Monday 2nd July 2018
(5 years, 9 months ago)
General CommitteesVoyeurism (Offences) Act 2019 Read Hansard Text
This text is a record of ministerial contributions to a debate held as part of the Voyeurism (Offences) Act 2019 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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 (Third sitting)
(Limited Text - Ministerial Extracts only)
Read Full debateThursday 12th July 2018
(5 years, 9 months ago)
Public Bill CommitteesVoyeurism (Offences) Act 2019 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 12 July 2018 - (12 Jul 2018)
This text is a record of ministerial contributions to a debate held as part of the Voyeurism (Offences) Act 2019 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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.
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.
Wednesday 5th September 2018
(5 years, 7 months ago)
Commons ChamberVoyeurism (Offences) Act 2019 Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 5 September 2018 - (5 Sep 2018)
This text is a record of ministerial contributions to a debate held as part of the Voyeurism (Offences) Act 2019 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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]
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.
Tuesday 23rd October 2018
(5 years, 6 months ago)
Lords ChamberVoyeurism (Offences) Act 2019 Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 5 September 2018 - (5 Sep 2018)
This text is a record of ministerial contributions to a debate held as part of the Voyeurism (Offences) Act 2019 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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.
Tuesday 18th December 2018
(5 years, 4 months ago)
Lords ChamberVoyeurism (Offences) Act 2019 Read Hansard Text Amendment Paper: HL Bill 130-I Marshalled list for Committee (PDF) - (22 Nov 2018)
This text is a record of ministerial contributions to a debate held as part of the Voyeurism (Offences) Act 2019 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
Tuesday 15th January 2019
(5 years, 3 months ago)
Lords ChamberVoyeurism (Offences) Act 2019 Read Hansard Text Amendment Paper: HL Bill 130-I Marshalled list for Committee (PDF) - (22 Nov 2018)
This text is a record of ministerial contributions to a debate held as part of the Voyeurism (Offences) Act 2019 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.