the offences under this Bill or the identification of any aggravating factors.
Stella Creasy
These proposals reflect the context in which we are trying to make legislation. Our conversation proves some of the challenges that we face, and today the national police chiefs are discussing this very issue. It is a simple truth that this country’s law now protects nine different characteristics, under the Equality Act 2010. However, that protection does not extend within our courts. Therefore, not only is there limited redress when people want to take on offences such as upskirting, but we cannot reflect where somebody’s protected characteristic was part of the offence in understanding how we challenge that offence and the message that we send. Currently, when aggravating factors are dealt with in sentencing—which is what the amendments relate to—there is a gap, which means protection is not offered in relation to somebody’s sex, although we offer that protection around somebody’s sexuality, racial background or religious background.
There is a simple, obvious conversation that we might have, which is, “Has somebody done this because, actually, they hate women and believe they have an entitlement to women? They believe that women are second-class citizens and that, therefore, it is their right to use film of them for entertainment.” That is not a new conversation in our society. Upskirting, and therefore the need for the Bill, reflects the fact that everyone now has a mobile phone in their pocket, but humiliating women, targeting women and treating women as pieces of meat for entertainment is a very old facet of our society.
These proposals recognise that if—superficially—we are legislating to deal with the symptoms of that attitude, we need to deal with the primary source. It is time, in 2018, for parity in the way we treat those protected characteristics—not just in the workplace, but in our court houses.
The proposals are about what we can do to tackle the cause of those problems and the fact that one woman in five in our society says she has been sexually harassed, and that upskirting is part of that. They build on the evidence we have from Nottingham that where misogyny is treated as a hate crime—that includes instances of upskirting—that has started to change the experience of victims when they report these crimes, and indeed the mindset of the police and the CPS in dealing with them.
That goes back to the question that the hon. Member for Cheltenham asked me. He seemed surprised that I would query that experience, but the honest truth is that for most women the experience of trying to report sexual harassment and of trying to say, “My body is not here to entertain you; it is here for me,” is very hard. Day in, day out, women in this country face a barrage of harassment and abuse, and upskirting is just one element of that.
Our legislation and our way of dealing with those crimes have not moved with recognising the cause, so we treat the symptoms. We come up with individual offences. We do not send the message that the issue is equality under the law. While we have the protections in the Equality Act, which are mirrored in amendment 6, they do not make a difference in court.
Some people will tell us, and I want to be clear that this is about sentencing when somebody has been proven to have done such a thing, that the courts could take account of them, but if somebody is targeting women—it does not have to be ethnic minority women, because then we could use the racially aggravated offence—we need to say that that is unacceptable in 2018.
In the same way, women who try to report harassment or upskirting have faced an uphill battle with the police, and that has come across in the evidence. We do not yet see hate against women as something that we have to say is on a par with racial hate and religious hate, so when women come forward to report such crimes, very often they get dismissed. Indeed, in some of the testimony, people talked about the police saying, “I’ll just delete it. It’s not that big a deal.” I can tell the Committee it is a big deal while we live in a society where we do not treat women and men equally, and we do not treat them equally under the law.
I hope that, today, the national police chiefs will look at the evidence from Nottingham and recognise that recording street harassment, including upskirting, as a form of hate crime and using that to drive how they identify where it happens, whether there are particular times that it happens and what that means for their policing priorities, will lead to a step change—not just as we have seen in Nottingham, but in every city, in every community. I am sure Members have all heard the stories about this happening.
I tabled these proposals to reflect the fact that this should happen after somebody has been found guilty. I recognised in the earlier amendments that the concept of consent should be the primary motivation as to whether somebody is found guilty of upskirting, and I also recognise the issue is not just about upskirting, but this is the legislation in front of us. As I have explained to the Minister, my purpose in tabling these proposals is to push these votes because we get so few opportunities to try to make legislation that really gets to the root cause of the problem. My fear is that even if we tackle upskirting, and even if new technology is created, the causes remain. The harassment, the inequality and the violence that women then face as a result will continue.
These proposals would do two things. First and foremost, they would put on par the ability of courts to take into account where there was evidence of hostility towards somebody as a result of their sex-protected characteristic. That is the legislation from the Equality Act. It is simply about equality. For Members who are not necessarily convinced on the argument about misogyny, this is simply about parity.
The new clause would encourage the police to do what I hope they will do today voluntarily: start collecting evidence for the purposes of being able to prosecute. The hon. Member for Cheltenham might argue that the courts might well be able to take into account harassment, but they cannot if there is no evidence and if the police have not built up a profile of, for example, the Dapper Laughs character—the person who has taken photos and encouraged people to take photos of women in compromising positions, not because they particularly find that sexually appealing, but because it is simply funny for them.
Why is that funny? Because it is about power. It is actually about the power to control and define what is important about that person by taking that photo. By taking away their mind, their voice or whatever they might say, and making it simply about their body, it is a power play and not sexual. But we would have no evidence for that because at the moment we do not systematically record this to enable us to say that that has been a particular offence.
I appreciate this element is new, and I understand people’s concerns about whether we should get into it in this Bill, but I say to the Minister that we have not had any opportunities and these debates have been around for some time. If she were to say to, “We are going to review this, because there is an anomaly here where we protect characteristics in other parts of legislation, but we do not protect characteristics in the court,” I would happily work with her and go away and look at this. I recognise these proposals might not be the right way to address the problem, but we cannot avoid this debate and this inequality any more, because it is upskirting this week, but it will be something else next week.
Misogyny is pervasive in our society and I would wager it is on the rise, because we live in a society where people think somehow we have equality. Every time I say that, all the men in the room look quizzical and all the woman roll their eyes, because we know how much further we have to go. These proposals highlight a simple point about this legislation, which is that it fits a symptom of a bigger challenge, and if we can target the bigger challenge, we can make real progress.
One of the frustrations for me as a Back Bencher is how few opportunities we get to make any real progress on issues such as this, so I am interested to hear what the Minister has to say. Has the Ministry of Justice been looking at these issues and the evidence from Nottingham on how treating misogyny as a hate crime has driven change in how issues such as upskirting are dealt with?
I am really interested to hear what the Minister thinks we can do, if we do not accept these proposals, to make it explicit that, if somebody targets women in this way and shows that hostility, the courts should be able to take that into consideration. There should be a requirement to have the evidence to be able to make that case.
Yasmin Qureshi (Bolton South East) (Lab)
It is a pleasure to serve under your chairmanship, Ms Buck.
Labour’s Justice team has worked closely with Gina Martin and her lawyer, Ryan Whelan, since last year. They have done a remarkable job in attracting public and media support, gaining nearly 100,000 signatures for their petition, and then getting the issue on to the parliamentary, and now the Government’s, legislative agenda.
Under great pressure, the Government have been forced to expedite this legislation to outlaw this disgusting practice, using unusual parliamentary procedures usually reserved for when there is a broad consensus on uncontroversial legislation. In normal circumstances, the Opposition would support some of the amendments. However, given that the campaigners seek a broad consensus, it is not our position to support the amendments on this occasion, as we do not want to create an excuse for the Government to delay the legislation, including during its passage through the Lords.
I understand why my hon. Friend the Member for Walthamstow tabled her amendment, but she will be aware that the sentencing guidelines allow judges to consider misogyny when sentencing. However, it is obviously not a specific aggravating feature, as race is. We really need the Government to bring in, on a separate occasion, a domestic violence Bill or a victims of abuse Bill, during the deliberations of which these matters could be considered. My hon. Friend would have our full support on that occasion.
Lucy Frazer
The hon. Member for Walthamstow has campaigned hard on a number of issues, including this one. I am grateful to her for her interesting and thoughtful speech and for giving us the opportunity to discuss these issues.
Upskirting is a terrible crime and an horrific invasion of privacy for those affected, and it is right that offenders are appropriately punished. Creating a specific upskirting offence sends a clear message to potential perpetrators that such behaviour is serious and will not be tolerated. The offence carries a maximum sentence of two years’ imprisonment, which is a serious penalty. It is in line with the sentence for racially aggravated assault, assaulting a police constable while resisting arrest and other sexual offences, such as voyeurism and exposure. Additionally, the Bill will ensure that the most serious sexual offenders are subject to notification requirements, having been put on the sex offenders register. Those are common with sexual offences and assist the police with the management of sex offenders in the community.
Statutory aggravating factors do not usually apply to just one or two offences, as would be the effect of the amendment. Judges already take into account, on a factual basis in sentencing, the circumstances of the case. Creating an additional aggravating factor for this new offence would make it inconsistent with all other sexual offences. There is no rationale for the amendment to apply specifically to this offence alone.
Similarly, it would be wrong to suggest that patterns of offending would not be considered in sentencing. For example, if in addition to taking a photo the offender went on to share it with others, the additional harm caused would be taken into account in sentencing. If the offender took hundreds of images of women, rather than just one, the additional harm or potential harm caused would be linked directly to the seriousness of the offence and would be taken into account in sentencing. If the offender has been convicted of a similar or the same offence previously, or if a prior offence indicated intent or aggression on the basis of gender, it must be considered by the judge in determining the appropriate sentence.
In addition, the independent Sentencing Council already publishes guidelines, setting out the factors that magistrates and judges should consider in determining the seriousness of offending and the harm caused for the purposes of sentencing. An updated version of the guidelines is currently the subject of a public consultation.
Stella Creasy
Will the Minister talk us through the message she thinks we are sending? We have religiously and racially aggravated offences where we specifically say—not for individual cases, but as a matter of course—that it is a challenge where someone is motivated by hostility around someone’s race or religion. What message does she think that sends, and why does she not think we should send the same message about someone who is motivated by hostility towards a certain sex?
Lucy Frazer
The hon. Lady raises an interesting and broad issue. It is a conversation that we need to have and that it is good to have, but the question before us today is the legislation and the appropriateness of the measures we are putting forward in this Bill, which is about upskirting. It is a narrow issue. I recognise her frustration and desire to raise the issues she cares about in a broad sense in a narrow Bill, but as my hon. Friend the Member for Faversham and Mid Kent said earlier, as legislators—the Government, the Opposition and Parliament—we have an obligation to ensure that the legislation we are putting forward, debating and voting on is appropriate.
Alex Chalk
Although I have a significant amount of sympathy for the points made by the hon. Member for Walthamstow, is the point not that the law would be made to look extremely foolish if sex was a statutory aggravating factor in respect of an offence of upskirting, but not in respect of rape or sexual assault? In those circumstances, the inconsistency would bring the law into disrepute. Does the Minister agree?
Lucy Frazer
That is a good point to make, as my hon. Friend’s points generally are. When we legislate, it is important that we do so with care. We should legislate when we have done a proper review of the issues we are legislating on and bring in appropriate measures within the confines of the Bill under discussion.
Stella Creasy
I do not disagree with the Minister. I believe that misogyny as an aggravating factor could be ascribed to a number of offences. If she will forgive me, I will not take lessons from her about legislating. As an Opposition MP, it is not within my gift to timetable the legislation to be able to deal with these things. She said it is an interesting conversation, but will she commit to reviewing the anomaly we are pointing out with the amendments? Right now, we do not protect sex in the same way that we protect race and religion within sentencing. Through that review, the points that the hon. Member for Cheltenham and I are making could be addressed. Will she at least commit to that review? It would be welcome.
Lucy Frazer
The hon. Lady says she is a Back-Bench MP and so does not have the power or ability to change laws, but let us remember how this legislation came before the House. It was a private Member’s Bill brought forward by a Back-Bench MP. The Government have supported the Bill because it is the right Bill to take forward. It identifies a gap in the law, and we are bringing it forward.
I would also like to touch on the statutory guidance referred to in the hon. Lady’s new clause. It is important to ensure that the legislation is applied effectively by police and prosecutors so that this behaviour is tackled robustly and consistently. I should point out that we already have that in train. Following a request from the previous Lord Chancellor to the then Home Secretary and then Attorney General, work is under way to develop and update the guidance on upskirting, without the need for legislation to command us to do so.
We are committed to working together across the Government to ensure that the new offences and the existing law are used effectively to tackle upskirting. The Home Office is working with the College of Policing to develop police guidance on the powers that currently exist to tackle some cases of upskirting, including outraging public decency. The guidance will be further updated to capture the proposed changes to the law in the Bill. The guidance will be aimed at all frontline officers, control room staff and investigators and will be created in consultation with the National Police Chiefs’ Council and the CPS.
The previous Attorney General discussed this issue with the DPP, and they are clear that all cases involving upskirting need to be considered carefully. The CPS will ensure that guidance is updated to reflect the proposed new offences, as well as to raise awareness of existing offences.
Stella Creasy
I am going to push the Minister on the point about a review. It is wonderful to see a Back-Bench private Member’s Bill get Government attention. All of us recognise the circumstances in which that was made an imperative, but the reality is that the Government set the timetable for dealing with these issues. If she is serious that these are issues that the Home Office is updating guidance on, and that people are starting to look at this anomaly around misogyny versus other forms of hate crime, will she commit to a review? Will she commit to going away with her assistants and looking at these issues, and asking whether there is a case for change, such that she might bring forward legislation herself? Otherwise, these are warm words and, as the suffragettes taught us, it is deeds, not words, that matter.
Lucy Frazer
Just to clarify, the guidance I was talking about is the guidance in relation to upskirting—that is what is being updated. The Government always keep matters under review. We keep criminal law under review. I am sure that the Home Office, where matters affect it, also keeps issues under review. While I recognise the intent behind the amendments, I ask the hon. Lady not to press them.
Stella Creasy
It is interesting whether people put their money where their mouth is, and how we recognise when we can make progress. Too often, especially when it comes to women’s issues, the question is to do it at some other time. I am sorry to hear the Minister not committing to a review. I would happily have worked with her on that review and the evidence. I fear that the police chiefs will be ahead of her in committing to make the recording of misogyny as a hate crime something that the police do, which would be very welcome. I am also sorry that Labour Front Benchers are not with us on the importance of making progress where we can.
I have no desire to split people on this, but I think there is support for it. I put the Minister on notice, however, that it will come back on Report. I also tell my Front Benchers that it will come back on Report, and I hope that they will be more positive.
The other thing I am worried about is that on a Bill about controlling women, it appears that some people have been told that amendments in Committee delay things. That is clearly not the case and we would not want to send a message that we are trying to deal with the symptoms, rather than the cause—which is what misogyny is—and that we are going to control women and restrict what they can change. It took 100 years for some women to get the vote. Let us not wait 100 years to make legislation that works for women. At this point, however, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chair
We have already had a thorough and very good debate on clause 1, so I am not inclined to have a stand part debate unless hon. Members are actively seeking one, which I do not believe they are.
Clause 1 ordered to stand part of the Bill.
Clause 2 ordered to stand part of the Bill.
Bill to be reported, without amendment.
Voyeurism (Offences) (No. 2) Bill
Wednesday 5th September 2018
(5 years, 7 months ago)
Commons ChamberRead Full debate Voyeurism (Offences) Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 5 September 2018 - (5 Sep 2018)
Stella Creasy (Walthamstow) (Lab/Co-op)
I beg to move, That the clause be read a Second time.
Mr Deputy Speaker (Sir Lindsay Hoyle)
With this it will be convenient to discuss the following:
Amendment 1, in clause 1, page 1, line 9, leave out
“for a purpose mentioned in subsection (3))”.
Amendment 2, page 2, line 1, leave out paragraph (c).
Amendment 3, page 2, line 6, leave out subsection (3).
As drafted the Bill potentially does not outlaw “upskirting” in certain cases such as for purely financial motives; or where the motivation is “group bonding” where the identity of the victim is irrelevant. This amendment makes all “upskirting” an offence.
Amendment 5, page 2, line 8, at end insert—
“(3A) It is an offence for a person (A) to disclose an image of another person (B) recorded during the commission of an offence under subsection (2) if the disclosure is made without B’s consent.
(3B) It is a defence for a person (A) charged with an offence under subsection (3A) to prove—
(a) that disclosure of the image was necessary for the purposes of preventing or detecting crime, or
(b) that A did not disclose the image with the intent of disclosing an image of another person’s genitals, buttocks or underwear.”
As the Bill is currently drafted it would be an offence to take an upskirting picture but not necessarily an offence for it to be distributed (existing “intimate image” legislation does not outlaw the distribution in all cases). This amendment makes it an offence to distribute non-consensual “upskirting” images.
Amendment 7, page 2, line 13, at end insert—
“(4A) Where a court is considering for the purposes of sentencing the seriousness of an offence under this section, and either or both of the facts in subsection (4B) are true, the court—
(a) must treat any fact mentioned in subsection (4B) as an aggravating factor (that is to say, a factor that increases the seriousness of an offence), and
(b) must state in open court that the offence is so aggravated.
(4B) The facts referred to in subsection (4A) are that—
(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on the victim having (or being presumed to have) a particular sex characteristic, or
(b) the offence was motivated (wholly or partly) by hostility towards persons of who share a particular sex characteristic, based on them sharing that characteristic.
(4C) For the purposes of subsection (4B), “sex characteristic” means the protected characteristic of sex in section 11 of the Equality Act 2010.
(4D) The Secretary of State shall, within twelve months of Royal Assent being given to this Act, request that the Law Commission review the provisions of subsections (4A) to (4C).”
This amendment ensures that if the crime is motivated by misogyny then that will be considered by a court as an aggravating factor when considering the seriousness of the crime for the purposes of sentencing.
Amendment 4, page 2, line 27, leave out
“mentioned in section 67A(3)(a) (sexual gratification)” and insert “of obtaining sexual gratification”.
Amendment 6, page 2, line 29, leave out from “the” to end of line 40 and insert
“offender was aged 18 years or older at the time of the offence”.
This amendment makes the offence notifiable in all cases when the offence is committed by a person aged 18 or over and for sexual gratification.
Stella Creasy
I want to put on record my tremendous respect for the very hard work done by Gina Martin to get this legislation before Parliament and by the hon. Member for Bath (Wera Hobhouse). It is a testament to the power of a good argument whose time has come. All these women are right that we should not wait around for this legislation, but we should make sure that it works.
I also want to put on record my support for the work that the right hon. Member for Basingstoke (Mrs Miller) has done, and for her amendments and the case she is making. I will be voting for the Bill and supporting it wholeheartedly, but I will also be supporting all efforts to improve it, because I do not believe that those two things are incompatible. We should never let the perfect be the enemy of the good. We should recognise that legislation with holes in it will inevitably return to us. It is in that spirit that I have tabled my new clause and amendment, which are about the context in which this crime takes place, and I am proud to see the support for them from across the House.
Let me be very clear that treating misogyny as something we should tackle is not about flirting. It is not about banter. It is not about telling all men that they are rapists. It is not even about new crimes. We cannot apply a hate crime tariff to something that is not already a hate crime. It is about something that has become so widespread that we treat it as a fact of life—but only for 51% of our population.
Across the UK, a huge majority—85%—of young women and nearly half of all women report experiencing sexual harassment in public places. Only one in 10 of them have ever reported receiving help after such incidents. Without recognising the role of misogyny in the day-to-day experiences of women in our society, our legal and criminal justice system masks the true extent of the hostility that exists against gender. This is not about criminalising wolf-whistling or flirting. It is about recognising existing crimes that are motivated by hostility towards somebody because of their gender, as well as recognising what they are—hate crimes.
Although women have protection in their workplaces under equality legislation, as soon as they step out of the door on to our streets, they are not protected. If somebody targets people on the basis of their faith or religion, they can receive a tougher sentence for their behaviour under the Criminal Justice Act 2003. Somebody who repeatedly targets women in the same way faces no such comparable sanction.
I hope that we all agree that our young women deserve better. It is particularly our young women who are reporting this as part and parcel of everyday life. One thousand women aged 14 to 21 were asked by Plan International about their experiences in public settings, whether on transport, walking on the street, just going to school or even going to work, with 66% saying they experienced unwanted sexual attention or sexual or physical contact in a public place. Some 40% said that they experienced verbal harassment and 15% said they had been touched, groped or grabbed at least once a month.
What does that mean in practice? It means the experiences of my own constituents, whom I asked about this issue. One woman was followed down the road by a man in a car demanding that she get in. She was then told that he was pranking her when she complained and called a racist for refusing to go with him. A mother wrote to me about her young daughter. Only last week, somebody had come up to her in a tube station, put his face right up in hers and shouted, “Sexy bitch, ” very aggressively. She had been sitting on a bus as men played videos of men masturbating, showing the phones to her to make sure she had seen them. As the mother said:
“This is not about trying to chat someone up—it’s a power play, exerting control and making women feel frightened and unsafe in their own streets.”
Girls and women are nervous about retaliation and worried about what might happen if they fight back. Women say that it is not about whether they are attractive, because violence is never far behind if they reject these advances.
This is about what makes a hate crime. It is not pleasant and funny; it is a way of keeping women and girls feeling on edge all the time and unable to move freely in their own areas. As the mother said, her children walk around “heads down, headphones in”, tensely and purposely avoiding eye contact or hassle from men. That is harassment—it is legally harassment. The women have said no, yet these men still persist. All of us worry what a man who behaves like that might go on to do if his behaviour is not addressed.
It is really important for us to be very clear that we are not talking about all men. Most men in this country do not behave like that towards women, and would be horrified to see that kind of behaviour happening to their mothers, daughters, wives, sisters or friends. In proposing my amendments, I want to defend the reputation of the men of this country. This is not about their behaviour; it is about some men’s behaviour—enough men’s behaviour to make women’s lives difficult, and enough men’s behaviour to mean that women experience hatred.
Anna Soubry (Broxtowe) (Con)
I am listening with great care, as ever, to the case that the hon. Lady is making, and I have some sympathy with it. My problem—will she help me with this?—is that I will be really troubled if we see all this offending as offences of hate against women, because much of it is genuinely in the category of sexual offending, which is often a deeper problem that must absolutely be stopped, prosecuted and so on, and sometimes it is harassment. I do not support the hon. Lady’s amendments; I think that we need to know more about this. Although my own view is that this absolutely needs to go to the Law Commission, I do not care where it goes, but it needs proper and full exploration so that we get this right. I am sure that she is right that some of the behaviour is misogynistic, but not all of it is.
Stella Creasy
As ever, I agree with much of what the right hon. Lady says. I think we need to say that the bigger thing she is talking about is misogyny. There are men out there who are hostile towards women and act accordingly. As a result, 51% of our population experiences harassment and a particular type of crime. At the moment, we cannot name, recognise and differentiate it, and therefore say, as we do with racially or religiously targeted hatred, that there is a premium on it. That is what the amendments would achieve.
This is also about what drives police behaviour, because if something is a crime, the evidence about it of course needs to be gathered. I have to admit to my honest frustration, as the first female MP for Walthamstow, where a number of people have tried to report their experience. Let me give the Minister some examples of the things we are talking about—the responses the women I have mentioned got back when they reported these crimes. In particular, in response to the woman followed down the street by a man demanding that she get into his car and threatening her with his behaviour when she tried to say no, the police said that the
“behaviour is only threatening, abusive, or insulting if the person…intended it to be so, or if he was aware…that it was so. The comments about his believing it to be a prank and being blown out of proportion would make that difficult to achieve.”
Let us think about that for a moment: the experience of the victim of this behaviour—their fear, their terror—means nothing because the man just said, “I was kidding”. We would not allow that for any other form of crime, so why do we allow it when it comes to men who harass women?
Stella Creasy
I will happily give way to my colleague from the Bill Committee.
Alex Chalk
As always, the hon. Lady makes a powerful point, but just because a defendant or suspect alleges that that was in their mind and therefore has a defence, it does not mean a tribunal of fact—magistrates or a jury—will believe it. Very often they say, “What a load of old nonsense. We’re going to convict you.” Does she agree?
Stella Creasy
I hesitate to say that the hon. Gentleman was not listening to what I said, but this was what the police said. Such a case will never get to a point at which a jury or somebody looks at the evidence base because we do not have a commitment to recording and recognising misogyny. Such a commitment would mean that the police would record and recognise it in the same way as racial or religious hatred. Before this case got to the test that the hon. Gentleman is setting, the police said that they would not investigate it further. The challenge facing women across this country is that we do not take this seriously: 66% of women have changed their behaviour to try to avoid street harassment as the police are not taking it seriously.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
I am sure that the hon. Lady shares my concern that many crimes with a gendered aspect have rates of reporting and of final prosecution that are so low. We need to look at all the reasons for that.
Stella Creasy
I completely agree. This is the point about changing the mindset. Let me reassure the hon. Member for Cheltenham (Alex Chalk) that where police forces, particularly in Nottingham, have started to record misogyny as a hate crime—this is not a new idea—it is transforming the experience of women not just when it comes to street harassment, but when it comes to violence against women in total.
Stella Creasy
I will happily give way to a Nottingham MP and then to the right hon. Gentleman, but then I really must make some progress, because I am conscious that other Members want to speak.
Anna Soubry
I rise purely to put on record that that has been done by Nottinghamshire police. I think it is the first force to do so, and we believe that the evidence is showing that it is having exactly the right effect on the police, in that they are taking this seriously and seeing it as an offence.
Stella Creasy
I desperately apologise to the people of Nottinghamshire for forgetting the “Shire”—I am not a fan of “The Lord of the Rings”. I hope the right hon. Lady will forgive me.
Sir Mike Penning
As a former Minister for Policing and Criminal Justice, I stress that just because the police were not willing to take the matter forward does not mean that an offence has not taken place. This will be driven forward by guidance to the police, particularly from the College of Policing, and by the evidence about what is happening in Nottinghamshire. The offence is there, whether or not we change the wording of the Bill today. Trying to force someone into a car is an offence, and the police should take it seriously.
Stella Creasy
I understand the point that my colleague is making, but women in this country have suffered from this chicken-and-egg syndrome for too long. The idea is that because the offence exists, somehow it will be taken seriously, but the bitter reality of women’s experience shows that that is not the case. New clause 1 is designed to amend the guidance that is given to the police in recognition of that fact. The existence of specific offences has driven change, as amendment 7 is designed to do. I do not disagree with my colleague, but unless we get the proposed measure in the legislation, the way in which the police deal with the problem will not change quickly enough to give the women of today the freedom to walk on the streets, as he does, without being frightened.
Sarah Champion (Rotherham) (Lab)
My hon. Friend will know that one reason why hate crime legislation is so powerful is that the emphasis is on the victim and how they perceive the crime. If misogyny was a hate crime, the police response to the examples that my hon. Friend has given would automatically not be permissible. Power is shifted to the victim.
Stella Creasy
As ever, my hon. Friend is on the money about the importance of a victim-centred approach. We know from Nottingham—[Interruption.] I do apologise; I meant Nottinghamshire—sorry, Frodo. We know from those examples that recognition of the multiple kinds of intersectional hostility that women may face has been a powerfully positive experience, particularly for women from black and ethnic minority backgrounds.
Internationally, this is not a new idea. Spain, Croatia, Sweden, Estonia, Italy, Belgium and France all recognise gender and misogyny as a basis for hate crime. We are talking about replicating our current model for racial and religious hatred, and saying that we should be able to recognise similar hostility in the sentencing of particular crimes. We should be able to recognise the hate as it is.
There is already a framework that Ministers can use. The Crown Prosecution Service and the police already define cases involving hostility as
“any…offence that is perceived by the victim or any other person to be motivated by hostility or prejudice.”
The CPS does not have a legal definition of hostility; it uses the everyday understanding of the word. We all understand and recognise misogyny when we talk about ill will, spite, contempt, prejudice, unfriendliness, antagonism, resentment and dislike. We seek to echo existing protections and to put the protections that we offer someone for their religious or ethnic background in a position of parity with those that we offer them for their sex background.
I accept that amendment 7 is not a perfect amendment because it covers only upskirting, but upskirting is a classic example of an offence that happens within the context of misogyny. It is motivated by misogyny.
Stella Creasy
I will happily give way to the hon. Gentleman because I know he feels very strongly about this.
Alex Chalk
The hon. Lady is making a powerful point, but she has identified something that she is right to concede is a weakness. It would be very odd, would it not, if misogyny could be applied to the offence of upskirting but not to rape, sexual assault or revenge porn. Does she therefore agree that a solution might be to get the Law Commission to look at the matter in a more holistic way?
Stella Creasy
It is almost as though the hon. Gentleman read my mind—he is right. The data shows us that 15% of young girls say that they are being groped, and there might be somebody behind that and we want to record where it is happening. Clearly, this is not just about how people use mobile phones in the modern world. It is about the hatred towards women that exists among a small group of men in our society, and the damage that that is doing to our society as a whole.
I have said clearly that we would not press the amendments if we could have a meaningful and properly funded Law Commission review into all hate crime, including misogyny, looking at both existing and new legislation. I do not think that that is a lot to ask. I know that the Law Commission is open to looking at the matter and that it recognises the importance of new legislation. We required new legislation to extend such protections to disability and transgender identity.
Victoria Prentis (Banbury) (Con)
In the interim, while we wait for a wider review of the law on hate crime generally, would it be helpful for police guidance to reflect the points that the hon. Lady is quite rightly raising, in the way that it does on sexting, for example?
Stella Creasy
Absolutely. I would love it if all police forces, including the Metropolitan police—I know that the Mayor of London is looking into this issue—could learn from Nottinghamshire police and the other four forces that are acting, but I also recognise that the police are asking Parliament to offer guidance on these issues, and that is what we can do today. If we change the law and offer women new protections from hatred, we will send a clear message to women that they can report these crimes, and a clear message to the police that they should not only record them, but do something about them.
I am pleased that the Law Commission is open to reviewing this issue, and I am pleased to hear from those who work with people who deal with hate crime on a daily basis. The proposal in the new clause has the support of Refuge; the Southall Black Sisters; Stonewall; Citizens UK, which has been doing fantastic work campaigning on this issue in Nottinghamshire; the Fawcett Society; Tell MAMA; Dimensions, which works with people with disabilities; Solace Women’s Aid; and Respond, which works with children and adults with learning disabilities. There is a whole panoply of people who recognise that hate is holding our society back and that it is right that we make sure that that does not happen.
Right now, we say that if a woman is targeted in her workplace, we know who is wrong, but as soon as she steps outside, we do not know what happens. New clause 1 is about that gap in our legislation.
I know that some people—not just on Twitter—are going to ask about men. The “What about the men?”—the misandry point. The Law Commission review could look into all that, but let us be clear that it is not men who are trying to report this crime on a regular basis. It is not men who are experiencing this regularly. It is not men who are being targeted in this way. It is not men who we say are worthy of protection at work, but not if they dare to go out at night. Let us engage in all the whataboutery that we want to, but do not tell me that women’s experiences do not matter. When people argue against these proposals, they are saying that, on that basis, the existing protected characteristics are not that important—that there is a limit to how far they want equality to go.
I have had that in some of the comments I have received about this issue. A gentleman wrote to me today to say:
“Obviously this is a law to prevent perverts’ fantasies. Yet as a society why is it we have allowed women and even our daughters and granddaughters to dress even more suggestively than was the case generations ago that must be giving rise to fantasies…out there?”
Under your eye, Sir, if you have been watching. May you be blessed.
Another man wrote to me to say that I am abusing my position
“to push for Misandry to be juxtaposed with her Misogyny.”
and to
“target the bloke-hating females of the species”
because I am a
“a nasty feminist ‘I’m Offended’ snowflake whinger hell bent on emasculating male society.”
The vast majority of men in this Chamber and in our society do not want to be associated with that bile, but they do want to make sure that people are safe, and that is what this is really all about. It is not about flirting or banter. I have yet to meet a couple who have said that they met because he followed her down the street demanding that she get in the car with him. It is about how we make this a country where everybody is free.
I am really done with all the whataboutery and all the opposition to this. It is not really a lot to ask for, is it? We would like to be able to walk around this country free from fear. We would like those who target women in a hostile way to be held to account. We would like the harassment to stop.
I am fed up with being told that there have been private briefings saying that somehow this issue is too controversial—too difficult—and that we are going to delay legislation. This is 2018. This is not Gilead. It is not about all men, but it is about some men. There is only one person who can stop this legislation, and that is the gentleman sitting opposite—the Secretary of State—but I know that he does not want to do that. I know that he can hear a reasonable request to review all hate crime, and to look at new and existing legislation to get it right for the 21st century so that we can protect everyone from being targeted just for being who they are. I will tell him, though, that we will not keep waiting. We will not keep being frightened. We will not keep being hassled for going about our daily lives. Please, do not tell women to put up with this because you find it difficult. Let us get on and make 21st century laws to stop it.
Mrs Maria Miller (Basingstoke) (Con)
My hon. Friend the Member for Christchurch (Sir Christopher Chope) was right. In objecting, he has given Parliament the proper opportunity to scrutinise the Bill. If he had not objected, the Bill would have gone through on the nod and the amendments we are debating today would not have been possible. The failings of the private Members’ Bill procedures are not for discussion on Report. No one, least of all me, is denying the need to address swiftly the wrongdoing of upskirting, but that should not be at the expense of proper scrutiny. We have to wake up to the need to jettison antiquated, opaque procedures in this place, procedures that in this instance I believe have left a respected and longstanding hon. Member, my friend and fellow Wessex Member of Parliament, open to hostile attack for acting to ensure that this new law is subject to appropriate levels of scrutiny.
As we have just heard from the hon. Member for Walthamstow (Stella Creasy), the issues we are discussing today on upskirting are a part of far broader issues to do with image-based abuse and sexual harassment in public places. It is right that we address upskirting, but it is also right that we reject the piecemeal approach for dealing with these issues. The Women and Equalities Committee is looking at the issue of sexual harassment in public places. The hon. Member for Rotherham (Sarah Champion) is in her place. We have taken copious amounts of evidence on this issue and we will be issuing a report in autumn dealing with many of the issues that the hon. Member for Walthamstow has raised today. The Government need a cohesive strategy in this area. I believe this piecemeal approach is not the right way forward. Indeed, if we had a cohesive strategy, we would not need this Bill.
In wanting to move so swiftly to change the law, the Government are right to use the existing Scottish legislation as its base. However, the Scottish Act was passed eight years ago, and in that time the Scottish Government have themselves recognised significant shortcomings in their own law and made changes, changes that are not reflected in the Bill before us today. The amendments tabled in my name and in the names of right hon. and hon. Members from across the Conservative party, the Liberal party, Plaid Cymru, the Scottish National party and Labour seek to rectify those shortcomings and tackle the emerging problems that we are seeing with the Scottish legislation: very, very low levels of prosecutions and convictions, with legislation that has now been in place for eight years.
Amendment 3 makes all upskirting a crime. At the moment, the Bill is very narrowly defined. There should never be an instance when it is acceptable to take a photo up anyone’s skirt without their consent. The issue should be the lack of consent, not the motivation of the perpetrator. The perpetrator’s intentions can be difficult for the police to prove. Is it to humiliate? Is it to alarm? Is it to distress the victim? They may never know or care who the victim is. The picture may be shared for a laugh, or taken and sold and then sold on again. How do the police track the buyers and sellers of these photographs? The Bill explicitly does not outlaw upskirting per se; it outlaws it in certain circumstances.
Sir Mike Penning
I completely agree with my right hon. Friend’s vitally important amendments. Looking at the evidence of what happened in Scotland, we see that the very low number of prosecutions—as low as three, I think—was partly because the intent of the upskirting could not be proved. Instead of the offence just being, “This is wrong, let’s prosecute”, the intent had to be proven. That was the problem with the Scottish legislation and why the number of prosecutions was so low. My right hon. Friend’s amendments will address that issue. If they are not accepted today, I hope this issue can be addressed in the other place once the Select Committee’s report comes out.
Mrs Miller
We have to make the law work in practice, as well as on paper. Like my right hon. Friend, I believe that because these things have been made so complex, the police are finding them difficult to implement. I am not sure that we have an investigation into that. The Minister may want to talk to us further about what she has found out from her Scottish colleagues, because I think they are looking at it in a lot of detail.
Sir Christopher Chope (Christchurch) (Con)
I am most grateful to my right hon. Friend, particularly for the generous comments with which she began her remarks.
As a consequence of this being a Government Bill rather than a private Member’s Bill, my right hon. Friend will have seen its financial implications. The financial implications set out in the explanatory notes are on the basis that there will be 29 prosecutions a year—that is all. Is she surprised at all the hoo-hah about this, and that the Government are expecting only 29 prosecutions a year?
Mrs Miller
My hon. Friend will hear my thoughts on that in a few moments when I talk about my experience of estimates of the levels of revenge pornography, which were equally low. In practice, there has been much more of it. I therefore wonder how accurate the projections are.
My concern is that drawing the Bill in this way will artificially depress the number of people who come forward. The courts might think that Parliament, in its specific omission of certain groups of people who perpetrate this crime—we know they are doing it already—is artificially narrowing the number of convictions that are brought forward. I do not think that is how Parliament wants the Bill to work. Amendment 3 would make sure that it worked far more broadly and called to account all the people who are committing this crime, not just a very small section of them.
The Minister was at pains in Committee to underline that the two purposes are based “word for word”, as she said, on the Scottish Act. As we have heard, only a handful of cases have been brought under that legislation—just three a year over the past eight years. That is an extraordinarily low level in the context of the statistics that the hon. Member for Walthamstow went through. Research tells us that about one in 10 young people in this country experiences upskirting. That would mean a far higher rate than just three in Scotland or just under 30 in the UK. We need to hear from the Minister what information she has received from Scotland on why there is such a low level of conviction, and what will be done to change that.
I was interested to read the evidence of Alison Saunders of the Crown Prosecution Service. While it said that the motivations in the Bill covered the overwhelming majority of cases, it admitted that:
“It is not inconceivable that suspects will advance the defence that…they had another purpose, such as ‘high jinks’.”
That is a direct quote from her. How confident is the Minister that the CPS has a true grasp of the nature of this offence, given the data we have that implies that there are far more than just a handful of cases every year? As I said, I recall being told that there were just a handful of cases of revenge pornography—fewer than 10 every year—by the same Crown Prosecution Service. With the right legislation, which was put in place by the coalition Government, we now see more than 500 convictions a year for revenge pornography.
Adopting the Scottish model might artificially limit the number of cases that are brought forward. What will the Government do to address that? Will the Minister undertake to have a review of the way the law is working in practice, so that we are not simply having a nice debate today that has very little impact on the lived reality of people who experience this appalling invasion of their privacy and this virtual sexual assault?
Rather than requiring the police to tease out the motivation of an offender and to prove that a victim was humiliated, alarmed or distressed, amendment 3 would make upskirting of any kind a crime. It would have absolutely no impact on the ability of a court to identify the most dangerous offenders and place them on the sex offenders register. Nor would it increase the number of people who are drawn into that.
Amendment 5 directly tackles the other shortcoming in the Scottish Act by making it an offence to distribute upskirting images. Given the Government’s stated objective of copying the Scottish Act word for word, it is unclear why they have chosen to omit the pivotal amendment made to the Scottish Act in 2016 outlawing the distribution, particularly online, of upskirting images. Our existing laws on this issue are patchy at best. I am aware of the Law Commission’s long overdue inquiry into laws in the online world, but to present the Bill with an essential element missing appears to me to be at best an oversight. Will the Minister explain why she felt she should omit this element of the Bill, when it was deemed an essential change required in Scotland?
We need a broader review of the law on image distribution—I have felt that strongly since I was first approached by a constituent about revenge pornography—and I am delighted that the Law Commission is now doing work in that area, but it will take a number of years to complete. In the meantime, outlawing distribution in this Bill specifically would be a stopgap solution, with the Scottish experience as a clear legal rationale. Will the Minister speak to her Scottish counterpart to understand why the amendment was made in Scotland and perhaps even revisit this in the Lords? I am sure their lordships will also be keen to take an interest in this aspect of the Bill.
There was much talk in Committee about not wanting to unintentionally criminalise people, particularly young people, and that is absolutely right—there can be few people who see that as helpful—but rather than dwelling on the perpetrators, we also need to think about the victims and the huge damage being done, particularly to young women, who are on the receiving end of this type of sexualised assault. What message is Parliament sending to young men who are taking pictures up the skirts of their school mates for a laugh if this place excludes that from the law? What are we saying to those young women about the value we put on their right to be protected in law if we see this sort of non-consensual virtual sexual assault as a price worth paying?
I commend the hon. Member for Walthamstow for raising the issue of misogynistic hate crime. It is under active consideration by the Women and Equalities Select Committee in its current inquiry, and I would not want to prejudge that inquiry, but I will say that the scale of sex-based and gender-based crime needs to be recorded, recognised and acted upon, and it needs to be tackled much more broadly, not just in terms of upskirting. I also fully endorse her sentiments about the Law Commission, although it could be said that including that element in the Bill could be problematic in other discussions.
The hon. Member for Bath (Wera Hobhouse) is a tenacious campaigner, and it is to her credit that we are here today discussing the Bill, which deserves the full support of the House. As today’s debate proves, swift change does not have to come at the expense of proper scrutiny.
Sarah Champion (Rotherham) (Lab)
I want briefly to share my experiences last week in Korea, in Seoul, where upskirting has not been addressed either by society or by the law. The situation there for women and girls is truly horrific. Girls are scared to go into any sort of public toilet, whether in their school or a shopping mall, and women, when they go into public toilets, take a device with them and scan the toilet to see whether they are going to be violated in this way. I do not want us to go down that route. I want us to look at what is motivating society. Why do men seem to feel entitled literally to expose women in this way, sharing the images and seeing them as objects they can control and do whatever they want with?
We have spoken a little bit about the potential of there being only a low number of prosecutions for this crime. I see that as a good thing. What making this illegal would do is send out the clearest message to people that this is a crime and an offence and that they will have action taken against them if they carry it out.
I am incredibly pleased that relationship education is now coming into primary school for all children. A key component of that is explaining to children what is and is not acceptable and that these gender assumptions are put upon them from the very youngest age and that it is their right to challenge them and to have society challenge them on their behalf, so that they can live a full life, making the choices that they believe in and that they are able to make.
I want to reflect briefly on our society and on how we have come to this point now where we have femicide—two murders a week of women—where violence against women is commonplace and where we have this complete objectification of women without any recourse. I go right back to the very beginning when little girls are effectively told what their expectations can and should be. They are given dolls and tea sets. They are told to be complicit and they are told to be quiet. Boys are told that they will be great crusaders. They have guns and they can become world leaders. We encourage children’s expectations at the age of two or three. That then becomes amplified through social media and, specifically, through online porn.
Porn is overwhelmingly made by men for men and overwhelmingly sees the woman as an object that a man can use and abuse however they choose with no repercussion. Until we get the relationship education that shows children that this is a fantasy—in many cases, a perverse fantasy—that is what children will believe that they have to be subjected to. I am talking about boys and girls. When Members go into secondary schools, I am sure that they have young boys and girls coming up to them and asking them, “Do I have to have anal sex? Do I have to strangle my girlfriend when I have sex? Do I have to have sex with other people there?” They are genuinely anxious about this, and we are letting our children down. This legislation on upskirting is about saying, “No, this is unacceptable. It is unacceptable for you to perpetrate and it is unacceptable for it to happen to you.” It sends out a really clear message. I am incredibly grateful that the Government have introduced this Bill.
I also wish to focus on the amendments that include the distribution and the profiting from upskirting. Much of this is being done for money. In Korea, that is what is happening. People are humiliating women not just for their personal gratification, but to make money, so it would be a grave omission if that were not included.
I turn now to the substantive point that I have been trying to make: this crime is a symptom of the misogyny that we are experiencing in this country and that we are seeing escalating in this country, and it needs to be tackled in this country. I urge the Minister to carry out the review that has been proposed by my hon. Friend the Member for “Walthamshire”—[Laughter]—and to incorporate the amendments in the Bill.
Sir Christopher Chope
May I say how much I welcome this debate? I am grateful to the Government for taking forward this measure as a Government Bill rather than relying on the private Members’ procedure. I am also very grateful to my right hon. Friend the Member for Basingstoke (Mrs Miller), the Chair of the Women and Equalities Committee, for her generous comments about the importance of being able properly to scrutinise in a sober fashion the very serious issues that are contained in this Bill and indeed the wider debate, which has been developed by the hon. Member for Walthamstow (Stella Creasy). In answer to her point on that, I say bring on the Law Commission. As a member of the Home Affairs Committee, I think that it is very important that we should try to keep abreast of new developments. Hate crime is one of those vile activities that we need to legislate against, but we need to do it in a really good way. The best way to do that is, as she suggests, by getting the Law Commission on board because it has the expertise to help us in this House.
Stella Creasy
I feel the need to stand up for the members of the Committee, having been a member of it myself, and to reflect that the discussions we had in Committee about treating misogyny as a hate crime did not receive Front-Bench support. That made me, as a Back-Bench Member scrutinising the Bill, reflect on what more could be done to win that argument. It is not always a good thing to be told no.
Sir Christopher Chope
I have nothing but praise for the hon. Lady. Fortunately, the Opposition Whips, who are represented on the Selection Committee, obviously did not think it was necessary to allow the Bill to proceed without any amendment. It is worth putting on record that, during that Committee debate, the official Opposition spokesman said:
“The Opposition support the Bill completely, and will not propose any amendments.”––[Official Report, Second Reading Committee, 2 July 2018; c. 17.]
At that stage, the Opposition were blindly supporting the Bill, rather than being prepared to examine exactly how it might be improved.
Mrs Miller
My hon. Friend has referred to the procedures, processes and membership of Committees. I should like to remind him that the Second Reading of this Bill was done in Committee, and I had to fight slightly to be a member of that Committee. Does he agree that using these kinds of techniques has not really speeded up the delivery of the Bill up to this point and that it has created an opaqueness about the methodology that Parliament uses?
Sir Christopher Chope
It has certainly done the latter. It is quite a long time since a Second Reading Committee was set up to consider a piece of legislation, but in terms of making faster progress, there is no doubt that we are much further on than we would have been if this had remained a private Member’s Bill. Some of the other Bills that had already had their Second Reading have yet to come out of Committee and reach their Report stage. So those are some of the advantages of having a Government Bill. Another advantage is that when the Bill goes into Committee, the Committee has the opportunity to take evidence. My right hon. Friend gave potent evidence to the Committee, as did other witnesses. That would not have been possible if the Bill had stayed a private Member’s Bill.
Wera Hobhouse (Bath) (LD)
Can the hon. Gentleman perhaps confirm that he said “Object” on 15 June in order to speed up the process of the Bill?
Sir Christopher Chope
My purpose in saying “Object” was that I wanted the Bill to be scrutinised, and full marks to the Government—I do not always give them full marks—for recognising that this was a Bill that could be properly scrutinised only if it became a Government Bill. So did I achieve my objective? Yes, I did. I am pleased that the Government have done this. I am sure that the hon. Lady, having seen the strength of some of the amendments and new clauses, will reflect on the fact that if the Bill had been left as a private Member’s Bill for her to steer through, she would have been under pressure from the Government throughout. They would have told her not to accept any amendments, and that if she did, the Government would prevent the Bill from making progress. The Bill would have been vulnerable as a private Member’s Bill—that is particularly true when a Bill reaches the other place.
Mr Speaker, I know that I am going to be told that I am straying from the amendments that I am seeking to address, and I apologise if I am doing that. I am hoping to establish support for amendment 1, tabled by my right hon. Friend the Member for Basingstoke, to ensure that the Bill delivers what it says on the tin. The Minister said that she was going to outlaw upskirting, and judging by the correspondence that I have had, most people assumed that that was what was going to be delivered. But then when one looks at the detail of the Bill’s financial implications, one works out that the Government are banking on it costing only £230,000 a year to a prosecute all these offences. When one divides that by £8,000, which is the cost of each case, one comes up with a figure of 29 prosecutions a year. If the hon. Member for Bath (Wera Hobhouse) had gone out into the street in her constituency and said, “I’m bringing forward this really important piece of legislation that will result in 29 prosecutions a year,” I am unsure whether people would have thought that it was as significant as it was being portrayed.
Sarah Champion
Does the hon. Gentleman accept that we are trying to prevent the crime from being carried out by making it clear in this Bill that upskirting is a crime? It should therefore be seen as a good thing if the Bill brings down the number of cases of upskirting.
Sir Christopher Chope
I agree with the potential deterrent role that legislation can have, but I would use a different analogy. There is a general law against driving without due care and attention, but due to the incidence of and public concern about people driving while using mobile phones, which was and is, strictly speaking, an offence under the law against driving without due care and attention, Parliament decided to introduce a specific offence, effectively replacing the previous one. The hon. Lady will know that, sadly, that specific offence has not actually had the deterrent effect for which many people had hoped, and that large numbers of people are still offending.
Taking that analogy and looking at the specific offence contained within the Bill, amendments to which we are seeking to discuss, if the general common law under which a lot of upskirting activity is prosecuted at the moment is replaced with a specific statutory law, prosecutions will come under the specific law, rather than under the general common law, which, as Lord Pannick has said, is vague and ambiguous in many respects. If the consequence of the Bill is that all offences of upskirting are then brought within its ambit and prosecuted on that basis, that will be great and I am all in favour of it.
However, if we are going to do that, we should not constrain those offences by saying that they can be proved only if a motive is also proved. As my right hon. Friend the Member for Basingstoke asked, why is not the mere fact that somebody takes a photograph without the consent of the “victim” an offence in itself? Why do we have to limit the offence in the way that this Bill does?
Mr Speaker
Order. I have been listening patiently and most attentively to the hon. Gentleman, who has offered the House a procedural disquisition and some remarks that touch on what might be called the theology of the Bill, which is of considerable interest to the House. He also animadverted to a number of the Bill’s explanatory notes, but if he felt able to proceed fairly promptly to the amendments, which relate specifically to guidance, purposes, aggravating factors, and notification under the Sexual Offences Act 2003, he would be beautifully in order.
Sir Christopher Chope
I am most grateful to you, as ever, Mr Speaker, for your guidance on such matters. Turning specifically to my right hon. Friend’s amendment 1, it would remove from the Bill any requirement to prove a motive. It seems to me that the activity itself should be criminal and should not need to have a motive ascribed to it. As soon as a motive has to be established, it makes it much more difficult for the prosecuting authorities. It makes it so easy for members of Her Majesty’s constabulary to say, “Well, there was no motive.” Why do we need a motive in respect of an offence that outrages public decency? No one has written to me saying that they think upskirting is a reasonable activity in which to participate. I very much hope the Government will accept amendment 1, tabled by my right hon. Friend.
Victoria Prentis
Whether or not these offenders should be on the sex offenders register is a difficult issue, because many of these offences will be committed by under-18s on under-18s; they will receive short sentences, but they will be committing offences on other children. Does my hon. Friend agree that it is right that we have this discussion now? Does he also agree that the police guidance on sexting may be very useful in working out a way forward on this difficult and sensitive matter?
Sir Christopher Chope
I absolutely agree with my hon. Friend that it is very important that we should have this discussion, as this issue is complicated, and I agree with her suggestion. That is another argument in favour of having a proper, sober debate on this issue, without getting too much emotional involvement in it.
Finally, if the Government are reluctant to accept the amendments put forward today and reluctant to extend the scope of the Bill so that it embraces more than 29 potential prosecutions every year, I hope that when the Bill reaches the other place their lordships will look at this legislation and say, “We want to make sure it actually delivers what it says it is going to deliver.” It certainly does not do that at the moment, and it will not unless it is amended. One final consequence of this being a Government Bill is that when it goes to their lordships’ place nobody will be deterred from tabling amendments on the basis that if they do so, there will not be time to consider those amendments in private Members’ Bill time in the House of Commons and therefore the Bill will be killed. That argument will not run in the House of Lords in relation to a Government Bill, which this is. That is another reason why it is a very good idea that it is a Government Bill. I am very enthusiastic about amendment 1, tabled by my right hon. Friend the Member for Basingstoke, and obviously equally enthusiastic about my own.
Wera Hobhouse
It is a pleasure of sorts to follow the hon. Member for Christchurch (Sir Christopher Chope). We have disagreed on things, but I am pleased to say that I agree with him that we want to make this Bill as good as possible and, in particular, to ensure that it acts as a good deterrent so that people do not consider this vile practice.
I am immensely grateful that the Government have taken the upskirting Bill through the House so quickly. Everyone involved can be very proud of what has been achieved so far. This Bill is testament to how we can all work together constructively. We all agree that upskirting is a vile practice and has to become a specific sexual offence. We all agree that either to gain sexual gratification from upskirting or to take an image for the purposes of distress, humiliation or alarm should not be tolerated and should now be prosecuted in law. We also agree, by and large, that the worst offenders should go on the sex offenders register.
This Bill is aimed at stopping a vile offence by either deterring upskirting in the first place or through the successful prosecution of offenders. We want to ensure that everybody is protected from this crime. We are not debating those common principles today; we are debating how to bring about effective prosecutions and not allow anyone to slip through the net. The wide-ranging discussion on this Bill over the summer has led me to put my name to amendments that explore how we make this upskirting Bill as watertight and effective as possible. I believe that we can strengthen it in two ways.
First, the Bill, as drafted, makes upskirting a sexual offence only if it is done for sexual gratification or if photos are taken to humiliate, distress or alarm the victim. That means that those taking upskirting images for other purposes, for example financial gain, non-sexual enjoyment or “having a bit of a laugh”, would not be committing an offence. However, I believe that whether an offence has taken place should be determined by whether the victim has consented and whether the images were taken intentionally. The harm caused to the victim is substantial, regardless of the motivation of the perpetrator. Upskirting should be an offence regardless of the motive.
Secondly, the Bill would make the taking of the image an offence, but not necessarily the distribution of the image. Amendment 5 would make it an offence to distribute an upskirting image without consent, to which two defences would be available—to prevent or detect crime, or that the person distributing the image did not know that it was an upskirting image.
The large increase in sexually offensive images online is a real problem. Only on Monday, the Home Secretary made a speech talking about his shock at the sexual exploitation of children online, and the responsibility of online platforms. I understand that the Government intend to conduct a wide-ranging review of this problem, but it will probably be years before we can successfully tackle the issue in law. I therefore see no harm in trying to prevent the distributing of upskirting images now, even if other legislation lags behind.
I want the Bill to stop the vile practice of upskirting. It should be a successful tool for prosecution, but it should also act as a deterrent—zero tolerance, no loopholes. Since I got involved in the upskirting campaign, I have understood how distressing upskirting is to victims. I want to make sure that anybody even considering taking an upskirting image should think twice. I would also like the Bill to have a wider purpose—to inform the wider discussion around consent, online distribution of sexual images, and outdated attitudes, especially towards women. We have heard about that subject today, and I very much welcome the contribution by the hon. Member for Walthamstow (Stella Creasy). The Bill marks an important stepping stone, and I am grateful for the largely consensual debate on how we can stop upskirting for good.
Sir Mike Penning
It is a privilege to follow the hon. Member for Bath (Wera Hobhouse) and I congratulate her on the tireless work she has done. I also congratulate Gina Martin, who is a brilliant campaigner: I wish she was with me campaigning on issues in my constituency.
I was not here on the Friday when the private Member’s Bill was objected to, but I was conscious of it when the hon. Member for Walthamstow (Stella Creasy) said that not all noes are bad. There was a no, and it means that we are here today. The Bill before us is not perfect, and I shall say more about that, but the reason the Bill has been expedited and we have the amendments is because of what happened then. While my hon. Friend the Member for Christchurch (Sir Christopher Chope) was vilified and attacked in some parts of the press, I think that in his heart of hearts what he wanted—he has objected to many Bills over the years—is scrutiny and for the Government to come forward with their arguments for and against, rather than being squeezed by the technical procedures of Friday sittings.
As a former Minister, I know that the Minister will be under pressure not to accept amendments. I have sat on the Treasury Bench on many occasions and read the notes and briefings. I often got in trouble because I would say, “No, common sense needs to prevail here, because some of these amendments are right.” In my opinion, some of the amendments to the Bill are right, and if Ministers do not accept them—or give a very good explanation of how they will address the points made—the House should divide on them. The country is looking to us to give a lead on this important legislation.
One reason we do not have very many prosecutions for the offences that already cover upskirting—the hon. Member for Walthamstow mentioned some of them in her contribution—is that the police and the CPS do not have the confidence that that is what this place intended. I know that because I was a Justice Minister with responsibility for policing and victims, and I have had that put to me. The judges in the appeal courts say all the time, “What is the intent? If Parliament had intended that, it would have put it on the face of the Bill.” There are things missing from the face of the Bill that I will now address.
I agree with the hon. Member for Walthamstow that new clause 1, to which she is the main signatory, further expands the provision, but the Law Commission is where this needs to be done. I hope that, when the Minister stands up, common sense will prevail, that we do not need to divide and that the Law Commission can look at the wider aspect of this hate crime, which is what this is.
Liz Saville Roberts
It is an honour to follow the right hon. Member for Hemel Hempstead (Sir Mike Penning) and his excellent speech, which summarised much of what I intend to say now; I hope he will forgive me.
I would also like to refer to new clause 1 and the need for a review by the Law Commission. With hate crime, we need to look at the rates of reports as compared with the rates of successful prosecutions. If those are low or if something appears difficult to explain, there should then be a consideration of why they are low. I suspect that in many cases we will find that we are trying to use common law or pieces of statute that are now dated and just not clear. Under the weight of criminal activity, it is sometimes very challenging for the police to know how they are going to deal with the matter if there is not a clear route ahead.
I want to speak in support of the amendments tabled in the name of the right hon. Member for Basingstoke (Mrs Miller). Amendment 3, along with amendments 1 and 2, make all upskirting an offence regardless of the motivation of the perpetrator. As I said, the legal clarity necessary to prosecute upskirting becomes blurred when the focus is directed towards establishing an answer to the question of why someone has taken an intimate photo of someone else without that person’s consent. Taking a private, intimate photo of someone else without their consent should always be illegal. The legislation as it currently stands ignores victims and their experiences and places its focus solely on the intentions of the perpetrators. It thus fails to capture all instances of upskirting, fails adequately to protect the victim, and fails to make all perpetrators liable for prosecution.
These amendments rightly take the issue of consent as the primary concern, although it is evident that the motivation of the perpetrator should not be completely disregarded; rather, it should be treated proportionately, as we do in other crimes. Serious sexual offenders, such as those who commit upskirting for the purpose of sexual gratification—rather than, say, for financial gain—should still be subject to notification requirements, and the amendment does not stop that from happening. The prosecution of an act of upskirting can examine whether consent was gained when the image was taken, and look at why the image was taken, in order to ensure that offenders are treated appropriately on conviction, with some being placed on the sex offenders registers as necessary, according to their motivation. The amendment does not seek to make all perpetrators of upskirting offences subject to notification requirements, but seeks to ensure that all perpetrators of upskirting offences are able to be prosecuted, regardless of the reasons behind their actions.
The Minister has justified the current drafting of this legislation on the grounds of existing legislation in Scotland, which it mirrors. It is entirely right that we legislate to ensure that upskirting is illegal, but simply copying the legislation as it stands in Scotland, which has recently been revealed to be in need of review, will not result in an effective or long-term solution. The CPS stated to us in Committee that, if the Scottish legislation were to be replicated in England and Wales, it would
“anticipate that most offending will fall comfortably within these categories”,
but the evidence from Scotland now shows that this is unlikely. Recent figures show that, in the first six years of the law being in operation in Scotland, just 21 prosecutions have taken place out of a total of 142 charges reported—only 15%. That is a clear example of the type of gendered legislation that is not resulting in effective prosecutions. It would be irresponsible for us as legislators to press ahead with this legislation when we have clear proof that many of the reports due to be brought to the police in its name would be unlikely to lead to successful prosecution.
Alex Chalk
The hon. Lady is making a powerful speech. I want to explore one thing, if I may. She is saying, I think, that someone should be guilty of an offence whatever the motivation. If a court were to find that the offence were committed for the purposes of obtaining sexual gratification, then the defendant should be put on to the register, but how, if clause 3 is deleted, will a court be able to establish what the motivation was? Is there not a danger that a jury would not be deciding it but instead a judge? Is there not some logic to ensuring that it will be the jury who will determine this matter, which has important consequences for the penalty that follows?
Liz Saville Roberts
I am grateful to the hon. Gentleman for his intervention. We need to have this debate in relation to these crimes. None the less, if we find ourselves in a situation where the motivation is the sole means by which we decide to move ahead or not, then we are providing a bolthole that will give people a defence. I hope that the Department will be discussing further with its counterparts in the Scottish Government exactly why the prosecution rates are so low there. If there are concerns that we are giving a line of defence on the grounds of motivation, we must be very careful. Are we prioritising the right issue, or is it, as I was trying to explain, rather a matter of proportionality when it comes to sentencing and knowing what the motivation is?
I will now speak in support of amendment 5, which seeks to close the biggest loophole in this legislation—namely, that it would be an offence to take an upskirting picture but not necessarily an offence to distribute it. When the amendment was introduced in Committee, the Minister explained that there were already statutes that might capture the distribution of such photos, such as section 127(1) of the Communications Act 2003 and section 1 of the Malicious Communications Act 1988. Just as the motivation clause of this legislation means that not all upskirting would be outlawed, nor does the present legislation outlaw distribution in all cases.
We should not be passing legislation that only works to a certain extent. I appreciate that the Department for Digital, Culture, Media and Sport and the Law Commission are working together to look into the onward sharing of images as part of their review in relation to online abuse, but failing to include anything in this legislation about distribution risks creating a giant loophole that would facilitate the further distress of victims. It is an entirely predictable outcome that we can see from where we stand.
We have the opportunity to address this issue now, and we should seize it, instead of holding back. When the original upskirting legislation was passed in Scotland, it had to be followed up with additional legislation to cover the distribution of these images. The UK Government unfortunately appear blithely to be following the process of the original legislation in Scotland. I propose that we take the opportunity to learn from the pitfalls experienced there, rather than run headlong into the same complexities. I urge the Minister to commit to work with Scottish legislators to strengthen the Bill.
I encourage the UK Government to join colleagues across the House, who have made some excellent speeches this evening, in supporting the amendments. Otherwise, they risk waving through legislation whose excessive complexity and obvious loopholes will hobble it from day one.
Ross Thomson (Aberdeen South) (Con)
I will keep my remarks very short, Mr Speaker.
I want to begin by acknowledging why we are here discussing this very important issue: the incredible work of Gina Martin and her lawyer, my fellow Aberdonian Ryan Whelan. They have worked so hard to campaign on this issue, raise awareness of it and take it forward. I remember meeting Ryan in my constituency office and talking about Gina’s experiences a victim of upskirting, and I just could not believe that this was happening across England and Wales. It felt wrong that it was happening, and that certainly motivated me to get involved in the campaign to give justice to women and victims, and to ensure protection for all young women.
I thank all Members of the House because the Bill has had genuine cross-party support from the Labour party, Plaid Cymru, the Liberal Democrats and the Scottish National party. Their real support for the Bill has helped it to progress so swiftly through the House. It is at moments like this that Parliament shows itself at its best, with cross-party co-operation to put something on the statute book that will do good for our constituents.
We all came into Parliament to make a difference. We want to be able to serve our constituents, to change the law, to right wrongs and to protect some of the most vulnerable. Together, we are doing that. So often people see on television the spats that we have—there will be many more—and the rowdy Prime Minister’s questions, but often moments like this, which I genuinely think are when our Parliament is at its best, do not get coverage.
The practice of upskirting—taking a photograph up a person’s skirt or clothes without their consent—is truly horrific, and those who have been the victims of such a crime have been clear about how it has personally affected them. Some have described their experiences of upskirting as “scarring”, “a real invasion”, “embarrassing” and “humiliating”. When the Minister talked to the Committee, she referenced the fact that one victim described the invasion of upskirting as making her want to “peel off her skin” and scrub herself clean.
There is a real gap in the law that needs to be filled, and we can do that. This is the moment to do it because upskirting is a terrible and horrific crime. It is a horrendous invasion of privacy, and it is right that offenders will be appropriately punished following the creation of a specific upskirting offence. The whole House will be able to send a clear message to potential perpetrators that this behaviour will not be tolerated.
Yasmin Qureshi (Bolton South East) (Lab)
I thank all the members of the Public Bill Committee, from both sides of the House, for their work and active participation. May I say that none of them were stooges? They all actively participated in Committee.
I want to congratulate the campaigner Gina Martin, who highlighted this very important issue and the lacuna in the law. I also acknowledge the work of the hon. Member for Bath (Wera Hobhouse), who introduced this measure as a private Member’s Bill. Mr Speaker, you could say that this is one of the lessons of the law of unintended consequences. When the hon. Member for Christchurch (Sir Christopher Chope) objected to giving that private Member’s Bill a Second Reading, that resulted in an outcry and criticism from every quarter, but it is fair to say that were it not for that, this Bill would not have seen the light of day.
In 2017, the shadow Justice Secretary, my hon. Friend the Member for Leeds East (Richard Burgon), wrote to the Lord Chancellor to ask the Government to enact such legislation in Government time, but they refused to do so. However, we are pleased that they have now been catapulted into bringing forward this Bill. We have supported the Bill at all stages and supported the Government because we recognise the urgency of a situation that needs to be addressed. The Bill was drafted by Ms Martin’s lawyers and we did not want in any way to cause difficulties or a delay in proceedings.
Let us be clear: upskirting is a depraved violation of privacy. It is shocking that in England and Wales at the moment there is no specific criminal offence to cover this, and that it is instead being prosecuted under more general offences such as outraging public decency, although we know it can be difficult to satisfy many of the requirements of such offences. The law as it stands means that the focus of the offence is often on protecting the public from potential exposure to lewd, obscene or disgusting acts, rather than on protecting the individual victim. Some people have been prosecuted for upskirting on the basis of outraging public decency, but that is not really what that specific provision in law was designed for.
The law should focus on individual victims and the crimes committed against them. A number of cases have highlighted the failings of the current law, and I start with the case in 2007 of Simon Hamilton, a barrister, who was convicted after secretly filming up the skirts of women in supermarkets. He was able to appeal on the basis that because none of the victims had been aware of the filming and no one had seen the film, public decency had not been outraged. Then there was the case of Guy Knight, a former chartered accountant, who took photographs up women’s skirts on trains over a period of five months while commuting to work. He was caught after suspicious passengers reported him to the police. More than 200 illicit images were found on his phone and laptop, and 10 of the women in the pictures were traced by the police. None of them was aware that they had been photographed.
This campaign came about because of Ms Gina Martin. About a year ago, she was at a festival in London with her sister when she noticed that the man behind her had taken photos up her skirt. Shocked and distressed, she sought help from the police, but the law was not sufficient to ensure that they could help her. That is why a change in the law is required, and it is why we have supported the Government throughout proceedings on this Bill.
We must remember that many women right across the UK are being affected. This can happen to any woman on public transport, in a park, at a concert, or even just on a walk along a busy street without the victim even realising that the photographs have been taken. It is impossible to judge how many women have been victims of upskirting, although a quick internet search will bring up hundreds of sites and thousands of images. On phones and laptops there may be millions more pictures that were taken on the streets, on escalators, in shopping centres, in supermarkets, in nightclubs and in other places. I think the hon. Member for Christchurch may be wrong to say that the Bill will cover only 29 cases per year.
There are endless web forums where amateur upskirters can exchange tips on how to get the best picture. One was posted by a man who had made a “cam-bag”—a holdall that had a specially made pocket with a hole for a digital video camera lens. The post says:
“Never forget to shoot their faces before or after to know which girls the ass belongs to…After the first…asses, they look very similar and you lose most of the fun. After upskirting them, either step back and wait for them to turn or step by them and shoot directly sidewise.”
Another poster on the forum said that he operates
“mostly at theme parks and tourist hotspots, or really anywhere that draws a large crowd of spectators and cameras”.
He finds
“an attractive young lady, preferably a teen for my tastes, and then I evaluate the situation.”
Mrs Miller
The hon. Lady mentioned that my hon. Friend the Member for Christchurch (Sir Christopher Chope) referred to 29 cases. It was the Government, not my hon. Friend, who said that there would be 29 cases a year. Does she not share the concern that that is a very small number, given the prevalence of the problem and the evidence that she is presenting about the number of websites on which this issue is so blatant?
Yasmin Qureshi
I thank the right hon. Lady for that intervention, and I stand corrected. The hon. Gentleman referred several times to the figure of 29 cases, and I sensed that he was trying to say that the estimate that 29 people a year would be affected made the Bill not very important. By referencing, as the right hon. Lady said, what is happening online, I was trying to emphasise that the Bill will potentially cover many, many more people.
Sir Christopher Chope
If the hon. Lady needs a reference for the figure—I am surprised if she does—it is contained in the explanatory notes. Paragraphs 29 to 31, which concern the financial implications of the Bill, make it clear that the cost per prosecution is £8,000, and that the total cost to the Exchequer of the legislation will be £230,000 a year. If we divide one into the other, we get the figure of 29.
Yasmin Qureshi
I thank the hon. Gentleman for that helpful lesson in arithmetic. I can do that arithmetic, but the point I was trying to make was that he kept repeating that figure, so it seemed to me that he was trying to suggest that the Bill might not cover as many people as it purported to do.
Another man posted:
“I’ve been upskirting chicks, mostly at clubs, for almost two years. The club I go to is a great spot, real crowded, strobe lights going, loud music, so no one notices me sitting near the edge of the dance floor and if a woman in a skirt ends up by me I stick the cam under and snap.”
Legislation is needed to deal with those types of cases.
Several Back Benchers tabled amendments. My hon. Friend the Member for Walthamstow (Stella Creasy) spoke with great passion about her new clause and street harassment, and we support her on that. The Government must urgently look into bringing forward a comprehensive Bill to deal with many issues, including anonymity for victims of revenge porn; the cross-examination of victims of abuse by defendants, as occurs in civil courts; and the distribution and sharing of images. We need a fundamental review of all hate crime and sexual legislation to ensure that victims are protected and have access to justice, so it would be very welcome if the Law Commission or another body could look into this issue, with its recommendations implemented in law as soon as possible.
I commend the right hon. Member for Basingstoke (Mrs Miller) for her tremendous work as the Chair of the Women and Equalities Committee, which itself does tremendous work. I hope that the Government will address the points in her cogent and pertinent amendments and take on board the matters that she raised and the issues of concern. Hopefully, as the Bill progresses through both Houses, the Government will consider those amendments.
Lastly, on the amendment tabled by the hon. Member for Christchurch, I believe that in all cases judges should have discretion in deciding who should be put on a sexual register and when. That should not be a blanket proposal; it should be left to the individual judge in an individual case to decide whether somebody should be put on a sexual register, because being on the sexual offenders register has clear implications and repercussions for people.
The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)
Upskirting can be humiliating and degrading, and it is appropriate that that is recognised by the criminal law. As the hon. Member for Bolton South East (Yasmin Qureshi) rightly mentioned, although there is not currently a specific offence on our statute books, fortunately the law does already provide some protection. Prosecutions can be and have been brought under the common law offence of outraging public decency and the offence of voyeurism.
There is a gap in the law that needs to be filled, and it relates to where the offence takes place. Currently, if the offence takes place in a public place, such as a street, a person can be caught under the outraging public decency legislation, and if the offence takes place in a private place, they can be caught under the Sexual Offences Act 2003. However, there is a gap if the offence takes places somewhere that is neither public nor private. Worryingly, such places could include a school or a workplace. The Government have therefore introduced this Bill to seek to address this issue. As my hon. Friend the Member for Aberdeen South (Ross Thomson) said, it follows Gina Martin’s effective campaign.
Members have tabled a number of amendments that seek to expand the Bill’s scope. I shall address each in turn—and I assure my right hon. Friend the Member for Hemel Hempstead (Sir Mike Penning) that I will take the approach that he took when he was a Minister and consider each one in turn on its own merits, as a matter of policy and of principle.
First, I will deal with new clause 1 and amendment 7, tabled by the hon. Member for Walthamstow (Stella Creasy). They seek to ensure that when offenders of the crime of upskirting are motivated by misogyny or misandry this should be considered by the court as an aggravating factor when considering the seriousness of an upskirting offence for the purpose of sentencing. She also seeks to amend guidance to highlight this issue. As my hon. Friend the Member for Aberdeen South mentioned, it is very important to point out that the hon. Member’s amendments do not propose that misogyny becomes a hate crime, but is simply raised in the context of the upskirting offence. If the perpetrator of the offence was motivated by hostility against women, that should be taken into account on sentencing.
Liz Saville Roberts
I am grateful to the Minister for announcing a review by the Law Commission. Will she commit to considering in the review a wider range of protective characteristics that are recognised by some police forces, in particular my own in north Wales, which considers English and Welsh language as hate crime protected characteristics? Will she consider those in the review as well?
Lucy Frazer
I am happy to take that away and consider it. It is appropriate that when we look at protected characteristics we do not look exclusively at sex and gender characteristics, which as I said will be included. I am very happy to consider the point the hon. Lady makes and I will get back to her on that.
Secondly, I would like to deal with amendments 1 to 4, tabled by my right hon. Friend the Member for Basingstoke (Mrs Miller), in relation to purposes. Before turning to the substance of her amendments, I would like to pay credit to her for all her work in this area. For many years, as Chair of the Women and Equalities Committee and individually as a Member of Parliament, she has continually stood up for the rights of women. I am very grateful to her for highlighting important points to me on the Bill in Committee and more informally. The Department has considered very carefully the issues she raises and reflected on them. I will set out in due course how we propose to deal with the points she has very carefully and helpfully raised for consideration, but first I will deal with the substance of the Bill as drafted.
In the Bill as drafted, upskirting is criminalised if the perpetrator takes an image with the purpose of either sexual gratification or causing humiliation, distress or alarm to their victim. The reason those motivations are identified in the Bill is that they are used in other current legislation. Amendments 1 to 4 would remove those defined purposes, effectively taking away any mens rea to the offence and therefore criminalising the taking of all upskirting photographs whatever the circumstances. As I understand it from the explanatory statement and the speeches today, the intention behind amendment 3 is to ensure that those undertaking this sort of inappropriate behaviour for group bonding or financial gain are caught.
Mrs Miller
My hon. and learned Friend is making very clear when it is not acceptable to take an upskirting photograph. When is it acceptable to take an upskirting photograph, because by definition there must be some instances when she thinks it is acceptable?
Lucy Frazer
My right hon. Friend makes an important point. It is never acceptable to take a photograph up someone’s skirt without their consent, but we as legislators have a very important duty when we pass laws, particularly criminal laws. Criminal laws set out a criminal liability and give people a criminal record, which has significant consequences for their lives. We need to take that duty and that obligation extremely seriously, so not every act that is inappropriate becomes criminal.
Mrs Miller
I am speaking to a QC, so I am treading very carefully here. We have an obligation as Parliament to be crystal clear to the judiciary, as my right hon. Friend the Member for Hemel Hempstead (Sir Mike Penning) said eloquently in his speech. What the Minister just said is entirely confusing to me and possibly to the judiciary. If she is saying that there are examples where upskirting is allowable, she should be clearer. She cannot have her cake and eat it, if I may be so bold, and say that there are such instances, but there aren’t really.
Lucy Frazer
I am very grateful for what my right hon. Friend says. I have the highest regard for the work she has done and for the importance she places on this subject. When judges look at what people should and should not be criminally responsible for as a matter of law, they will look at the legislation we have passed. It is important that that is set out in the legislation and that the legislation is clear.
I will identify three reasons why accepting the amendments proposed by my right hon. Friend would make the law less clear, less certain and less advantageous. First, we believe it is likely that those who engage in upskirting for the purposes set out in the explanatory statement on amendment 3, which she outlined, will be caught in any event by the Bill as drafted. The hon. Member for Rotherham (Sarah Champion) said that we should think about a situation where someone takes an upskirting image to upload it to a website for financial advantage, and possibly catch it in the Bill. We think that it will be caught by the Bill as drafted, because in uploading the photograph to a website where people will pay for it, the person intends others to look at it to obtain sexual gratification. Equally, if someone took an upskirting image primarily for a laugh, they would likely be captured on the basis that the amusement was caused by the humiliation, alarm or distress that they intended the victim to feel.
Lucy Frazer
I will continue for the moment. If I have time, I will happily take further interventions.
The reason the Government do not favour widening the scope of the purposes is that a blanket liability risks criminalising those whom we do not want to criminalise. The amendments could bring in serious unintended consequences and risk bringing too many people within the scope of criminal law. As my right hon. Friend the Member for Basingstoke recognised, the amendments risk criminalising young children who are over the age of liability, which is 10, but who do not realise the impact of their actions and mean no harm when they carry out the act.
There is one further critical issue, which my hon. Friend the Member for Cheltenham (Alex Chalk) mentioned. If all the purposes were removed by amendments 1 to 4, there would be no need for the prosecution to bring forward evidence of the perpetrator’s motivation of sexual gratification. That could mean that those who posed a threat to the public were not put on the sexual offenders register, because the issue had not been determined in court.
My hon. Friend the Member for Christchurch and my right hon. Friend the Member for Basingstoke highlighted the small number of prosecutions that have been brought, and highlighted the fact that we anticipate only a few more in the impact assessment. The reason for that, as paragraph 29 of the explanatory memorandum makes clear, is that there are already laws that catch this activity. What the impact assessment identifies are the new offences that we think will be caught by filling this narrow gap.
The hon. Member for Rotherham rightly stated that we need to change the culture, not lock up more offenders, and education is an important part of that. We recognise, however, the value of the points that my right hon. Friend the Member for Basingstoke and others made, and therefore I am happy to confirm that the Government will review the operation of these offences after two years of their coming into force. This will include working with the police and the CPS and reviewing cases so far brought.
I will briefly deal with sharing. Amendment 5 would create a further offence of disclosing and sharing an upskirt image. We in the Department share the intention and desire to ensure that the sharing of images is robustly dealt with. The best way to do that, however, is not by way of an amendment to the Bill. Legislating in one area alone is not the right way forward. The Government are already looking at this wider issue. The Department for Digital, Culture, Media and Sport has already asked the Law Commission to look into online abuse.
The first stage of that review, which is an analysis of the existing law, will be completed in October, and I am pleased to confirm that following the completion of this first phase, the Ministry of Justice, working with DCMS, will ask the Law Commission to take forward a more detailed review of the law around the taking and sharing of non-consensual intimate images. This will build on the Law Commission’s review of online abuse and allow the Government to consider how to address this issue more widely, rather than just for upskirting images. As my right hon. Friend the Member for Basingstoke said, it is not appropriate to legislate in a piecemeal way.
My right hon. Friend also mentioned the Scottish changes in 2016. My understanding of them is that they were not specific to upskirting but created a separate offence in relation to the distribution of intimate images in the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. This is the broader approach that we in government want to continue.
In his amendments, my hon. Friend the Member for Christchurch suggests that offenders under the age of 18 not be put on the sex offenders register at all. We are concerned that there will be offenders under the age of 18 who need to be on the register, and only if we put them on the register will we protect victims who need protection now and in the future. He also suggests that we need to toughen up and put everyone on it who is over 18. That will diminish the effect of the register and not allow police resources to be concentrated. For those reasons, and in the light of the fact that we are offering a review of legislation after two years and a review of offences more widely, I hope that hon. Members will not press their amendments.
Stella Creasy
I thank the Minister for listening. For the first time, we are now saying as a country that misogyny is not a part of life or something that should be tolerated but something we are going to tackle. Her commitment to the Law Commission review of all forms of hate crime, including misogyny, and the need for new and existing resources to fund it, is really welcome and a positive reflection of what this place can achieve. We have just sent a message to every young woman in this country that we are on their side. On that basis, I am very happy to withdraw the amendment. I look forward to working with the Minister and the Law Commission review in taking this forward.
Clause, by leave, withdrawn.
Mr Deputy Speaker (Sir Lindsay Hoyle)
I remind the House that before Second Reading, as required by the Standing Order, the entire Bill was certified as relating exclusively to England and Wales and within legislative competence. The Bill has not been amended since then. Copies of the certificate are available in the Vote Office and on the parliamentary website.
Under Standing Order No. 83M, a consent motion is required for the Bill to proceed. Copies of the motion are now available Does the Minister intend to move the consent motion?
Lucy Frazer
indicated assent.
The House forthwith resolved itself into the Legislative Grand Committee (England and Wales) (Standing Order No. 83M).
[Sir Lindsay Hoyle in the Chair]
The Chairman of Ways and Means (Sir Lindsay Hoyle)
I remind hon. Members that if there is a Division, only Members representing constituencies in England and Wales may vote.
Resolved,
That the Committee consents to the Voyeurism (Offences) No. 2 Bill.—(Lucy Frazer).
The occupant of the Chair left the Chair to report the decision of the Committee (Standing Order No. 83M(6)).
The Deputy Speaker resumed the Chair; decision reported.
Lucy Frazer
I beg to move, That the Bill be now read a Third time.
I am very pleased to have this opportunity to speak. I cut short some of my comments on Report to ensure that I covered all the points. I would like to mention something that I did not say when I addressed the amendments tabled by my hon. Friend the Member for Christchurch (Sir Christopher Chope). It was suggested at one stage that he had opposed the legislation that will criminalise upskirting. I know that he never opposed it as a matter of substance, but objected to it as a matter of procedure, as we have heard today. Like other Members, he has made it clear that he supports criminalising this inappropriate behaviour. I spoke to him about his amendments, and I am very pleased to be able to address them at this stage.
I wish to highlight the fact that this is a simple but important piece of legislation with a very clear purpose—to fill a gap in the law in the prosecution of those who upskirt. I am grateful to Members across the House who have engaged with this Bill as it has progressed, and I hope that that spirit will continue in the other place. We can all be rightly proud of this Bill, and I would like to take this opportunity to thank everybody who has contributed to it.
There has been much discussion about the sharing of upskirting images. This is an important issue and one that we need to tackle as a Government. However, the Bill is narrow, and is not the right place to solve the many issues that have been raised. We will work with the Law Commission to look at legislation in relation to the sharing of intimate images.
We have welcomed the opportunity to debate the purposes of the Bill and whether it will capture all those who commit this offence. The Bill should catch those who should be criminalised and ensure that the reach of the criminal law does not extend to where it should not extend to. The post-legislative review in two years’ time will help ensure that the offences that the Bill will introduce are as effective and as comprehensive as intended. I am grateful to the House for its support.
I want to touch on the notification requirements, which are an important aspect of the Bill. It is not an issue that we take lightly, which is why we have committed to place those who commit this offence for reasons of sexual gratification on the sex offenders’ register, subject to certain thresholds to ensure proportionality, focusing resource on those who pose a significant risk to the community. I am confident that the Bill strikes the right balance in this regard.
We have had an interesting debate on hate crime. Although these are important issues, this Bill focuses on a narrow issue and it is not the right place to bring forward small, narrow legislation. However, hate crime is an area that the Government intend to look at closely, and we will be asking the Law Commission to conduct a review of hate crime.
Let me conclude by thanking once again and paying tribute to the hon. Member for Bath (Wera Hobhouse) for introducing the Bill and Gina Martin who first raised awareness of this important issue. I also wish to mention the important work of my right hon. Friend the Member for Basingstoke (Mrs Miller) both in her work as Chair of the Women and Equalities Committee and more broadly to ensure that the important issues in this Bill have been debated in this House. It is also important to recognise the contribution of my hon. Friend the Member for Christchurch who put forward ideas in relation to the sex offenders’ register. I am grateful to the hon. Member for Bolton South East (Yasmin Qureshi) and the Opposition for their support in getting this important Bill through the House so quickly.
Helen Whately (Faversham and Mid Kent) (Con)
I agree with my hon. and learned Friend about the good work done by campaigners in this area. I want to make one specific point: so often women and girls have been told that it is their fault if they are harassed, because it is their fault for choosing to wear a short skirt, for example. Does she agree that the Bill puts into law the important point that the person at fault is not the woman or girl who chooses to wear the short skirt, but the person who chooses to harass them and makes the poor choice to take a photo up their skirt?
Lucy Frazer
That is a very important point, and such legislation sends a message about how people should act in relation to women.
I was mentioning those who have played a significant part in this Bill’s progress. My hon. Friend served on the Committee, and I also thank the other members of the Committee; we had an interesting debate on the provisions before the recess.
I thank, too, the other parties’ spokespeople on justice: the hon. and learned Member for Edinburgh South West (Joanna Cherry), and the hon. Members for Belfast South (Emma Little Pengelly) and for Dwyfor Meirionnydd (Liz Saville Roberts). I worked closely with them as this Bill went through the House. I also extend my thanks to our hard-working Bill team, our private offices, our parliamentary private secretaries and the Whips, who can get overlooked at times. I also thank the Clerks and the other parliamentary staff for their sterling work and support on this issue.
It has been an honour to take the Bill from Second Reading through to today, particularly given the strong support from all parties across the House. I wish the Bill a safe and speedy passage through its remaining stages.
Yasmin Qureshi
I, too, want to place on record my thanks and appreciation to all Members who served on the Bill Committee. They were genuinely and passionately involved; it was not one of those cases where the Whips had forced them on to the Committee; Members were engaging in the debate and on this legislation. It is a small piece of legislation, but it is also important and does need to get on to the statute book as soon as possible. I am heartened to hear the news that the Minister was able to give that the Law Commission will be looking at this whole area of the law and at the recommendations. I hope that will be done as soon as possible and that we can implement its recommendations as soon as possible, too.
I also thank the House authorities, the Clerks and the Public Bill Office for all their work in putting the amendments together and their other tremendous work. I thank, too, my colleagues for being here today; a number of them do not need to be present, but they are still here because they are interested in this Bill.
Like the Minister, this is the first Bill I have taken from the beginning to the end in this House, and I, too, wish it a speedy journey and hope it will be on the statute book soon. It addresses a particularly vile and disgusting practice that needs to be brought to an end.
Mrs Miller
“Courage calls to courage everywhere”: that is what we have been saying so much this year, and I welcome the courage of Gina Martin to take action, of the hon. Member for Bath (Wera Hobhouse) for following it through, of my hon. Friend the Member for Christchurch (Sir Christopher Chope) for saying no and of the Minister for listening, and I welcome her clear undertakings today. I was reflecting that when I joined this place some years ago now in 2005, I do not think we would have passed a Bill like this. I think Parliament now has the courage to deal with these sorts of issues as well.
I welcome my hon. and learned Friend the Minister’s undertaking to have a Law Commission review of hate crime. That is an enormous step forward, and she is to be applauded for making sure that happens, as well as for making sure that we have a review of this legislation after two years and that we have a long overdue Law Commission review of non-consensual intimate images, which would make the need for this sort of piecemeal legislation redundant.
This Bill is the start of a process of creating a more coherent strategy for tackling non-consensual abusive images and, potentially, misogynistic crimes that create such a negative and demeaning environment for women and girls in this country. I wish the Bill well in its passage to the other place, and I hope that their lordships will take a further look at the issues that we have debated here today, to ensure that all victims have recourse to justice and that the Scottish experience in relation to outlawing distribution in the context of upskirting is adequately dealt with in the short term as well. I am sure that there lordships will look in great detail at the discussions that we have had today before the Bill reaches the Floor of their House.
Wera Hobhouse
From the very beginning of its journey, the upskirting Bill has been the result of brave individuals —particularly women—speaking out. They chose to speak out about a vile crime that was going not only unpunished but largely unnoticed. They courageously spoke out about their experiences, to try to draw attention to the gap in the law. The Bill is the result of their hard work, and each and every individual who helped this campaign to materialise into the legislation before us should feel proud.
It was back in February that I drafted the Bill, in time for International Women’s Day. As a female Member of Parliament, I felt bound to try to honour the day with a real change that would improve the lives of women across the country. It shocked me that upskirting was not already a specific crime. There was a victim from near my constituency of Bath who was just 10 years old, and it was clearer than ever that something had to be done. I spoke to victims and campaigners, notably Gina Martin, and together with her lawyer, Ryan Whelan, we put together a Bill that would ensure that taking a photo up someone’s skirt without their consent would become a specific sexual offence.
I am incredibly grateful for the work of my colleagues across the House. In particular, I would like to thank the Minister for Women, the Under-Secretary of State for the Home Department, the hon. Member for Louth and Horncastle (Victoria Atkins), as well as the Under-Secretary of State for Justice, the hon. and learned Member for South East Cambridgeshire (Lucy Frazer) and the Prime Minister herself, all of whom have been supportive throughout the Bill’s passage, from agreeing to back my original Bill to tabling another version when mine was blocked in June. Equally, I am grateful to the many Members who have supported and worked on the Bill, particularly the right hon. Member for Basingstoke (Mrs Miller) and the hon. Member for Walthamstow (Stella Creasy). To have the Bill supported by five parties and the Government—as well as my own colleagues, of course—demonstrates not only how import this issue is but what can be achieved when we work together.
There are many unnamed and unsung heroes in this place. By this I mean our staff who support us, and I want to put on record my particular thanks to my parliamentary assistant, Jess Clayton. Without her passion, her enthusiasm, her thoroughness—at one point, she knew a lot more about upskirting than I did—and her help and support, we would not be here today. So I thank Jess Clayton, my parliamentary assistant. Primarily, though, the Bill is a credit to all those who are seen as everyday ordinary women who have achieved something extraordinary. By campaigning, by pressuring those in power and by protesting—with pants!—when the campaign faced adversity, they have ensured that upskirting will become what it deserves to be: a specific sexual offence.
Sir Mike Penning
It is an honour to speak in this Third Reading debate. I pay tribute to the new Secretary of State for Justice—my neighbour and my roommate for many years—who has been involved in this issue for many weeks. I also pay tribute to the Under-Secretary of State for Justice, my hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer). We normally get a fair bit of notice when a Bill comes forward, and we argue our points in the pre-legislative scrutiny Committee. Instead of that, this has been a fast one. It is a real privilege to have taken part in this debate as a man, a father and husband, and to try to understand and get the public to understand what has been going on out there with this voyeurism and upskirting. I pay tribute to the Secretary of State and to the Minister and her colleagues for listening to the House, because the House is supposed to replicate what is going on out there in the country.
I am sure that the hon. Member for Walthamstow (Stella Creasy) is absolutely thrilled about the review of the general legal area. It will be a real move forward. The amendments were tabled in good faith. I am not legally trained—even though I was a Justice Minister—and I am still confused about when upskirting would be legitimate. I do not understand that, but perhaps their lordships will understand it better than I do.
At the end of the day, however, this Bill started as a private Member’s Bill that would have really struggled, no matter who was backing it. It would not have received the amendments or the debates, and we certainly would not have a Law Commission review. All that would never have happened without the time here this evening to debate the legislation and take it through.
Everybody has quite rightly paid tribute to individuals—those who have tabled amendments, served on Committees and so on—but we should be paying tribute to this House, because without the various roles in this pluralistic House the democratic process would not happen. It does not happen every day, and it is rare that we are in complete agreement. I agree with the Opposition spokeswoman on many things, but it is good that she is as happy as we are for this legislation to go to the other House. It is not yet finished and there will be quite rightly be a lot of scrutiny in the other House, which is there to scrutinise and improve, not to block, and I hope that the Bill receives Royal Assent soon. We can look at the reviews that come forward, and everyone is certainly looking forward to the Law Commission review. This is a good day for democracy and a good day for this House.
Sir Christopher Chope
I say “Hear, hear” to what my right hon. Friend has just said. This is a good day for democracy. I pay tribute to the Minister for the understanding that she has demonstrated throughout the course of this debate and for her kind personal remarks about my motivation, which has been so misunderstood—deliberately by some and in ignorance by others.
Owing to the shortage of time on Report, the Minister was unable to take my intervention when she was responding to my amendment 6. However, I know that on Third Reading we discuss the content of the Bill, rather than rejected amendments, so I want to look at the part of the Bill that my amendment was intended to address.
My hon. and learned Friend slightly misrepresented what I was proposing, because, far from wanting to weaken the Bill, I was suggesting that, as presently drafted, clause 1(4) will not ensure that sufficient numbers of people who are guilty of voyeurism with the motivation of sexual gratification actually reach the sex offenders register. The Bill is currently drafted in such a way that someone can be guilty of voyeurism for the purposes of sexual gratification, but they will not go on the sex offenders register if they are under 18 unless they have been sentenced to a term of at least 12 months’ imprisonment, which is extremely unlikely and de minimis.
The more important aspect is that the Bill as currently drafted means that someone will not go on the sex offenders register even if they have committed an offence of upskirting with the motivation of sexual gratification unless the victim was under 18 or the offender has been sentenced to a term of imprisonment or detained in a hospital or made the subject of a community sentence of at least 12 months. The offence of voyeurism with the intent of sexual gratification should be linked directly with the sex offenders register, and I do not understand why the Government have been unwilling to tighten that up in the way that some of us would have wished. I hope that that will be considered in the other place.
Like my right hon. Friend the Member for Basingstoke (Mrs Miller), I hope that the other place will also look carefully at the restrictions that are currently in proposed new section 67A(1)(b) of the Sexual Offences Act 2003, which is found in clause 1(2) and relates to the necessity of proving a purpose in order to establish guilt. My hon. and learned Friend the Minister talked about mens rea—I am not sure whether, in due course, we will get on to “womens rea”—and I would like her to explain how it is that, under the current common law offence of outraging public decency, for which she says this Bill is filling a geographical gap, there is no requirement for mens rea. That common law offence is on the statute book, so if there is no requirement for mens rea in relation to that offence, why are we saying that the geographical gap in the law can be filled only by legislation that includes a requirement of mens rea and a requirement to prove the motive of sexual gratification in particular, and other motives besides?
As my right hon. Friend the Member for Basingstoke asked, which instances of voyeurism that are currently subject to the common law, and that can be prosecuted under the common law offence, will not be covered by this Bill in the geographical location that is not covered by the offence of outraging public decency? It does not seem to me that my hon. and learned Friend the Minister has addressed that conundrum, and in the absence of its having been dealt with in this House, I hope it will be dealt with in the other place.
My hon. and learned Friend has offered a review of the legislation after two years, which is obviously better than nothing, but with the greatest of respect, the best thing for her and her Department to do is to review the Bill between now and when it is debated in the other place—that will hopefully be a lot sooner than two years—so that we can try to get some consistency. As a leading counsel, she will know that, where a statutory offence is introduced, it trumps a common law offence as a matter of principle. Surely the Government’s motivation is to simplify the law in this area and to ensure that all offences of upskirting are dealt with under the Bill, rather than under the common law. It would help to spell that out, not least for the benefit of police officers and the prosecuting authorities.
If that is the intention—I drew an analogy earlier with the offence of using a mobile phone while driving compared with the offence of driving without due care and attention—there is a lot to be said for having the specific offence in the Bill cover all instances of upskirting. If and when the Minister addresses the issue, perhaps she will come up with an answer to the question asked by my right hon. Friend the Member for Basingstoke of what offences of upskirting she believes should not be subject to any criminal sanction. That is our challenge to my hon. and learned Friend the Minister.
In all the correspondence I have received, people feel that all upskirting offences should be subject to the criminal law and criminal sanctions, irrespective of motive. If there are to be offences that are not subject to criminal sanctions, we need to spell them out squarely and fairly, which has not been done so far.
I welcome the scrutiny the Bill has received so far, the way in which the Minister has accepted the spirit of new clause 1 and her willingness to look again at other issues, and I am happy to support Third Reading. But I hope that when, eventually, the Bill returns to this House, the Government will accept amendments made in the other place that make it even better.
Question put and agreed to.
Bill accordingly read the Third time and passed.
Voyeurism (Offences) (No. 2) Bill
Thursday 6th September 2018
(5 years, 7 months ago)
Lords ChamberRead Full debate Voyeurism (Offences) Act 2019 Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 5 September 2018 - (5 Sep 2018)
Voyeurism (Offences) (No. 2) Bill
Tuesday 23rd October 2018
(5 years, 5 months ago)
Lords ChamberRead Full debate Voyeurism (Offences) Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 5 September 2018 - (5 Sep 2018)
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, the Bill addresses a small but important gap in the current law which means that not all circumstances in which upskirting occurs can be prosecuted. Under the current law, there is a risk that an instance of upskirting which takes place somewhere which is neither private nor fully accessible to the public—for example, a school or office building—would not be treated as an offence. Equally, an instance of upskirting which occurs in a place where there are not two or more people capable of witnessing it—for example, an empty train carriage—would also not be covered by the existing offence of outraging public decency. The Bill ensures that this unpleasant behaviour will now be an offence in such circumstances and that those who upskirt for sexual reasons will be made subject to notification requirements—more commonly known as being placed on the sex offenders register, subject to certain thresholds. This strengthens the existing law and ensures that the consequences are proportionate and effective.
The Bill is not designed to address wider issues that have implications beyond its scope and that require more detailed analysis and cross-government work. Instead, it is intended to be narrow, clear and focused on the issue of upskirting, on which there is clear cross-party agreement.
The Bill will insert two new offences into the Sexual Offences Act 2003 to make the practice of upskirting a specific criminal offence. It will capture instances where, without consent, a person operates equipment beneath someone’s clothing to observe, or to allow someone else to observe, their genitals or buttocks, whether exposed or covered by underwear. It will also capture instances where, without consent, a person records an image beneath someone’s clothing in circumstances where the genitals, buttocks or underwear would not otherwise be visible. The offences will apply where the offender had a motive of either obtaining sexual gratification or causing humiliation, alarm or distress to the victim. This will capture all whose conduct should be criminalised. Those who commit upskirting for reasons of sexual gratification will be made subject to notification requirements in line with the sentencing thresholds which apply to existing voyeurism offences.
As I have said, this is a narrow Bill designed to address a small gap in the existing law. A number of issues were raised in the other place: the sharing of non-consensual intimate images; the purposes for which an upskirting image is taken; making all offenders over 18 subject to notification requirements regardless of purpose; and consideration of hostility towards a victim due to their gender being treated as an aggravating factor for sentencing purposes. I am pleased to say that all amendments on these issues were withdrawn following the Government’s response at Report, and the Bill passed through the other place without any amendments. I hope that we can do the same here. However, I thought it would be helpful to set out the Government’s position on these issues.
First, a number of Members in the other place raised concerns about the distribution of non-consensual intimate images, and amendments were tabled to criminalise the distribution of upskirt images. This is clearly an important issue for the Government to consider. But this Bill is not the place to legislate on this particular issue. It cannot be right that we change the law on sharing and distribution in such a narrow area. We must take our time to consider and tackle this issue in the most appropriate way, looking closely at all the related issues that arise and working collectively across government. That is why we announced that we will work with the Department for Digital, Culture, Media and Sport and the Law Commission to review the law around the taking and sharing of non-consensual intimate images, building on the existing Law Commission review of online harm.
There was also active debate in the other place around the purposes requirement in the Bill, and in particular whether the purposes are sufficiently broad to capture most situations in which people choose to upskirt. We have been clear that the offences in this Bill capture those who commit this unpleasant crime in a wide range of circumstances, whether for sexual gratification, or to humiliate, alarm or distress an individual. We are confident that this will include cases where someone takes an upskirting photo for what is sometimes termed “a laugh” or for financial advantage, because it is highly likely that, by doing so, they intended to humiliate, distress or alarm their victim. We must remind ourselves that the Bill was drafted to address a gap in the law in relation to the circumstances in which an act of upskirting takes place—to ensure that this behaviour is covered wherever it takes place, be it in public or in private—with effective and proportionate consequences.
I am confident that the two purposes for which an offence can be committed are appropriate, straightforward and familiar to criminal justice agencies. Removing these purposes risks making the law less clear, leading to potential inconsistencies in how this law is to be applied within the criminal justice system. We must also remember that the new offences will work alongside existing offences, such as outraging public decency, to complement and strengthen the criminal law. We know that there have been successful prosecutions for upskirting under that offence where a person commits an act of such a lewd, obscene and disgusting nature, in public, and with at least two people capable of seeing it that is capable of outraging public decency. As with the new upskirting offences, there are no exceptions under the OPD offence in relation to actions of the paparazzi.
It is of course important that we continue to keep the law under review, which is why we committed in the other place to undertake a post-legislative review in two years’ time to assess how the proposed new offences are working in practice.
Some questions were raised as to whether notification requirements should apply to those aged under 18 years. It is important to recognise that notification requirements are used to assist the police with the management of sex offenders in the community. They are not intended as an additional punishment or penalty. The Bill as drafted will make offenders subject to notification requirements if they have committed an act of upskirting to obtain sexual gratification and the sentence given by the court reaches the relevant sentencing thresholds. These are set at a level which will ensure that they capture only those who are likely to pose an ongoing sexual risk to the community, such that they should be monitored by the police accordingly. Certainly, we must be careful not to overcriminalise children. But we believe that the Bill is correct and proportionate in how it deals with those under the age of 18 who commit this offence for reasons of sexual gratification. The sentencing threshold will mean that only the most serious offenders under 18, who also have a sexual motive, are made subject to notification requirements.
We also saw debate on whether to create an aggravating factor for sentencing where the commission of the offence was motivated by hostility towards the victim based on their gender. I reassure noble Lords that there is a range of aggravating factors that a court can take into account when considering the seriousness of an offence for the purposes of sentencing. This includes aggravating factors set out in sentencing guidelines, such as the location of the offence, the deliberate targeting of a vulnerable victim and the physical or psychological effect on the victim. It also includes those aggravating factors set out in statute—race, religion, sexual orientation, disability, and transgender identity.
In relation to gender specifically, as noble Lords may be aware, this topic garnered a lot of attention and stirred up a debate about whether misogyny and, indeed, misandry should be treated as hate crimes. It is important to highlight the issue and recognise that, while this offence is not specific to women, it is likely that women will most often be the victims of this behaviour. But this narrow Bill is not the right place to make that amendment because statutory aggravating factors do not usually apply to only one or two offences, as would be the effect of such an amendment. It would make the new offences inconsistent with all other sexual offences, and there is no convincing rationale for this proposed amendment to apply specifically and only to these offences.
We are of course concerned about ensuring that our hate crime legislation is up to date and consistent. We have therefore asked the Law Commission to undertake a review of the coverage and approach to hate crime legislation and to consider whether there should be an expansion of protected characteristics including, for example, in relation to gender. This will build on the Law Commission’s previous work to ensure that all aspects of hate crime are properly considered and that our courts deal with them in the most appropriate and indeed the most consistent way.
There is clearly considerable interest in this Bill and the important issue which it seeks to address. But let me be clear: the Bill is specifically targeted at addressing a narrow gap in the law and is not the vehicle to legislate for other wider issues. While it is important to discuss and debate these wider issues, we must do so when the right opportunity arises. I would be grateful for the support of noble Lords in ensuring that the Bill passes through the House quickly so that we are able to begin punishing those who commit this type of crime as soon as possible. I commend the Bill to the House, and I beg to move.
Baroness Gale (Lab)
My Lords, I thank the Minister for his opening remarks and for bringing this Bill before us today. As he has said, it is a narrow Bill, but it does have the support of the Government. I am sure that we will support everything that is in it, but while it has been welcomed in many quarters, it is not entirely without criticism. Nevertheless, it is a step forward in protecting women and girls from this unwanted behaviour which can be humiliating and degrading to the victim.
Women’s Aid has given the Bill a warm welcome. Its chief executive has said:
“By condemning this form of abuse, we can send out the powerful message that upskirting is unacceptable and perpetrators of this crime will be held to account”.
Upskirting may not be something new, but today with practically everyone owning and carrying a camera in their pocket, and with the rapid spread of mobile technology, the reach of the internet and the use of social media, it is easy to take images and distribute them. That is no doubt why there has been such a rise in this appalling behaviour, and it is time that the taking of such images without the knowledge or consent of the person concerned is made an offence. Victims say that image-based sexual abuse causes shame, humiliation and significant distress. It can have a severe impact on mental health which can be long lasting. I believe that the Bill will be a big step forward in tackling a loophole in the law.
Concerns have been expressed that the Bill will criminalise upskirting only if the perpetrator does so to obtain either sexual gratification for himself or others, causes humiliation and distress, or alarms the victim. This does cover some but not all motivations as the perpetrator may commit the crime for financial gain or, as the Minister said, for “having a laugh”. One can imagine how that can happen when such images are shown around a group of male friends.
Cross-party amendments were tabled in another place to criminalise the distribution of upskirting images. This Bill would criminalise only the taking of such images but not their further distribution, which often happens. Perpetrators share these images with friends or on social networks, causing further humiliation and distress to victims. By not criminalising the distribution of such images, I believe that we fail to recognise victims’ experiences, which adds to their distress and embarrassment. I know that the Minister has talked about this, but I would ask him to look at this again when we move on to the Committee stage.
The excellent briefing from Women’s Aid points that out. It feels that the focus on the perpetrator’s motivation should be removed to ensure that all victims of this crime are treated consistently and believes that the legislation needs to recognise that non-consensual images are created, distributed and shared in many ways. I understand that the Government have concerns that this could risk unintentionally criminalising people. Again, Women’s Aid said that defences would remain for those accused who may have taken the image by accident or for law enforcement reasons.
I welcome the fact that the victims will be granted anonymity. This is essential to ensure reporting of the crime and should encourage women and girls to come forward. It is well known that victims of sexual offences can be reluctant to come forward. I hope that this will go some way to helping them to do so, and that the police and other bodies will have the necessary training and resources to deal with this new offence.
In its briefing on the Bill, the Equality and Human Rights Commission mentions the Istanbul convention, urging the Government to ratify it. In fact, it states:
“We urge the UK Government to urgently ratify, fully resource and implement the Istanbul Convention”.
I wholeheartedly agree. Article 40 of the Istanbul convention requires,
“the necessary legislative or other measures to ensure that any form of unwanted verbal, non-verbal or physical conduct of a sexual nature with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment, is subject to criminal or other legal sanction”.
When ratified, Article 40 would certainly cover the measures in the Bill before us.
The preventing and combating violence against women and domestic violence Act 2017, which I took through your Lordships’ House, requires the Government to publish an annual report, which is due by 1 November each year. The first report was published on 1 November 2017. It said:
“The Government will set out a timetable for ratification in line with the requirement of section 1 of the Preventing and Combating Violence Against Women and Domestic Violence (Ratification of Convention) Act 2017 in due course”.
Can the Minister say when that will be? When does he expect the second annual report to be published? It is due by 1 November, which is in nine days’ time.
I mention the Istanbul convention because it is so relevant to our debate. I am pleased to hear the Minister say that the Government will keep the law under review and are committed to undertaking post-legislative scrutiny in the next two years to assess how the offences are working in practice. Everyone would welcome that as it would give us an opportunity to see how well the Bill is working and whether it needs any amendment. I look forward to the Minister’s response and to taking part as the Bill progresses towards becoming law.
Baroness Burt of Solihull (LD)
My Lords, I am absolutely delighted to welcome the Second Reading of what has become colloquially known as the “upskirting Bill”. It was introduced in the Commons in June through a Private Member’s Bill by my friend and colleague Wera Hobhouse following an enormously successful campaign by Gina Martin, who obtained over 100,000 signatures in her bid to amend the current law. That Bill was objected to by Sir Christopher Chope —a practice he undertakes with monotonous regularity in the Commons. Many an excellent Bill has fallen because of his demand to see what he regards as proper due process. However, on this occasion he inadvertently did us all a favour. The outcry was so great that the Government agreed to bring in the Bill themselves—hence our all being here today.
Upskirting has been an offence in Scotland since 2009, so it is high time the offence was introduced in England and Wales. Of course, Northern Ireland goes its own way—or it would if Members of its Assembly could agree to work together, put the people first and get on with some legislative work.
The Equality and Human Rights Commission welcomes the Bill—I think the noble Baroness, Lady Gale, has been reading the same briefings as me—and comments that it is a further step towards meeting our commitments under the Istanbul convention. Like the noble Baroness, I would be grateful if the Minister could explain in his remarks what is holding up the ratification process.
But why is the Bill necessary? Professor Clare McGlynn of Durham University put it thus:
“Sexual offences are about power and control, punishment, sexual entitlement, anger, entertainment, as well as sexual gratification”.
A number of speakers at the Commons stage, as well as Professor McGlynn, recommended that the Government remove the motivation requirement from the Bill. They say—and I agree—that we need to concentrate instead on the harm caused to victims. And the harm is real: shame, humiliation, distress, fear and anxiety, paranoia, depression, trauma, panic attacks—the damage is endless. What does motivation matter when the outcome is one of the above?
The qualifying motivations in subsection (3) seem to me and others a little thin. The Government’s point—which I do see—is that the type of motivation is relevant to whether the perpetrator should be on the sex offender register. Anyone doing this for sexual gratification should be recorded on it. But the question remains about whether the motivations covered in the Bill leave room for sneaky defence barristers, seeking a legal loophole, to argue that their clients’ actions are not within the scope of the law.
The EHRC prefers to see motivation out of the Bill altogether, but argues that there is a question mark over two important areas which should at least be recorded as motivations on the face of the Bill. These are “financial gain” and “entertainment or amusement”. The Minister may well see amendments on this coming his way during the course of the Bill, but I am sure that the House would be grateful if he would comment in his final remarks today. “Lads having a laugh” might cut no ice with most judges—but why take the risk?
Financial gain is very real. One website hosting and exchanging images is reportedly worth £30 million. Let no one profit from this kind of humiliation and distress. Distribution of these images is an area called into question by Women’s Aid. As I understand it, the legislation criminalises the taking of an image but not the further distribution of it, which is a common occurrence. So if we fail to criminalise distribution, we fail to recognise the further distress and humiliation that victims suffer. Any possible amendments also need to include threats to distribute— a mechanism of coercive control. Women’s Aid points out the terrible damage this could cause to women of BME origin, where cultural norms may lead to their being disowned, ostracised and even killed. For the victim, this is about as far away from “having a laugh” as you can get.
I welcome the fact that upskirting will come under the Sexual Offences Act, which will give victims the right to anonymity. Studies have shown that without this right, in cases of rape, the vast majority of victims would not report. One area where this right is not given—because it does not come under the Sexual Offences Act—is for so-called revenge porn. A BBC investigation found that in about one-third of revenge porn cases where victims withdrew from prosecution, lack of anonymity was a key factor. So an amendment could be coming the Minister’s way that would give the right to anonymity to victims of all image-based sexual violence, particularly revenge porn, Photoshopped images and sextortion—which is sexual extortion. Why should not all of the above be treated as sexual offences? Perhaps the Minister could comment on this.
Women today suffer from a vast array of forms of sexual harassment. During research for this debate, I learned more than I ever wanted to know about sexual cybercrime. One in 10 women has experienced some form of cybercrime since the age of 15, including cyber harassment and stalking, use of GPS to track their movements, online rape and death threats, and doxing—which I learned is disclosing private or identifying information to the world. Only this morning, the Women and Equalities Select Committee recommended government action on street harassment and on watching porn in public places. It is sickening, and it all serves to promote the continuing unequal relationship between men and women.
We on these Benches greatly welcome the Bill. We thank the Government for taking prompt action after the attempted sabotage of the original Private Member’s Bill by Sir Christopher Chope. We also welcome the Law Commission review of whether misogyny should be included alongside other protected characteristics in law. I personally would welcome misandry also being included. After all, what is sauce for the goose is sauce for the gander.
Baroness Barran (Con)
My Lords, I speak in this debate with mixed feelings. While it is a great honour to be part of the Second Reading of a Bill which seeks to limit the impact of violence against women and girls, it is also a sadness that we need this legislation, since it reflects the way in which gender-based violence is evolving, with new technology and social media in particular. Like others, I want to acknowledge the commitment of the honourable Member for Bath, my home town, in campaigning for this law, and of Gina Martin for her courage in bringing this issue forward.
As we have heard today, and in the evidence given to the Bill Committee in the other place, the Government are seeking to close a loophole in the current legislation in relation to where an offence of upskirting takes place; namely, a place that is neither private nor public, such as a school, festival or, as we have heard, public transport. There has been considerable debate about whether the motives of sexual gratification and humiliation of the victim are appropriate, with strong arguments made—including by the noble Baronesses, Lady Gale and Lady Burt, and by the highly respected Professor Clare McGlynn from Durham University—that these should be extended or removed, focusing rather on the impact of the crime on the victim.
Perhaps I may commend one approach to the Minister for consideration which, without broadening the specific list of motives, would bring greater attention to the impact on the victim. It applies particularly in relation to the motive of humiliation and would be to use language in the Bill that mirrors that in the Protection from Harassment Act. To paraphrase that Act, it states that the person whose conduct is in question ought to know that it will cause, in this case, humiliation or distress if a reasonable person in possession of the same information would think that the conduct would cause humiliation and distress. I would be grateful if my noble friend the Minister would comment on this approach, because I think it would really reflect, quite simply, the impact on the victim.
I am also sympathetic to those who have sought greater clarity in relation to the distribution of images secured via upskirting. Arguably, we can all agree that this is where the greatest harm is wrought. As has been mentioned by the noble Baroness, Lady Burt, where the revenge porn legislation would have some applicability in relation to distribution, it would help if the Minister could confirm that the anonymity of the victim as it would apply under the sexual offences legislation would still apply in the event of a further prosecution under that law. Along with other noble Lords, I look forward to further debate on that issue in future.
I want to say one word about vulnerability. We know, particularly from research by Professor Betsy Stanko, that most sexual offences happen to women who are already vulnerable in some way, so I hope that great care will be taken to establish, in those cases where it is alleged that consent has been given, that this has not been extorted through threats or coercion, particularly of a vulnerable victim.
Returning to the scope of the Bill, I suggest to noble Lords that part of the unease that has been expressed on all sides of this House and by those who have already debated it in the other place simply reflects the size of the gap between the scale of abuse, using images without consent, and the number of convictions that are expected to arise as a result of passing this Bill—which, if I have understood correctly, is about 30 a year. We have seen that in Scotland there have been only a handful of cases convicted annually. So, along with my noble friend the Minister, I look forward very much to the publication of the Law Commission’s recommendations about online abuse and to future legislation on the use of images without consent. I welcome very much, with other noble Lords, the Women and Equalities Committee’s recommendations this morning in that regard.
I also want to reflect on the fragmented nature of the legislation in this area, which in some ways mirrors that in the field of domestic abuse, with which I am particularly familiar. It has been argued that many of the different permutations of abuse in this category of offending are covered by existing legislation, but we know from domestic abuse that where the legislation is very fragmented, it is often poorly understood and inconsistently implemented. It would be very helpful at some point if we could bring the offences together in one place, both for police and prosecutors and, equally importantly, for the general public, so that it is clear and easy to understand.
Finally, beyond the specifics of the Bill we face a tremendous task, which is to work out how we can change public attitudes, which continue to be so accepting of violence against women and girls, of which voyeurism is simply one example. I found the evidence from Lisa Hallgarten of Brook a helpful reality check in this regard. We need to be realistic about what is happening on the ground and as she pointed out, schools are not even equipped to deal with sexual bullying, sexual assault or domestic abuse among their pupils, let alone upskirting. I recently heard from Plan International UK about the extent of sexual harassment of young girls in this country. Its survey showed that two-thirds of girls aged between 14 and 21 have experienced unwanted sexual attention or harassment in a public place, with 15% of them having been touched, groped or grabbed. This is happening every day, on every street and on every bus.
We are also all very familiar in this House with the extent of wider sexual and domestic violence and its prevalence. So we all look forward, I am sure, to hearing more about how this will be tackled in the forthcoming domestic abuse Bill and the updated violence against women and girls strategy. In the meantime, in common with other noble Lords, I feel that this Bill to address upskirting is definitely a helpful step forward, but I hope that my noble friend the Minister agrees that there is still much to do beyond this to address the full spectrum of violence against women and girls, particularly in the area of prevention and public attitudes.
Baroness Barker (LD)
My Lords, I thank the noble and learned Lord, Lord Keen of Elie, for the clear way in which he introduced this legislation. I too congratulate my colleague in another place, Wera Hobhouse, on taking the opportunity to legislate on an offence which is at the moment rarely prosecuted—yet the behaviour seems to be growing. She has given us the opportunity to put together legislation which, if we get it right, will create a deterrent. That will be an important thing for us to do.
Before turning to the specifics of the Bill, I want to commend the Government for taking up this matter when Wera Hobhouse’s Bill was hijacked in another place. I simply make this observation: by their nature, Private Members’ Bills often deal with matters which are of high significance to very few people. There is a group of Conservative MPs, mostly white men, who take pride in shooting down Private Members’ Bills like some Friday morning sport. That is nasty. The Prime Minister’s swift response is welcome but it really should not be necessary.
I have been discussing this Bill in my office, like many other Members of your Lordships’ House, I imagine—particularly the women Members. My noble friend Lady Hamwee told me that she remembered being shocked while she was a student at Girton, which is three miles outside Cambridge, when female students were warned that someone who was giving lifts to hitchhikers was using a mirror on his car floor to look up the skirts of passengers. There are many reasons not to hitchhike but that was another one, so this is not a new issue. It is just that the role of technology has made a qualitative difference. Today, this crime has the potential to cause much greater harm to victims because images can be taken more easily and shared more widely than in the past. That compounds the violation of privacy that takes place at first. The points made by my noble friend Lady Burt on behalf of Women’s Aid were striking and to the point.
This is not a political Bill; we all share the ambition to draw up legislation which offers the greatest possible deterrence. Within that, I think it is agreed that we need legislation which is sufficiently robust in the punishments it includes but also has the flexibility to enable law enforcement agencies and so on to make it work in practice. The Bill comes to your Lordships’ House having been debated in another place under its Public Bill Committee procedure. If only for the ease of reading its discussions in Hansard, I prefer the way that is done in another place. I found it very helpful to hear people such as Gina Martin, who was a victim of this vile behaviour, set out in some detail the reasons why she and her legal team came up with their draft legislation, and the assumptions that they put behind it. That having been done, your Lordships will have the opportunity to test during our deliberations whether the definition—the technical specification—of this offence of voyeurism, as set out in Clause 1(2), is, first, sufficiently comprehensive now and, secondly, whether it will stand the test of time. We live in an age when technology changes very rapidly.
In the Public Bill Committee, it was also helpful to understand the context in which the Bill sits and the work of the Law Commission in looking at changes to definitions of hate crime, but particularly to understand the difference between this Bill and the Bill on revenge porn. I was involved in a minor way in the passage of the revenge porn legislation, along with my noble friend Lord Marks. It was interesting to read that victims of that offence do not have a right to anonymity whereas this offence will be a sexual offence and therefore victims will have an automatic right to anonymity. It is somewhat difficult for some of us who are not lawyers to understand quite why two offences which appear to be very similar in perpetration and effect should be treated so differently. Revenge pornography was made an offence in 2014 and about 500 cases a year are successfully prosecuted but hundreds more are not. I am sure the Minister will explain to us why that is not a sexual offence but upskirting will, under the Bill before us, be a sexual offence. Given the difference, I hope that over the coming years the Government will pay close attention to the rates of charges and successful prosecutions which are brought under the different pieces of legislation to see whether there is evidence for anonymity for victims.
I too was interested in the words of Lisa Hallgarten, the head of policy and public affairs at Brook. A lot of what she had to say was about the way young people are unsure about their right to privacy and about what invasion of privacy is and the implications of that not only for prosecutions under the Bill but for schools when handling instances that may happen. Teaching young women what their rights to privacy are and young men what constitutes an invasion of privacy is important.
This Bill comes to us today when the Women and Equalities Committee has produced its report on sexual harassment. It said:
“Laws alone cannot address the cultural acceptability of sexual harassment, most of which is unreported, but they have an important part to play, including in responding to new forms of public sexual harassment facilitated by technology. We welcome legislation on ‘upskirting’ and ‘revenge porn’, but at present, the Government is too often racing to catch up with these developments”.
I congratulate the Government on taking one more step and I hope we will make this legislation get to the statute book with some alacrity so that fewer women are victims of this horrible crime.
Lord Judge (CB)
My Lords, I am grateful to be allowed to intervene at this stage of debate. I apologise for not putting my name down. As noble Lords have allowed me to speak, I shall do so briefly.
I welcome the Bill. It addresses a problem created by the availability of modern technology. It is a good Bill: we know exactly what action is being criminalised; we know exactly what the intention of the perpetrator is. There is no messing about. It is a specific intention. We also know that it must be done—again no messing about—without the consent of the victim and without a reasonable belief in that consent.
I listened with care to some of the observations that have been made, and I shall make this point: any crime of this kind has to be dealt with by way of sentence. It has been an aggravating feature of any kind of sexual offence that the motivation is revenge. It has been a serious aggravating feature of any kind of sexual offence that the objective is money, gain or pressure. It is perfectly obviously an aggravating feature of any sexual crime that the victim has been chosen for whatever reason, whether sexual orientation, trans- genderism or whatever. Those features can be taken into account by the sentencing judge, assuming that it can be established that the offence is to obtain sexual gratification or to humiliate, alarm or distress. Those are very wide words. It would be difficult to think of many situations in which, we will say, a man decided to upskirt without having the purpose of humiliating his victim, probably alarming her and almost certainly distressing her.
There is a gap here that I would like the Minister at least to consider: the Bill does not cover distribution. The purpose of the taker of the upskirt may be to distribute it but the Bill does not cover the consequences if he and others do so. There is no distribution for fun—that cannot be so—but let us just call it “harmless fun” in the sense of what we mean by humiliation. That ought to be an offence by someone else who did not commit the act of obtaining the upskirt image. Certainly there should be an offence that covers the distribution of the image for financial gain. To close that gap, there needs to be consideration of all the matters that have been raised in the speeches today but also a specific offence relating to those who choose to distribute the results of someone else’s foul work.
Lord Marks of Henley-on-Thames (LD)
My Lords, upskirting is nasty, predatory, degrading and invasive behaviour. It inflicts significant emotional damage upon its victims, as described by my noble friend Lady Burt and others. While, as my noble friend Lady Barker pointed out, it has similarities to revenge porn, which we rightly and successfully criminalised in 2015, upskirting is markedly different from revenge porn in that its victims are generally unknown to the perpetrators and suffer this appalling unpleasantness, which may leave them with serious emotional scars for years to come, just because they happen to be in the wrong place at the wrong time.
It is significant and welcome that there has been absolutely no dissent in this short but excellent debate on criminalising upskirting. I too pay tribute to my honourable friend Wera Hobhouse MP for the skill and determination with which she pioneered her Private Member’s Bill and secured the Government’s support that has led to this Bill. I thank the Government for taking it on and the Minister for the clarity of his introduction.
I also pay tribute to Gina Martin. She was enjoying a visit to the British Summertime Festival, a 26 year-old woman with no political or legal experience, when a man who was with a friend took a photo up her skirt on his phone and then very publicly texted it to all his friends in the surrounding crowd, causing her considerable distress. The police attended and told her there was nothing that she or they could do because upskirting was not an offence in England and Wales, unlike in Scotland, where it was criminalised in 2009. That prompted Gina Martin to launch and champion a very successful petition and to campaign vigorously to make upskirting an offence. She has been an example to us all of what individual campaigning can do to secure real change.
What has horrified many has been not just that upskirting has become so widespread but that it has been accompanied by the development of large numbers of websites where upskirting images have been publicly displayed. This was mentioned by my noble friend Lady Burt, the noble Baroness, Lady Barran, and others, while the noble and learned Lord, Lord Judge, talked about dealing with the question of distribution. We must be absolutely sure that legislation captures this type of behaviour.
I turn to the detail of the Bill. The first issue for consideration has been raised by all noble Lords: whether it is necessary to specify that to constitute an offence the upskirting must be carried out either for the sexual gratification of the perpetrator or another, or in order to humiliate, alarm or distress the victim. The Government maintain that, given the lack of consent requirement in the Bill, all non-consensual upskirting is likely to be committed for one or other of those specified purposes. I acknowledge, and on this I share the view of the noble and learned Lord, Lord Judge, that it is quite difficult to see circumstances where upskirting will be committed without one of those specified purposes in mind. However, I remain to be convinced that there will never be such circumstances or that the specified purposes will always be capable of proof to the criminal standard.
As one might expect, I do not share my noble friend Lady Burt’s distrust of sneaky defence barristers. Defence counsel have a duty to advance all defences available to their clients. For my part, I would not want to offer those who ought to be convicted a gratuitous and undeserved route to acquittal by erecting artificial hurdles for the prosecution to surmount.
My concern is that there may be incidents of upskirting where the perpetrator could argue that he had no view to his own sexual gratification or that of anyone else, no intention of humiliating, alarming or distressing the victim and that his interest was mere entertainment or banter with friends.
We should remember the important fact that any victim who is aware of the upskirting and of the distribution of the resulting images, or even of the risk of distribution, will inevitably suffer humiliation, alarm and distress. But intention to cause it may be difficult to prove. Should we be requiring the prosecution to prove it, allowing a defendant to argue, for example, that his victim was entirely unaware of the incident? For my part, I would regard any such defence as of absolutely no merit, but I can foresee such defences being run and doubt that they should be available.
The question of financial gain arises in this context also. If the perpetrator’s purpose is financial gain from distributing images on websites, will the prosecution always be able to prove that it follows that his purpose was the sexual gratification of another person or persons looking at the websites? That is apparently the Government’s argument, but I remain to be convinced that it is right, or, even if it is right, that it is necessary to import that somewhat complicated and convoluted logic into the Bill. If the purposes provision is to remain in the Bill, the question arises why financial gain and entertainment should not be added to the purposes specified in the Bill.
Viewing the question from the opposite point of view to that of the Government, if all non-consensual upskirting would fall within the specified purposes, what is the point of specifying them? The Minister argues that only upskirting for sexual gratification should lead to notification—that is, entry on the sex offender register—so that purpose and others must be distinguished. I can see that. However, the Bill could be simply amended to provide that notification followed only where the offence was committed for the purpose of sexual gratification of the offender. We will explore this in Committee.
Having carefully considered the Government’s position, I agree with other noble Lords who believe that recording upskirting images without the actual or believed consent of the victim should be enough to constitute an offence and the prosecution should not have to prove one of the specified purposes. I will listen, of course, to the Minister’s response, but I invite the Government to think again on this point.
My noble friend Lady Burt also raised the question of misogyny and whether there should be aggravating factors in the offence under the Bill. I can quite see the argument that an offence that is accompanied by hostile and misogynistic behaviour should be treated particularly seriously by judges when sentencing offenders. The noble and learned Lord, Lord Judge, pointed out that that is precisely what sentencing judges do. Whether or not that should be mentioned specifically in the Bill is open to question and may be considered in Committee.
However, I have no doubt that the House welcomes the commitment by Lucy Frazer, the Parliamentary Under-Secretary for Justice, a commitment mentioned by the Minister, that she will be asking the Law Commission to review whether and how far existing hate crime law should be broadened to give greater protection against hostility based on sex and gender-protected characteristics.
We enthusiastically welcome this Bill; we are proud that it was introduced as a Private Member’s Bill by a Liberal Democrat MP; we applaud the Government for adopting it; and we look forward to considering it further as it passes through the House.
Baroness Chakrabarti (Lab)
My Lords, as someone who has spent most of her adult life resisting unnecessary criminal offences, I know a genuine and serious gap in the criminal statute book when I see it. I therefore join the chorus of congratulations for those who campaigned for the Bill, in particular Gina Martin and the Member of Parliament for Bath, Wera Hobhouse, who supported campaigners and worked so diligently on the introduction of the Private Member’s Bill that was so notoriously hijacked and wrecked in the other place. I welcome the Government’s decision finally to own and introduce this legislation.
At first blush at least, I rather agree with the Minister and, in particular, the noble and learned Lord, Lord Judge, in their analysis of the offence. The Minister will, no doubt, say more in response to recent contributions about purposes. On my recent reading of the Bill, my first thought is that person C, as they appear in the construction of the offence, may help to take care of the distribution issue.
Secondly, the Bill creates a serious criminal offence and it is in the best traditions of the criminal statute book for such offences—particularly those that attract custody—to have some kind of mental element. On first analysis, I find the offence tight and the penalties proportionate. As other noble Lords have said, it is difficult to imagine those two purposes not being met by those who deliberately upskirt someone, who will usually be a woman. I was grateful to noble Lords around the Chamber for pointing out that, while people may have kilts and so on, it would be surprising if this did not operate for the most part as a very misogynistic criminal offence.
I welcome the Government’s recent approach to this. The delay in getting to where we are is unfortunate and, to some extent, inexplicable. Upskirting may be a crime of the modern era—notwithstanding comments made about more archaic technology—and technology has made a difference. None the less, as your Lordships have heard, upskirting has been an offence in Scotland since 2009, and that nine-year delay is inexplicable. It is almost a year since the shadow Justice Secretary asked his counterpart to act. It was the embarrassment of the actions of the Member of Parliament for Christchurch that led the Government, and the Prime Minister herself, rightly to intervene. We are all grateful for that.
All noble Lords should be clear that upskirting is a very serious violation of the privacy and dignity of the victim. It is an urgent problem that there is no specific criminal offence in England and Wales to cover all the scenarios, and this should be borne in mind in hoping for a swift passage for this legislation. As it stands, the law maintains a focus on protecting the public from potential exposure to lewd acts et cetera, rather than protecting the individual from this indignity which is very disturbing, particularly when exacerbated by publication online.
A number of cases have highlighted the failings of the current law. In 2007, for example, Simon Hamilton—a barrister, no less—was convicted after secretly filming up the skirts of women in supermarkets. However, he was able successfully to appeal on the basis that, as none of the victims had been aware of the filming and no one else had seen it, public decency could not have been outraged. Guy Knight, another professional man—a former chartered accountant—took photographs up women’s skirts on trains over a period of five months while commuting to work. He was caught after suspicious passengers reported him to the police. More than 200 illicit images were found on his phone and laptop, and 10 of the women in the pictures were traced by the police. None of them was aware in that moment that they had been photographed. Last year, he was convicted but fined only £500 and asked to pay a further £500 in costs. That is not a proportionate reflection of the gravity of this offence.
It is therefore important that women, and in particular Gina Martin, have been speaking up; the facts of her case have already been set out. Colleagues in different parties have worked closely with her and her lawyer, Ryan Whelan, since last year. It is a wonderful campaigning achievement to have garnered 100,000 signatures for their petition. It is an important recognition that women across the United Kingdom have been affected by this practice, the ease with which technology facilitates it and the exacerbation of publication. It is almost impossible to know how many victims have been affected.
It is therefore important that, notwithstanding wider concerns about other matters, we give the speediest passage to this tightly crafted criminal offence. No doubt, the Minister will respond to any concerns about the offence itself and will consider them if they are real. However, I urge noble Lords around this House to resist using the Bill for our numerous other concerns around misogyny and misogynistic crimes. During the Bill’s passage through the other place, several Back-Benchers, understandably, tabled amendments to the Bill, looking at issues such as street harassment, anonymity for victims of revenge porn, the cross-examination of victims of abuse in civil courts, and the distribution and sharing of images, and so on—which are all important matters that need to be looked at, but not so as to slow the passage of the Bill and this particular offence, which must be got right. Other matters ought to be dealt with in another vehicle.
I am therefore incredibly heartened to hear the commitment from the Government with regard to the Law Commission review of this area of law. The Law Commission is a wonderful body, designed to do just that work. There are too many crimes of misogyny and too much misogyny in the culture. In this country and all around the world, from Riyadh to Rotherham, certainly in numerical terms, gender injustice may be the greatest abuse on the planet.
I was conscious both in this important debate and in the earlier Question and exchange between the noble Lord, Lord Balfe, and the noble Lord, Lord Ashton of Hyde, that the cowardice of anonymity, when degrading or, to use the language of the Bill, “humiliating, alarming or distressing” women does not just happen online but via other vehicles as well. I take this opportunity to say in your Lordships’ House that I was reminded of this over the weekend by some of the language directed at the Prime Minister by a man—I believe—who is allegedly her colleague. That violent language was humiliating, distressing and alarming, if not to the Prime Minister herself, to every decent Member of either House of Parliament. Yes, we must legislate in many respects, but legislation is not the only way that leadership should be shown by people in political life. Forgive me for going off at that tangent, but I think that it is important.
In the meantime, I look forward to hearing the Minister’s reply and I hope we have speedy and unanimous support for the passage of this Bill.
Lord Keen of Elie
My Lords, this Bill is intended to address what is generally acknowledged to be obnoxious and degrading behaviour. I welcome the contributions from all sides of the House with regard to the proposed legislation. I also underline the point just made by the noble Baroness, Lady Chakrabarti, about the need to ensure that we take this forward effectively and speedily and therefore keep it within the compass set within the terms of the Bill. If we seek to grow arms and legs on this legislation, I fear it may come to grief.
I will address a number of the issues raised across the House. There are certain common themes to the points and I hope your Lordships will forgive me if I address them on a thematic basis, rather than indulge in repetition. I begin with the observations made by the noble Baroness, Lady Gale, and I will touch on a number of them. We do not consider that the purposes as set out in the Bill are narrow or that they are incapable of addressing all relevant motivations. I note the observation made by the noble and learned Lord, Lord Judge, that the subsection on purposes uses very wide words. I believe that that was echoed in other parts of the House. That certainly is our view.
On the question of financial gain, where someone takes these images and then posts them, it is generally recognised and easily identified that it is for the purposes of someone else’s sexual gratification. There is potentially no financial gain otherwise. Therefore, that area, we consider, is covered.
In addition, the sharing of an image for somebody else’s sexual gratification would also be an offence, as the noble Baroness, Lady Chakrabarti, observed. The noble Baroness, Lady Gale, and the noble and learned Lord, Lord Judge, raised the question of other forms of distribution—where, for example, somebody comes across an image and decides to distribute it. That raises particular issues of its own. First, if you find that someone is distributing such an image you do not know whether it has been taken consensually. Furthermore, such distribution may engage Section 127 of the Communications Act 2003. It may engage Section 1 of the Malicious Communications Act 1988. It may indeed engage the Obscene Publications Act 1959 in some cases. That is why we have asked the Law Commission to look at the issue of distribution on a wider basis. I hear what noble Lords have said in that regard, but this is not the Bill in which we should attempt to address the wider issues of distribution, and nor would it be appropriate to try to address them merely in the very narrow confines of this Bill. My understanding is that the Law Commission is on the cusp of making its first report in this area and we will, of course, look at it.
The issue of revenge porn, as it is sometimes termed, arises because of the change in the law made pursuant to, I think, Section 33 of the 2015 Act. At that time, revenge porn was not designated as a sexual offence because very often the act is not sexually motivated. Therefore, it would not easily fall within the category of sexual offences otherwise provided for in the context of notification, for example. So, again, one has to approach that issue with some care.
A number of your Lordships, in particular my noble friend Lady Barran, pointed out that there was an apparent anomaly in that when you are dealing with an offence under the Bill, there will be anonymity for the victim. That arises because it is designated as a sexual offence. If you are dealing with a victim of revenge porn, there is no automatic anonymity because it is not designated as a sexual offence. However, I stress no “automatic” anonymity; of course, it is always open to apply to the court for anonymity to be granted. To take the example touched on by my noble friend Lady Barran, in a situation in which somebody has taken an image that would be an offence under the Bill and has been prosecuted, and thereafter there is further distribution in the context of revenge porn, you would be in a position to apply to the court for anonymity to be applied to the second prosecution. It would be rather surprising to discover in such a situation that the court was not inclined to grant anonymity. There are, however, particular reasons why anonymity is not automatic in the context of what is generically referred to as revenge porn or an offence under Section 33 of the 2015 Act.
The noble Baronesses, Lady Gale and Lady Burt, touched on the provisions of the Istanbul convention. The present position is that this year we have consulted on domestic abuse and the consultation closed in May. Consideration has since been given to domestic abuse legislation and, in particular, a Bill that would cover domestic abuse in a wider context. That will also address the question of extraterritorial effect for such an offence. Once that is done, we will be in a position to ratify the Istanbul convention. Until that is done, however, I understand that we cannot fully ratify the convention, which is why the matter is being taken forward at present. I hope that that meets the noble Baroness’s query about the convention.
On the wider issues raised, again, I come back to one point. I hope I have touched on distribution. I do not believe that there is a gap in this piece of legislation, as the noble and learned Lord, Lord Judge, suggested. It is an issue that will have to be addressed more widely because it touches on other legislation and would be a distraction from the intended effect of the Bill to fill in a gap in the present criminal law.
On the question of those taking such images for a laugh, as it has been termed—let us be clear that it is certainly not a laugh for the victim—it is perfectly clear that in circumstances where they are taken for “a laugh”, that is bound to cause distress and humiliation to the victim and is therefore covered by the very wide-ranging purposes set out in the Bill.
Lord Marks of Henley-on-Thames
I just wonder whether the noble and learned Lord would consider, between now and Committee, the position in cases such as those mentioned by the noble Baroness, Lady Chakrabarti, where the victim is unaware of the images being taken and is intended to be unaware by the perpetrator. In those circumstances, the intention to provide sexual gratification may be very difficult to prove.
Lord Keen of Elie
With respect to the noble Lord, in such circumstances it would also be impossible to prove whether the image had been taken consensually. That would be a further, more fundamental bar to prosecution in such circumstances. That is why we and the Law Commission are looking more widely at the distribution of images.
I come back to one point: the mental element in a criminal offence. Being a Scots lawyer, I am rather hot on the topic of mens rea, if I might term it as such. It certainly seems to me unusual—indeed, wholly exceptional—to bring forward a new criminal offence without allowing for the mental element that we regard as mens rea. That is why I consider it appropriate to maintain our present position with regard to purposes. We do not bring forward offences of strict liability except in the most exceptional and compelling circumstances, and that should remain our position so far as the amendment of the criminal law is concerned.
I have heard the submissions made by noble Lords across the House and I am conscious of the wider concerns that arise in the context of aggravating features, although, as the noble and learned Lord, Lord Judge, said, those can be dealt with in the context of sentencing. I urge noble Lords to bear in mind the observation made a number of times about the need to ensure that this remains a simple, straightforward Bill that can be passed and brought into force as quickly and effectively as possible in order to address this obnoxious behaviour. I commend the Bill to your Lordships.
Voyeurism (Offences) (No. 2) Bill
Monday 26th November 2018
(5 years, 4 months ago)
Lords ChamberRead Full debate Voyeurism (Offences) Act 2019 Read Hansard Text Amendment Paper: HL Bill 130-I Marshalled list for Committee (PDF) - (22 Nov 2018)
Lord Pannick
Lord Pannick (CB)
My Lords, Amendment 1 is in my name and that of the noble and learned Baroness, Lady Butler-Sloss. I apologise for not having been present at Second Reading. I was in Udaipur, India, for the wedding of my son Joel to Dhara Shah, and very enjoyable it was. However, as the Minister knows, I have taken an interest in this Bill since before it arrived in this House.
I strongly support the Bill. It will provide much-needed criminal sanctions for offences that cause substantial distress to victims, but my concern is that, as drafted, it might fail some victims. The problem is that each of the offences created by Clause 1—that is, operating equipment or recording an image beneath the clothing of another person—is dependent on proof by the prosecution that the defendant has acted for a purpose mentioned in new Section 67A(3). There are two unlawful purposes: obtaining sexual gratification, and humiliating, alarming or distressing the victim.
My concern is that it is absolutely inevitable that some men—it will almost always be men—who are accused of this offence will say that they did the act of voyeurism not for the purpose of sexual gratification or for humiliating, alarming or distressing the victim, but for the purpose of “having a laugh”. Of course, there is nothing remotely funny about these offences for the victim. I recognise that the prosecution will invite the magistrate or the jury to reject any such defence, but there is a real risk that the defence may succeed in at least some cases, perhaps because the jury will be confused by the need for the prosecution to prove one of the specified purposes.
I share the concern expressed by the noble Baroness, Lady Burt of Solihull, at Second Reading. At col. 789 of Hansard, she talked about defence barristers seeking for their clients “a legal loophole”. There is a potential loophole here; indeed, one so large that it would be more appropriate to describe it as a manhole. My amendment is designed to deal with this by providing that the defendant commits a criminal offence if the prosecution can prove that the defendant acted for the purpose of obtaining sexual gratification or for the purpose of invading the privacy of the victim, whether or not by humiliating, alarming or distressing them.
The amendment would not alter the structure of the offence. It would retain the need for a mental element—that is, proof of the defendant’s purpose. It would retain the imposition of notification requirements only on those who commit the offence for reasons of sexual gratification, which the Government are rightly concerned about. However, it would prevent defendants adding to the distress of their victims by running a wholly unmeritorious defence which may, in some cases, result in them escaping justice. I beg to move.
Baroness Butler-Sloss (CB)
My Lords, I have put my name to this amendment and I also support the Bill. I say to the Minister that the amendment is intended to be helpful.
I have been reflecting on the possibility that this might happen to me. From time to time, I wear very wide skirts, and more than once, in going up and down the stairs to the Tube, the skirt has come right up. I can just imagine a young man thinking it irresistible to stick his iPhone under my skirt as it goes right up for a lark. He might then say that it was not intended and that he did not think he would humiliate me. Quite simply, I would not be humiliated, alarmed or distressed. I would be extremely angry. And if I got the chance, I would put my leg exactly where you think I might. Bear this example in mind. In my view, it is not covered by the current wording of the clause because the action lacks intent and, much more importantly, was done to an elderly woman who then did not suffer any of the suggested reactions. As my noble friend Lord Pannick said, there is a gap—a manhole—and victims such as myself would not be covered.
I am sure the Minister had no hand in drafting this, but it is a well-meaning example of male paternalism. Nice, decent elderly men think that this is how all women would feel, but I am one who does not. For that reason, I strongly support this amendment.
Lord Hope of Craighead (CB)
My Lords, I too support the Bill. I have seen something happen to a man’s kilt that was almost exactly as described by the noble and learned Baroness and equally embarrassing.
With great respect to those who tabled the amendment, I am not quite sure that they have found a solution to the problem they have identified for a reason I shall try to explain. New Section 67A has a number of subsections and, as I read it, subsection (1) describes the action of the person and subsection (3) describes the purpose for which the action is being taken or resorted to. The trouble with “invading the privacy of B” is that those words describe the action. The words in new subsection (1)(a),
“operates equipment beneath the clothing of another person”,
is an example of invading the privacy of that person by operating something beneath their clothing.
Therefore, I wonder whether the amendment is entirely right. The purposes are set out in new subsection (3) and my problem is that the wording of the amendment describes acts rather than purposes. We are in Committee and it might be worth reflecting on the aim—which I quite understand is being properly addressed by the words suggested.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I, too, fully support the underlying objective of this legislation, and apologise for not having played a part in any of the earlier processes.
Reading these amendments today has given me pause for thought along the same lines as my noble and learned friend Lord Hope of Craighead. My noble friend Lord Pannick describes this as a manhole or loophole in the legislation that can be got round. However, the whole point, surely, of new subsection (2)(c) is to limit the application of this provision. You look for a purpose and then you define the purpose in new subsection (3). However, if you include within that any invasion of the privacy of B, frankly, you might as well strike out the whole requirement for a purpose. Whether, as my noble and learned friend Lord Hope said, this is to be regarded as a purpose at all, if you do what is set out in new paragraphs (a) and (b), inevitably you are invading the privacy of B. Therefore that makes it otiose to have any reference to a purpose at all; it is unlimited.
As for an unlimited provision, I am agnostic—or hesitant—as to whether that is a good idea, but it is no good persuading yourself that you are consistently with a purpose and then accommodating the amendment.
Lord Faulks (Con)
My Lords, I too apologise for not having been here at Second Reading, but I have had the opportunity of reading the short debate.
In Section 67 of the Sexual Offences Act 2003, there is a mens rea, as it were, simply for the purposes of obtaining sexual gratification. Unfortunately, one has to pose the question of why anyone is doing this at all—I think it used to be assumed that it must be for some form of rather strange sexual gratification—and this addition of “humiliating, alarming or distressing” is added to cover the possibility that there might be some other motive. Those words are familiar and often interpreted in one context or another in the criminal law, whereas I am unaware—I will be corrected if I am wrong—that the concept of invading privacy finds much resonance in the criminal law, although of course it is reflected in other aspects of our law, not least in Article 8 of the European convention.
The noble Lord, Lord Pannick, rightly said that we do not want anyone who should be capable of relying on a defence to have one in circumstances where it would be unattractive if they did, and he cited a particular instance of someone having a laugh. He then gave the game away by saying it would be unfortunate if they could say this despite the distress that might be caused to the individual who had been the victim of this. Whose laugh are we talking about? Presumably we are talking about misjudged humour on the part of the perpetrator, not the amusement of the victim of this invasion. I take the point made by the noble and learned Lord, Lord Brown, that if there is to be a purposes clause, it is sufficiently wide. I think a magistrate directing himself or herself with the addition of a clerk would have no difficulty in considering this; nor would a recorder have any difficulty in directing a jury to consider this, so that if somebody said in their defence, “I was only doing it for a laugh”, they simply would not be believed.
Lord Marks of Henley-on-Thames (LD)
My Lords, I agree with what was said by the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss. I am not sure that invading privacy is not just as much a purpose as an activity. I shall be brief in support of Amendments 2 and 3 in my name and in the name of my noble friend Lady Burt of Solihull.
I made it relatively clear at Second Reading that I would have preferred the specified purposes provision to be omitted altogether, and in that regard I go further than the agnosticism of the noble and learned Lord, Lord Brown, and the point made by the noble Lord, Lord Faulks. That would mean that an offence would be committed by anyone taking upskirting images without the consent of the victim, though I would add a different proviso: so long as the action of taking or recording the images was not accidental. This could have been quite easily achieved in the legislation by the use of a word such as “deliberately”, and would have constituted an acceptable required level of mens rea—or guilty state of mind—to constitute the behaviour criminal. But my chief concern, and that of my noble friend Lady Burt and others, has been to ensure that no one is permitted to avoid criminal liability by running the defence that he lacked the required purpose. The amendment by the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, is designed to achieve that end.
I would add another problem that has not been covered. There is a concern that the specified purpose in new Section 67A(3)(b)—that is “humiliating, alarming or distressing” the victim, would be entirely absent, not only in the case of the robust constitution professed by the noble and learned Lady, Lady Butler-Sloss, but also in a case where the perpetrator intends to avoid detection by the victim by taking or recording the images without the victim knowing. If the victim is not to know of the behaviour, then she cannot be humiliated, alarmed or distressed by it. In such a case, the only remaining—
Lord Faulks
I thank the noble Lord for giving way. The distress may not be something the victim is aware of at the time it takes place, but were they to become aware—which ex hypothesi they would in the case of a prosecution—surely then they would suffer humiliation and distress, having found out what had been done to them.
Lord Marks of Henley-on-Thames
I do not accept that, because in some cases these images would be published and a prosecution would follow without the victim ever being traced. The victim may not know the images are of her—there may be distinctive parts, there may not—but there may be cases where distress can come either with the prosecution or later. In the proposed new section as it stands, the prosecution has to prove that the intention of the perpetrator was to bring about that distress. That seems an unnecessary complication and hurdle to erect in front of the prosecution so that it has to prove that purpose to secure a conviction.
There may well be cases in which the perpetrator can say that sexual gratification, whether for himself or another person, was not his intention or purpose—the example has been given of “having a laugh”. In Amendment 2, we have identified financial gain, where these images are to be published to make money, as another intention. In Amendment 3, we have identified entertainment or amusement, which is another way of saying “having a laugh”, as another.
The noble and learned Lord, Lord Keen, has argued that financial gain will be achieved by the creation of these images or recordings only if they are to be sold for someone’s sexual gratification. I am not sure that this is entirely true. I believe that, in some circumstances, financial gain may be made by unscrupulous individuals peddling sick humour arising from such images, with no intention on the perpetrator’s part to secure sexual gratification for anyone, whether others may view them for that purpose or not. The purpose of the perpetrator must be proved, not the coincidental fact that others may get sexual gratification from viewing such images later.
The amendment moved by the noble Lord, Lord Pannick, is elegant and cleverly covers our point. However, the noble and learned Lord, Lord Keen, indicated to us that he might look on that amendment favourably even if I have not persuaded the Government—I am not sure that I have persuaded the Minister—of the merits of our amendments. I hope that I have done so; I do not see the difficulty in accepting our amendments. We regard them as improving the Bill by specifically outlawing taking or recording images for financial gain or for entertainment or amusement. Our amendments can be taken with those in the names of the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, which I hope the Government will accept in any event. The point is to avoid people who clearly should be convicted of offences under this new and welcome legislation unjustly running defences of absence of the relevant purpose and getting away with it.
Baroness Burt of Solihull (LD)
My Lords, I will add briefly to the comments of the noble Lord, Lord Pannick, the noble and learned Baroness, Lady Butler-Sloss and my noble friend Lord Marks. As the noble Lord, Lord Pannick, will already have gathered, we welcome Amendment 1, which would widen the offence to include,
“invading the privacy of B, whether or not by”,
humiliating, alarming or distressing them, for the reasons he has given.
Amendment 2 would widen the motivations to include financial gain by the person who took the photo or whoever has distributed it. Upskirting images are freely and easily available on the internet; this amendment spells out that anyone profiting from their distribution is committing a criminal offence.
Amendment 3 cuts off the defence that a group of “lads”—however old they may be—were bonding, having a laugh and did not mean any harm. It is not okay, whatever the motivation of the perpetrator or perpetrators, if the person has not consented. I believe that it is worth spelling that out. These points deserve to be made even if they do not make it into the Bill.
Baroness Chakrabarti (Lab)
My Lords, once more I rise in support of the Bill, and I know that it is rightly supported by Members on all sides of the House. After a lot of thought and some discussion, including with the noble Lord, Lord Pannick, I will stick to my Second Reading position that the Bill should pass through this House swiftly and completely unamended. I have two reasons for sticking to that position, the first pragmatic, but no worse for it, and the second a legal policy reason.
I will take the amendments in reverse order. I am very glad to hear that the noble Lord, Lord Marks, has abandoned his earlier preference for strict liability sex offences, which would be a very illiberal innovation in our criminal law. I take his point about accidental occurrences and so on, but I do not find either Amendment 2 or Amendment 3 to be particularly attractive or to add anything to the Bill.
Baroness Vere of Norbiton (Con)
My Lords, I thank all noble Lords who have taken part in this short debate. The Bill creates two new offences to capture instances where a person takes an upskirt image for the purpose of obtaining sexual gratification and/or causing humiliation, distress or alarm to the victim. It also ensures that the most serious offenders, where the purpose of the offending is for sexual gratification, are made subject to notification requirements—colloquially known as being put on the sex offenders register. In speaking to Amendment 1, I will speak also to Amendments 2 and 3.
Amendment 1, tabled by the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, does not add an additional purpose but replaces the purpose of humiliating, alarming or distressing the victim with a purpose of invasion of privacy, whether or not the perpetrator intends to humiliate, distress or alarm the victim. The prosecution would therefore need to show that the perpetrator intended to invade the victim’s privacy—or to obtain sexual gratification under the existing first purpose—to be guilty of one of the new offences.
Amendments 2 and 3, tabled by the noble Lord, Lord Marks, and the noble Baroness, Lady Burt, would add a third and/or a fourth purpose for which a perpetrator could commit either of the new upskirting offences contained within the Bill. They seek to ensure that those who commit upskirting for financial gain, or for entertainment or amusement, would be caught by the offences. There is support, as we have heard today, from all sides of your Lordships’ House to ensure that the law is suitably robust to protect victims from the distressing practice of upskirting. I recognise that these three amendments are well intentioned and that noble Lords are trying to be helpful, but they are unnecessary and may delay the passage of what is a good Bill as drafted. I thank the noble Baroness, Lady Chakrabarti, for her support in this.
Amendment 1 seeks to address concerns that perpetrators can argue that they had no intention to humiliate, distress or alarm the victim and, by doing so, get away with this heinous behaviour. The amendment is based on the view that, because by its very nature the act of upskirting is an invasion of privacy, it would be easier for a perpetrator to be caught by the Bill if it was drafted in this way, compared with the need to establish an intention to humiliate, alarm or distress the victim, as it is currently drafted.
The amendment would include those who may claim they committed an act of upskirting for financial gain, such as the paparazzi, which is the issue that Amendment 2 seeks to address; those doing it “for a laugh” or for entertainment or amusement, which is the issue that Amendment 3 seeks to address; or indeed those who claim that the victim could not have felt humiliated, distressed, or alarmed because they did not know that upskirting had taken place.
However, I am not convinced that Amendments 1, 2 and 3 address these specific concerns any better than the purposes as currently drafted, and I remain confident that the existing purposes will capture all those who should be criminalised for this behaviour, including those who would come under the proposed purposes set out in the amendments. Obtaining sexual gratification and humiliating, alarming or distressing a victim is terminology which is clear, appropriate and familiar to criminal justice agencies and the courts. I thank the noble Baroness, Lady Chakrabarti, for her definition of “humiliating”. I too have looked it up in a dictionary and it is indeed very broad; nor is the bar set particularly high, I think.
Perpetrators of upskirting will likely have several different purposes or motivations when conducting themselves in this way. For example, if someone took an upskirt image because of their voyeuristic tendencies or because they were going to put it on a pornographic website, or have it published in some other way, they would likely be captured because there is a clear inference that their purpose was to obtain sexual gratification or so that another person could obtain sexual gratification.
It is no defence, with regard to the current purposes, to say that the victim was not aware that an upskirt image had been taken and therefore would not actively feel humiliated. It is the intent of the perpetrator when upskirting their victim which is key here: this is a fundamentally covert practice and the victim may not know it is happening at the time. The fact that the victim is therefore spared the humiliation, alarm or distress when the upskirting occurs does not change the fact that this was the perpetrator’s intent in taking the image in the first place. If it was not, the most likely alternative is that the perpetrator intended to obtain sexual gratification, which remains the other purpose in any event.
In relation to Amendment 2, if an upskirt image of a celebrity is published in a newspaper or shown on any other media outlet, the image will be of interest and therefore may have value because of the humiliation, alarm or distress that is, or is intended to be, caused to the victim. Whether or not a person was paid for the image does not detract from the humiliation caused, but the act of offering it for publication might be taken into account at the sentencing stage as making the offence more serious. It does not matter whether it was the person who took the image or the person they intended to share it with who has the purpose of obtaining sexual gratification or causing humiliation—the new offences apply in either case. Indeed, where there is sufficient evidence that the purpose for taking an upskirt image was, for example, to humiliate the victim, a perpetrator could be charged regardless of any other reasons, financial or otherwise, they might have for taking the photograph. There is also a concern that “financial gain” is itself not defined and would need to be in order to be properly understood and interpreted in the context of upskirting and other sexual offences legislation.
Turning to Amendment 3, if someone takes an upskirt image “for a laugh”—or, to put it another way, for entertainment or amusement—it is clearly implicit that the laugh, entertainment or amusement derives from the humiliation, alarm or distress caused to the victim. The primary reason the upskirt image has entertainment value, to the perpetrator or anyone else, is again because of the humiliation, alarm or distress caused to the victim. Therefore, this behaviour will be caught by the purposes as currently drafted.
It is worth noting that Amendment 1 could limit the flexibility the Bill currently provides—for example, the existing purpose of intending to humiliate, alarm, or distress covers a case where a person takes an upskirt image to bond with friends or peers. It is less clear that the courts would consider that the friend—or “the lad”—looking at these images could be said to have the purpose of invading the victim’s privacy. This could be termed as a loophole.
I also wonder whether Amendment 1 would overcome the evidential issue that the noble Lord is concerned about. It is at least as arguable that the intent to humiliate is as intrinsic to the practice of upskirting as the intent to invade privacy. Surely the likely effect of the amendment would be to shift the focus of argument from whether a person intended to humiliate or distress a victim to whether they intended to invade their privacy. At this point I turn to the noble and learned Baroness, Lady Butler-Sloss, and her blowing-up skirt. Would she have the expectation of privacy if her skirt had blown up? That argument would be had in the courts—another possible loophole, or indeed a manhole.
Lord Pannick
I am grateful to the Minister for her thoughtful and detailed response to my amendment, and to all noble Lords who have participated in this debate. I accept that, as the noble Lord, Lord Faulks, said, distress for the victim is almost inevitable once she knows of the act of upskirting—though not in all cases, as the noble and learned Baroness, Lady Butler-Sloss, has told the Committee. The problem is that the offence as defined in the Bill will require proof beyond a reasonable doubt that “humiliating, alarming or distressing” the victim is the purpose of the wrongdoer.
I see the force of the Minister’s point that the “laugh” can be said to be the consequence of humiliation, alarm or distress. The difficulty remains, however, as the noble Lord, Lord Marks, pointed out, that it will almost always be the intention or purpose of the wrongdoer that the victim should not know of the act of upskirting. That would enable the wrongdoer to argue that it was not his purpose to humiliate, alarm or distress, although he will be forced to concede that once the victim knows what has happened, she—with the exception of the noble and learned Baroness and others who think like her—will be humiliated, alarmed or distressed. The prosecution have to prove purpose. That is the problem, as I see it.
The noble Baroness, Lady Chakrabarti, told the House candidly that she would prefer the drafting in Amendment 1—I see her nodding. She expressed two concerns, which were echoed by the Minister. The first is a pragmatic concern that this Bill should not be sent back to the other place because that will cause delay and there are uncertainties about what would happen to it. With great respect, that is a wholly unrealistic concern. If this amendment has force, and if the Government were to accept it—I know they will not—or were to accept some redrafting that addresses the concerns that have been expressed, it would be simply inconceivable that the House of Commons could not find government time to consider the matter again. How long would it take? On ping-pong, the House of Commons deals with the most complex matters in 30 minutes or an hour. I simply do not accept that that is a real concern—it could be raised about any Bill on any important subject. It is surely our job to try to get legislation right.
The second concern related to Scotland, where these defences have not so far succeeded. There is limited experience there. Our concern is not to cast doubt on Scottish legislation but to raise real concerns about what will happen in practice. We are enacting legislation, and we should get it right, not just follow the Scottish experience if we are persuaded that amendments are required.
I found the points made by the noble and learned Lords, Lord Hope of Craighead and Lord Brown of Eaton-under-Heywood, more troubling. As I understood them, neither disputed that the noble and learned Baroness, Lady Butler-Sloss, other noble Lords and I have raised real concerns about potential loopholes—or manholes. I see the noble and learned Lord, Lord Hope of Craighead, nodding. Their concern is whether the solution we are proffering is the right one. I will consider that, as will, I am sure, the noble and learned Baroness, Lady Butler-Sloss, before Report.
I would welcome the opportunity to discuss with all interested noble Lords and the Minister whether we can reach agreement on an amendment that in no way damages the strength of the Bill but removes a potential loophole. I am not wedded to this particular solution; I am concerned about the problem. I think we have to get this right. In the other place, when this subject was discussed in June, Diana Johnson MP asked,
“how many hours of debate … will be required for Members to arrive at the conclusion that the taking of photographs underneath, mainly, women’s clothes by perverts is a bad thing?”—[Official Report, Commons, 18/6/18; col. 48.]
We have taken 45 minutes, which I think is a valuable use of parliamentary time. I think this is a subject we should return to, no doubt briefly, on Report, and a subject that may well require an amendment to the Bill, which I hope we can achieve by agreement. In the meantime, I beg leave to withdraw the amendment.
Baroness Burt of Solihull
“(3A) It is an offence for a person (A) to disclose an image of another person (B) recorded during the commission of an offence under subsection (2) if the disclosure is made without B’s consent. (3B) It is a defence for a person (A) charged with an offence under subsection (3A) to prove—(a) that disclosure of the image was necessary for the purposes of preventing or detecting crime, or(b) that (A) did not disclose the image with the intent of disclosing an image of another person’s genitals, buttocks or underwear.”
Baroness Burt of Solihull
My Lords, Amendment 4 stands in the names of my noble friend Lord Marks and myself. The proposed new subsections (3A) and (3B) in Amendment 4 would widen the offence to all disclosures made without consent, with a get-out clause to cover the situation if a picture is inadvertently taken—for example, by a member of the paparazzi.
Researchers from Durham University have found that upskirt videos are easily and freely available on mainstream pornography websites. Over a period of just six months they found close to 2,500 videos on the landing page of the UK’s top three most accessed porn sites, depicting acts that can be classed as forms of image-based sexual abuse. Importantly, these titles were on the very front page of these mainstream sites, freely and easily accessible for a first-time user. They are not hidden.
We know from victim-survivors that their intimate images often end up on porn sites, viewed thousands of times and seriously amplifying the harms that they experience, making things worse. Once the images are uploaded to porn sites, getting them taken down from all sites is then extremely difficult.
The noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Pannick, mentioned Scotland. As we know, Scotland has recently criminalised the distribution of upskirting images. Its new law came into effect in July last year. Since then, 421 incidents have been recorded by police. Analysts have concluded that while some of these cases might have been recorded as a different crime or offence had they occurred prior to the new law coming into effect, it is likely that the clear majority of them would not have been classified as a sexual crime.
It is also the case that the enactment of that legislation extended the criminal law to criminalise certain conduct that previously might not have been illegal. This analysis demonstrates that an offence of distribution is a useful tool for the police, and I hope the Minister will also recognise the value of such an offence.
Lord Swinfen (Con)
My Lords, I have one quick question: does this apply to men wearing kilts as well as to women wearing skirts?
Baroness Vere of Norbiton
My Lords, I can address that question very quickly: yes, it does. This is a non-gender-specific piece of legislation.
Amendment 4 would create a further offence of disclosing an upskirt image to another person without the consent of the person in the image. It would also provide for two defences for this offence: namely, that the disclosure of the image was necessary for the purposes of preventing or detecting crime, or that the image was not disclosed with the intent of disclosing an image of another person’s genitals, buttocks or underwear.
The Government share the concerns around the onward sharing of upskirt images and understand the very real harm that this causes victims. It is important to send a clear message that sharing such images without consent is unacceptable and causes humiliation, alarm and distress. It is therefore important that we ensure that the law is sufficiently robust to protect victims from this disturbing practice. However, the Bill is intended to close a small gap in the law around the taking of upskirt images, which is just one aspect of a far wider problem. Legislating for the non-consensual sharing of intimate or naked images, including upskirt images, is a far more complex issue than the offences covered by the Bill.
That is why the Parliamentary Under-Secretary of State for Justice committed in the other place to ask the Law Commission to review the taking and sharing of all non-consensual intimate images. This will be a broad review looking at how technological change has enabled new types of harmful behaviour and how the law needs to evolve to tackle it. The Ministry of Justice is currently working with the Department for Digital, Culture, Media and Sport and the Law Commission to consider how best to take this important and wide-ranging piece of work forward. This will build on the detailed and insightful report on online and offensive communications published by the Law Commission on 1 November. The report makes several recommendations about how the criminal law could be reformed to tackle abusive and harmful online communications.
Baroness Burt of Solihull
I am grateful for the Minister’s comments. I very much take her point that this is a complex issue and that other laws have been effected and could be used. It will have become apparent to the Committee that I am not a lawyer, but I have a strong sense that this is an issue that we should consider. I take the point about the Law Commission review, which is under way at the moment, and with my noble friend Lord Marks and others, we will reflect on the Minister’s comments. For the time being, I beg leave to withdraw the amendment.
Voyeurism (Offences) (No. 2) Bill
Tuesday 18th December 2018
(5 years, 3 months ago)
Lords ChamberRead Full debate Voyeurism (Offences) Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 130-I Marshalled list for Committee (PDF) - (22 Nov 2018)
The Advocate-General for Scotland (Lord Keen of Elie)
My Lords, I want to make one or two observations. This is a simple but important piece of legislation with a clear purpose; namely, to close a gap in the law around the taking of upskirt images.
I am grateful for the positive way in which noble Lords have engaged in debate over the Bill. There is clearly a strong consensus that this behaviour be addressed, and I am pleased that noble Lords and Members of the other place have agreed that the Bill works as drafted, and that it will pass through this House unamended.
I would like to thank a number of noble Lords for their engagement with the Bill: the noble Baroness, Lady Chakrabarti, for her support throughout the process and for her commitment to ensuring that the Bill passes through this House rapidly; and the noble Lord, Lord Marks, and the noble Baroness, Lady Burt, for engaging in the debates, for challenging us to think about whether the purposes of the Bill are, indeed, fit for purpose and for raising the important issue of the onward sharing of non-consensual intimate images. I remain confident that we have taken the right decision on that matter by agreeing to review this first with the Law Commission. I also thank the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, for their contributions to the debate and discussion.
I consider that the review in two years’ time that we committed to in the other place will be a good opportunity to assess how these offences are working in practice. With that, I beg to move.
Voyeurism (Offences) (No. 2) Bill
Tuesday 15th January 2019
(5 years, 3 months ago)
Lords ChamberRead Full debate Voyeurism (Offences) Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 130-I Marshalled list for Committee (PDF) - (22 Nov 2018)
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
I beg to move that the Bill do now pass.
Baroness Chakrabarti (Lab)
My Lords, at the risk of my complete and utter humiliation, I rise in these difficult and fractious times to celebrate a moment of genuine positivity, collaboration and leadership in this place and beyond it. I pay tribute to the campaigner Gina Martin, whose original indignity was converted into a powerful campaign to do something important that we can all agree on. I also pay tribute to her lawyer, Ryan Whelan, for that campaigning partnership and to parliamentarians on all sides of both Houses who made it possible—even at the expense of rivalries and through self-censoring—to allow a speedy and successful passage of this Bill. I particularly thank the government Bill team, the Minister and his colleague, the noble Baroness, Lady Vere. This was good work and very well done.
Lord Keen of Elie
I am obliged to the noble Baroness, Lady Chakrabarti, for her observations. I, too, extend my thanks to all who were engaged in bringing this Bill to fruition. I thank in particular the Bill team, which did so much work to ensure that the passage of this Bill was as simple and swift as we would all wish.
Royal Assent
Tuesday 12th February 2019
(5 years, 2 months ago)
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