Voyeurism (Offences) (No. 2) Bill

2nd reading (Hansard): House of Lords
Tuesday 23rd October 2018 Lords Chamber

Second Reading

15:56

Moved by

[Lord Keen of Elie]

That the Bill be now read a second time.

[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.

16:06

[Baroness Gale (Lab)]

My Lords, I thank the Minister for his opening remarks and for bringing this Bill before us today. As he has said, it is a narrow Bill, but it does have the support of the Government. I am sure that we will support everything that is in it, but while it has been welcomed in many quarters, it is not entirely without criticism. Nevertheless, it is a step forward in protecting women and girls from this unwanted behaviour which can be humiliating and degrading to the victim.

Women’s Aid has given the Bill a warm welcome. Its chief executive has said:

“By condemning this form of abuse, we can send out the powerful message that upskirting is unacceptable and perpetrators of this crime will be held to account”.


Upskirting may not be something new, but today with practically everyone owning and carrying a camera in their pocket, and with the rapid spread of mobile technology, the reach of the internet and the use of social media, it is easy to take images and distribute them. That is no doubt why there has been such a rise in this appalling behaviour, and it is time that the taking of such images without the knowledge or consent of the person concerned is made an offence. Victims say that image-based sexual abuse causes shame, humiliation and significant distress. It can have a severe impact on mental health which can be long lasting. I believe that the Bill will be a big step forward in tackling a loophole in the law.

Concerns have been expressed that the Bill will criminalise upskirting only if the perpetrator does so to obtain either sexual gratification for himself or others, causes humiliation and distress, or alarms the victim. This does cover some but not all motivations as the perpetrator may commit the crime for financial gain or, as the Minister said, for “having a laugh”. One can imagine how that can happen when such images are shown around a group of male friends.

Cross-party amendments were tabled in another place to criminalise the distribution of upskirting images. This Bill would criminalise only the taking of such images but not their further distribution, which often happens. Perpetrators share these images with friends or on social networks, causing further humiliation and distress to victims. By not criminalising the distribution of such images, I believe that we fail to recognise victims’ experiences, which adds to their distress and embarrassment. I know that the Minister has talked about this, but I would ask him to look at this again when we move on to the Committee stage.

The excellent briefing from Women’s Aid points that out. It feels that the focus on the perpetrator’s motivation should be removed to ensure that all victims of this crime are treated consistently and believes that the legislation needs to recognise that non-consensual images are created, distributed and shared in many ways. I understand that the Government have concerns that this could risk unintentionally criminalising people. Again, Women’s Aid said that defences would remain for those accused who may have taken the image by accident or for law enforcement reasons.

I welcome the fact that the victims will be granted anonymity. This is essential to ensure reporting of the crime and should encourage women and girls to come forward. It is well known that victims of sexual offences can be reluctant to come forward. I hope that this will go some way to helping them to do so, and that the police and other bodies will have the necessary training and resources to deal with this new offence.

In its briefing on the Bill, the Equality and Human Rights Commission mentions the Istanbul convention, urging the Government to ratify it. In fact, it states:

“We urge the UK Government to urgently ratify, fully resource and implement the Istanbul Convention”.


I wholeheartedly agree. Article 40 of the Istanbul convention requires,

“the necessary legislative or other measures to ensure that any form of unwanted verbal, non-verbal or physical conduct of a sexual nature with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment, is subject to criminal or other legal sanction”.

When ratified, Article 40 would certainly cover the measures in the Bill before us.

The preventing and combating violence against women and domestic violence Act 2017, which I took through your Lordships’ House, requires the Government to publish an annual report, which is due by 1 November each year. The first report was published on 1 November 2017. It said:

“The Government will set out a timetable for ratification in line with the requirement of section 1 of the Preventing and Combating Violence Against Women and Domestic Violence (Ratification of Convention) Act 2017 in due course”.


Can the Minister say when that will be? When does he expect the second annual report to be published? It is due by 1 November, which is in nine days’ time.

I mention the Istanbul convention because it is so relevant to our debate. I am pleased to hear the Minister say that the Government will keep the law under review and are committed to undertaking post-legislative scrutiny in the next two years to assess how the offences are working in practice. Everyone would welcome that as it would give us an opportunity to see how well the Bill is working and whether it needs any amendment. I look forward to the Minister’s response and to taking part as the Bill progresses towards becoming law.

16:13

[Baroness Burt of Solihull (LD)]

My Lords, I am absolutely delighted to welcome the Second Reading of what has become colloquially known as the “upskirting Bill”. It was introduced in the Commons in June through a Private Member’s Bill by my friend and colleague Wera Hobhouse following an enormously successful campaign by Gina Martin, who obtained over 100,000 signatures in her bid to amend the current law. That Bill was objected to by Sir Christopher Chope —a practice he undertakes with monotonous regularity in the Commons. Many an excellent Bill has fallen because of his demand to see what he regards as proper due process. However, on this occasion he inadvertently did us all a favour. The outcry was so great that the Government agreed to bring in the Bill themselves—hence our all being here today.

Upskirting has been an offence in Scotland since 2009, so it is high time the offence was introduced in England and Wales. Of course, Northern Ireland goes its own way—or it would if Members of its Assembly could agree to work together, put the people first and get on with some legislative work.

The Equality and Human Rights Commission welcomes the Bill—I think the noble Baroness, Lady Gale, has been reading the same briefings as me—and comments that it is a further step towards meeting our commitments under the Istanbul convention. Like the noble Baroness, I would be grateful if the Minister could explain in his remarks what is holding up the ratification process.

But why is the Bill necessary? Professor Clare McGlynn of Durham University put it thus:

“Sexual offences are about power and control, punishment, sexual entitlement, anger, entertainment, as well as sexual gratification”.


A number of speakers at the Commons stage, as well as Professor McGlynn, recommended that the Government remove the motivation requirement from the Bill. They say—and I agree—that we need to concentrate instead on the harm caused to victims. And the harm is real: shame, humiliation, distress, fear and anxiety, paranoia, depression, trauma, panic attacks—the damage is endless. What does motivation matter when the outcome is one of the above?

The qualifying motivations in subsection (3) seem to me and others a little thin. The Government’s point—which I do see—is that the type of motivation is relevant to whether the perpetrator should be on the sex offender register. Anyone doing this for sexual gratification should be recorded on it. But the question remains about whether the motivations covered in the Bill leave room for sneaky defence barristers, seeking a legal loophole, to argue that their clients’ actions are not within the scope of the law.

The EHRC prefers to see motivation out of the Bill altogether, but argues that there is a question mark over two important areas which should at least be recorded as motivations on the face of the Bill. These are “financial gain” and “entertainment or amusement”. The Minister may well see amendments on this coming his way during the course of the Bill, but I am sure that the House would be grateful if he would comment in his final remarks today. “Lads having a laugh” might cut no ice with most judges—but why take the risk?

Financial gain is very real. One website hosting and exchanging images is reportedly worth £30 million. Let no one profit from this kind of humiliation and distress. Distribution of these images is an area called into question by Women’s Aid. As I understand it, the legislation criminalises the taking of an image but not the further distribution of it, which is a common occurrence. So if we fail to criminalise distribution, we fail to recognise the further distress and humiliation that victims suffer. Any possible amendments also need to include threats to distribute— a mechanism of coercive control. Women’s Aid points out the terrible damage this could cause to women of BME origin, where cultural norms may lead to their being disowned, ostracised and even killed. For the victim, this is about as far away from “having a laugh” as you can get.

I welcome the fact that upskirting will come under the Sexual Offences Act, which will give victims the right to anonymity. Studies have shown that without this right, in cases of rape, the vast majority of victims would not report. One area where this right is not given—because it does not come under the Sexual Offences Act—is for so-called revenge porn. A BBC investigation found that in about one-third of revenge porn cases where victims withdrew from prosecution, lack of anonymity was a key factor. So an amendment could be coming the Minister’s way that would give the right to anonymity to victims of all image-based sexual violence, particularly revenge porn, Photoshopped images and sextortion—which is sexual extortion. Why should not all of the above be treated as sexual offences? Perhaps the Minister could comment on this.

Women today suffer from a vast array of forms of sexual harassment. During research for this debate, I learned more than I ever wanted to know about sexual cybercrime. One in 10 women has experienced some form of cybercrime since the age of 15, including cyber harassment and stalking, use of GPS to track their movements, online rape and death threats, and doxing—which I learned is disclosing private or identifying information to the world. Only this morning, the Women and Equalities Select Committee recommended government action on street harassment and on watching porn in public places. It is sickening, and it all serves to promote the continuing unequal relationship between men and women.

We on these Benches greatly welcome the Bill. We thank the Government for taking prompt action after the attempted sabotage of the original Private Member’s Bill by Sir Christopher Chope. We also welcome the Law Commission review of whether misogyny should be included alongside other protected characteristics in law. I personally would welcome misandry also being included. After all, what is sauce for the goose is sauce for the gander.

16:21

[Baroness Barran (Con)]

My Lords, I speak in this debate with mixed feelings. While it is a great honour to be part of the Second Reading of a Bill which seeks to limit the impact of violence against women and girls, it is also a sadness that we need this legislation, since it reflects the way in which gender-based violence is evolving, with new technology and social media in particular. Like others, I want to acknowledge the commitment of the honourable Member for Bath, my home town, in campaigning for this law, and of Gina Martin for her courage in bringing this issue forward.

As we have heard today, and in the evidence given to the Bill Committee in the other place, the Government are seeking to close a loophole in the current legislation in relation to where an offence of upskirting takes place; namely, a place that is neither private nor public, such as a school, festival or, as we have heard, public transport. There has been considerable debate about whether the motives of sexual gratification and humiliation of the victim are appropriate, with strong arguments made—including by the noble Baronesses, Lady Gale and Lady Burt, and by the highly respected Professor Clare McGlynn from Durham University—that these should be extended or removed, focusing rather on the impact of the crime on the victim.

Perhaps I may commend one approach to the Minister for consideration which, without broadening the specific list of motives, would bring greater attention to the impact on the victim. It applies particularly in relation to the motive of humiliation and would be to use language in the Bill that mirrors that in the Protection from Harassment Act. To paraphrase that Act, it states that the person whose conduct is in question ought to know that it will cause, in this case, humiliation or distress if a reasonable person in possession of the same information would think that the conduct would cause humiliation and distress. I would be grateful if my noble friend the Minister would comment on this approach, because I think it would really reflect, quite simply, the impact on the victim.

I am also sympathetic to those who have sought greater clarity in relation to the distribution of images secured via upskirting. Arguably, we can all agree that this is where the greatest harm is wrought. As has been mentioned by the noble Baroness, Lady Burt, where the revenge porn legislation would have some applicability in relation to distribution, it would help if the Minister could confirm that the anonymity of the victim as it would apply under the sexual offences legislation would still apply in the event of a further prosecution under that law. Along with other noble Lords, I look forward to further debate on that issue in future.

I want to say one word about vulnerability. We know, particularly from research by Professor Betsy Stanko, that most sexual offences happen to women who are already vulnerable in some way, so I hope that great care will be taken to establish, in those cases where it is alleged that consent has been given, that this has not been extorted through threats or coercion, particularly of a vulnerable victim.

Returning to the scope of the Bill, I suggest to noble Lords that part of the unease that has been expressed on all sides of this House and by those who have already debated it in the other place simply reflects the size of the gap between the scale of abuse, using images without consent, and the number of convictions that are expected to arise as a result of passing this Bill—which, if I have understood correctly, is about 30 a year. We have seen that in Scotland there have been only a handful of cases convicted annually. So, along with my noble friend the Minister, I look forward very much to the publication of the Law Commission’s recommendations about online abuse and to future legislation on the use of images without consent. I welcome very much, with other noble Lords, the Women and Equalities Committee’s recommendations this morning in that regard.

I also want to reflect on the fragmented nature of the legislation in this area, which in some ways mirrors that in the field of domestic abuse, with which I am particularly familiar. It has been argued that many of the different permutations of abuse in this category of offending are covered by existing legislation, but we know from domestic abuse that where the legislation is very fragmented, it is often poorly understood and inconsistently implemented. It would be very helpful at some point if we could bring the offences together in one place, both for police and prosecutors and, equally importantly, for the general public, so that it is clear and easy to understand.

Finally, beyond the specifics of the Bill we face a tremendous task, which is to work out how we can change public attitudes, which continue to be so accepting of violence against women and girls, of which voyeurism is simply one example. I found the evidence from Lisa Hallgarten of Brook a helpful reality check in this regard. We need to be realistic about what is happening on the ground and as she pointed out, schools are not even equipped to deal with sexual bullying, sexual assault or domestic abuse among their pupils, let alone upskirting. I recently heard from Plan International UK about the extent of sexual harassment of young girls in this country. Its survey showed that two-thirds of girls aged between 14 and 21 have experienced unwanted sexual attention or harassment in a public place, with 15% of them having been touched, groped or grabbed. This is happening every day, on every street and on every bus.

We are also all very familiar in this House with the extent of wider sexual and domestic violence and its prevalence. So we all look forward, I am sure, to hearing more about how this will be tackled in the forthcoming domestic abuse Bill and the updated violence against women and girls strategy. In the meantime, in common with other noble Lords, I feel that this Bill to address upskirting is definitely a helpful step forward, but I hope that my noble friend the Minister agrees that there is still much to do beyond this to address the full spectrum of violence against women and girls, particularly in the area of prevention and public attitudes.

16:30

[Baroness Barker (LD)]

My Lords, I thank the noble and learned Lord, Lord Keen of Elie, for the clear way in which he introduced this legislation. I too congratulate my colleague in another place, Wera Hobhouse, on taking the opportunity to legislate on an offence which is at the moment rarely prosecuted—yet the behaviour seems to be growing. She has given us the opportunity to put together legislation which, if we get it right, will create a deterrent. That will be an important thing for us to do.

Before turning to the specifics of the Bill, I want to commend the Government for taking up this matter when Wera Hobhouse’s Bill was hijacked in another place. I simply make this observation: by their nature, Private Members’ Bills often deal with matters which are of high significance to very few people. There is a group of Conservative MPs, mostly white men, who take pride in shooting down Private Members’ Bills like some Friday morning sport. That is nasty. The Prime Minister’s swift response is welcome but it really should not be necessary.

I have been discussing this Bill in my office, like many other Members of your Lordships’ House, I imagine—particularly the women Members. My noble friend Lady Hamwee told me that she remembered being shocked while she was a student at Girton, which is three miles outside Cambridge, when female students were warned that someone who was giving lifts to hitchhikers was using a mirror on his car floor to look up the skirts of passengers. There are many reasons not to hitchhike but that was another one, so this is not a new issue. It is just that the role of technology has made a qualitative difference. Today, this crime has the potential to cause much greater harm to victims because images can be taken more easily and shared more widely than in the past. That compounds the violation of privacy that takes place at first. The points made by my noble friend Lady Burt on behalf of Women’s Aid were striking and to the point.

This is not a political Bill; we all share the ambition to draw up legislation which offers the greatest possible deterrence. Within that, I think it is agreed that we need legislation which is sufficiently robust in the punishments it includes but also has the flexibility to enable law enforcement agencies and so on to make it work in practice. The Bill comes to your Lordships’ House having been debated in another place under its Public Bill Committee procedure. If only for the ease of reading its discussions in Hansard, I prefer the way that is done in another place. I found it very helpful to hear people such as Gina Martin, who was a victim of this vile behaviour, set out in some detail the reasons why she and her legal team came up with their draft legislation, and the assumptions that they put behind it. That having been done, your Lordships will have the opportunity to test during our deliberations whether the definition—the technical specification—of this offence of voyeurism, as set out in Clause 1(2), is, first, sufficiently comprehensive now and, secondly, whether it will stand the test of time. We live in an age when technology changes very rapidly.

In the Public Bill Committee, it was also helpful to understand the context in which the Bill sits and the work of the Law Commission in looking at changes to definitions of hate crime, but particularly to understand the difference between this Bill and the Bill on revenge porn. I was involved in a minor way in the passage of the revenge porn legislation, along with my noble friend Lord Marks. It was interesting to read that victims of that offence do not have a right to anonymity whereas this offence will be a sexual offence and therefore victims will have an automatic right to anonymity. It is somewhat difficult for some of us who are not lawyers to understand quite why two offences which appear to be very similar in perpetration and effect should be treated so differently. Revenge pornography was made an offence in 2014 and about 500 cases a year are successfully prosecuted but hundreds more are not. I am sure the Minister will explain to us why that is not a sexual offence but upskirting will, under the Bill before us, be a sexual offence. Given the difference, I hope that over the coming years the Government will pay close attention to the rates of charges and successful prosecutions which are brought under the different pieces of legislation to see whether there is evidence for anonymity for victims.

I too was interested in the words of Lisa Hallgarten, the head of policy and public affairs at Brook. A lot of what she had to say was about the way young people are unsure about their right to privacy and about what invasion of privacy is and the implications of that not only for prosecutions under the Bill but for schools when handling instances that may happen. Teaching young women what their rights to privacy are and young men what constitutes an invasion of privacy is important.

This Bill comes to us today when the Women and Equalities Committee has produced its report on sexual harassment. It said:

“Laws alone cannot address the cultural acceptability of sexual harassment, most of which is unreported, but they have an important part to play, including in responding to new forms of public sexual harassment facilitated by technology. We welcome legislation on ‘upskirting’ and ‘revenge porn’, but at present, the Government is too often racing to catch up with these developments”.


I congratulate the Government on taking one more step and I hope we will make this legislation get to the statute book with some alacrity so that fewer women are victims of this horrible crime.

16:38

[Lord Judge (CB)]

My Lords, I am grateful to be allowed to intervene at this stage of debate. I apologise for not putting my name down. As noble Lords have allowed me to speak, I shall do so briefly.

I welcome the Bill. It addresses a problem created by the availability of modern technology. It is a good Bill: we know exactly what action is being criminalised; we know exactly what the intention of the perpetrator is. There is no messing about. It is a specific intention. We also know that it must be done—again no messing about—without the consent of the victim and without a reasonable belief in that consent.

I listened with care to some of the observations that have been made, and I shall make this point: any crime of this kind has to be dealt with by way of sentence. It has been an aggravating feature of any kind of sexual offence that the motivation is revenge. It has been a serious aggravating feature of any kind of sexual offence that the objective is money, gain or pressure. It is perfectly obviously an aggravating feature of any sexual crime that the victim has been chosen for whatever reason, whether sexual orientation, trans- genderism or whatever. Those features can be taken into account by the sentencing judge, assuming that it can be established that the offence is to obtain sexual gratification or to humiliate, alarm or distress. Those are very wide words. It would be difficult to think of many situations in which, we will say, a man decided to upskirt without having the purpose of humiliating his victim, probably alarming her and almost certainly distressing her.

There is a gap here that I would like the Minister at least to consider: the Bill does not cover distribution. The purpose of the taker of the upskirt may be to distribute it but the Bill does not cover the consequences if he and others do so. There is no distribution for fun—that cannot be so—but let us just call it “harmless fun” in the sense of what we mean by humiliation. That ought to be an offence by someone else who did not commit the act of obtaining the upskirt image. Certainly there should be an offence that covers the distribution of the image for financial gain. To close that gap, there needs to be consideration of all the matters that have been raised in the speeches today but also a specific offence relating to those who choose to distribute the results of someone else’s foul work.

16:41

[Lord Marks of Henley-on-Thames (LD)]

My Lords, upskirting is nasty, predatory, degrading and invasive behaviour. It inflicts significant emotional damage upon its victims, as described by my noble friend Lady Burt and others. While, as my noble friend Lady Barker pointed out, it has similarities to revenge porn, which we rightly and successfully criminalised in 2015, upskirting is markedly different from revenge porn in that its victims are generally unknown to the perpetrators and suffer this appalling unpleasantness, which may leave them with serious emotional scars for years to come, just because they happen to be in the wrong place at the wrong time.

It is significant and welcome that there has been absolutely no dissent in this short but excellent debate on criminalising upskirting. I too pay tribute to my honourable friend Wera Hobhouse MP for the skill and determination with which she pioneered her Private Member’s Bill and secured the Government’s support that has led to this Bill. I thank the Government for taking it on and the Minister for the clarity of his introduction.

I also pay tribute to Gina Martin. She was enjoying a visit to the British Summertime Festival, a 26 year-old woman with no political or legal experience, when a man who was with a friend took a photo up her skirt on his phone and then very publicly texted it to all his friends in the surrounding crowd, causing her considerable distress. The police attended and told her there was nothing that she or they could do because upskirting was not an offence in England and Wales, unlike in Scotland, where it was criminalised in 2009. That prompted Gina Martin to launch and champion a very successful petition and to campaign vigorously to make upskirting an offence. She has been an example to us all of what individual campaigning can do to secure real change.

What has horrified many has been not just that upskirting has become so widespread but that it has been accompanied by the development of large numbers of websites where upskirting images have been publicly displayed. This was mentioned by my noble friend Lady Burt, the noble Baroness, Lady Barran, and others, while the noble and learned Lord, Lord Judge, talked about dealing with the question of distribution. We must be absolutely sure that legislation captures this type of behaviour.

I turn to the detail of the Bill. The first issue for consideration has been raised by all noble Lords: whether it is necessary to specify that to constitute an offence the upskirting must be carried out either for the sexual gratification of the perpetrator or another, or in order to humiliate, alarm or distress the victim. The Government maintain that, given the lack of consent requirement in the Bill, all non-consensual upskirting is likely to be committed for one or other of those specified purposes. I acknowledge, and on this I share the view of the noble and learned Lord, Lord Judge, that it is quite difficult to see circumstances where upskirting will be committed without one of those specified purposes in mind. However, I remain to be convinced that there will never be such circumstances or that the specified purposes will always be capable of proof to the criminal standard.

As one might expect, I do not share my noble friend Lady Burt’s distrust of sneaky defence barristers. Defence counsel have a duty to advance all defences available to their clients. For my part, I would not want to offer those who ought to be convicted a gratuitous and undeserved route to acquittal by erecting artificial hurdles for the prosecution to surmount.

My concern is that there may be incidents of upskirting where the perpetrator could argue that he had no view to his own sexual gratification or that of anyone else, no intention of humiliating, alarming or distressing the victim and that his interest was mere entertainment or banter with friends.

We should remember the important fact that any victim who is aware of the upskirting and of the distribution of the resulting images, or even of the risk of distribution, will inevitably suffer humiliation, alarm and distress. But intention to cause it may be difficult to prove. Should we be requiring the prosecution to prove it, allowing a defendant to argue, for example, that his victim was entirely unaware of the incident? For my part, I would regard any such defence as of absolutely no merit, but I can foresee such defences being run and doubt that they should be available.

The question of financial gain arises in this context also. If the perpetrator’s purpose is financial gain from distributing images on websites, will the prosecution always be able to prove that it follows that his purpose was the sexual gratification of another person or persons looking at the websites? That is apparently the Government’s argument, but I remain to be convinced that it is right, or, even if it is right, that it is necessary to import that somewhat complicated and convoluted logic into the Bill. If the purposes provision is to remain in the Bill, the question arises why financial gain and entertainment should not be added to the purposes specified in the Bill.

Viewing the question from the opposite point of view to that of the Government, if all non-consensual upskirting would fall within the specified purposes, what is the point of specifying them? The Minister argues that only upskirting for sexual gratification should lead to notification—that is, entry on the sex offender register—so that purpose and others must be distinguished. I can see that. However, the Bill could be simply amended to provide that notification followed only where the offence was committed for the purpose of sexual gratification of the offender. We will explore this in Committee.

Having carefully considered the Government’s position, I agree with other noble Lords who believe that recording upskirting images without the actual or believed consent of the victim should be enough to constitute an offence and the prosecution should not have to prove one of the specified purposes. I will listen, of course, to the Minister’s response, but I invite the Government to think again on this point.

My noble friend Lady Burt also raised the question of misogyny and whether there should be aggravating factors in the offence under the Bill. I can quite see the argument that an offence that is accompanied by hostile and misogynistic behaviour should be treated particularly seriously by judges when sentencing offenders. The noble and learned Lord, Lord Judge, pointed out that that is precisely what sentencing judges do. Whether or not that should be mentioned specifically in the Bill is open to question and may be considered in Committee.

However, I have no doubt that the House welcomes the commitment by Lucy Frazer, the Parliamentary Under-Secretary for Justice, a commitment mentioned by the Minister, that she will be asking the Law Commission to review whether and how far existing hate crime law should be broadened to give greater protection against hostility based on sex and gender-protected characteristics.

We enthusiastically welcome this Bill; we are proud that it was introduced as a Private Member’s Bill by a Liberal Democrat MP; we applaud the Government for adopting it; and we look forward to considering it further as it passes through the House.

16:49

[Baroness Chakrabarti (Lab)]

My Lords, as someone who has spent most of her adult life resisting unnecessary criminal offences, I know a genuine and serious gap in the criminal statute book when I see it. I therefore join the chorus of congratulations for those who campaigned for the Bill, in particular Gina Martin and the Member of Parliament for Bath, Wera Hobhouse, who supported campaigners and worked so diligently on the introduction of the Private Member’s Bill that was so notoriously hijacked and wrecked in the other place. I welcome the Government’s decision finally to own and introduce this legislation.

At first blush at least, I rather agree with the Minister and, in particular, the noble and learned Lord, Lord Judge, in their analysis of the offence. The Minister will, no doubt, say more in response to recent contributions about purposes. On my recent reading of the Bill, my first thought is that person C, as they appear in the construction of the offence, may help to take care of the distribution issue.

Secondly, the Bill creates a serious criminal offence and it is in the best traditions of the criminal statute book for such offences—particularly those that attract custody—to have some kind of mental element. On first analysis, I find the offence tight and the penalties proportionate. As other noble Lords have said, it is difficult to imagine those two purposes not being met by those who deliberately upskirt someone, who will usually be a woman. I was grateful to noble Lords around the Chamber for pointing out that, while people may have kilts and so on, it would be surprising if this did not operate for the most part as a very misogynistic criminal offence.

I welcome the Government’s recent approach to this. The delay in getting to where we are is unfortunate and, to some extent, inexplicable. Upskirting may be a crime of the modern era—notwithstanding comments made about more archaic technology—and technology has made a difference. None the less, as your Lordships have heard, upskirting has been an offence in Scotland since 2009, and that nine-year delay is inexplicable. It is almost a year since the shadow Justice Secretary asked his counterpart to act. It was the embarrassment of the actions of the Member of Parliament for Christchurch that led the Government, and the Prime Minister herself, rightly to intervene. We are all grateful for that.

All noble Lords should be clear that upskirting is a very serious violation of the privacy and dignity of the victim. It is an urgent problem that there is no specific criminal offence in England and Wales to cover all the scenarios, and this should be borne in mind in hoping for a swift passage for this legislation. As it stands, the law maintains a focus on protecting the public from potential exposure to lewd acts et cetera, rather than protecting the individual from this indignity which is very disturbing, particularly when exacerbated by publication online.

A number of cases have highlighted the failings of the current law. In 2007, for example, Simon Hamilton—a barrister, no less—was convicted after secretly filming up the skirts of women in supermarkets. However, he was able successfully to appeal on the basis that, as none of the victims had been aware of the filming and no one else had seen it, public decency could not have been outraged. Guy Knight, another professional man—a former chartered accountant—took photographs up women’s skirts on trains over a period of five months while commuting to work. He was caught after suspicious passengers reported him to the police. More than 200 illicit images were found on his phone and laptop, and 10 of the women in the pictures were traced by the police. None of them was aware in that moment that they had been photographed. Last year, he was convicted but fined only £500 and asked to pay a further £500 in costs. That is not a proportionate reflection of the gravity of this offence.

It is therefore important that women, and in particular Gina Martin, have been speaking up; the facts of her case have already been set out. Colleagues in different parties have worked closely with her and her lawyer, Ryan Whelan, since last year. It is a wonderful campaigning achievement to have garnered 100,000 signatures for their petition. It is an important recognition that women across the United Kingdom have been affected by this practice, the ease with which technology facilitates it and the exacerbation of publication. It is almost impossible to know how many victims have been affected.

It is therefore important that, notwithstanding wider concerns about other matters, we give the speediest passage to this tightly crafted criminal offence. No doubt, the Minister will respond to any concerns about the offence itself and will consider them if they are real. However, I urge noble Lords around this House to resist using the Bill for our numerous other concerns around misogyny and misogynistic crimes. During the Bill’s passage through the other place, several Back-Benchers, understandably, tabled amendments to the Bill, looking at issues such as street harassment, anonymity for victims of revenge porn, the cross-examination of victims of abuse in civil courts, and the distribution and sharing of images, and so on—which are all important matters that need to be looked at, but not so as to slow the passage of the Bill and this particular offence, which must be got right. Other matters ought to be dealt with in another vehicle.

I am therefore incredibly heartened to hear the commitment from the Government with regard to the Law Commission review of this area of law. The Law Commission is a wonderful body, designed to do just that work. There are too many crimes of misogyny and too much misogyny in the culture. In this country and all around the world, from Riyadh to Rotherham, certainly in numerical terms, gender injustice may be the greatest abuse on the planet.

I was conscious both in this important debate and in the earlier Question and exchange between the noble Lord, Lord Balfe, and the noble Lord, Lord Ashton of Hyde, that the cowardice of anonymity, when degrading or, to use the language of the Bill, “humiliating, alarming or distressing” women does not just happen online but via other vehicles as well. I take this opportunity to say in your Lordships’ House that I was reminded of this over the weekend by some of the language directed at the Prime Minister by a man—I believe—who is allegedly her colleague. That violent language was humiliating, distressing and alarming, if not to the Prime Minister herself, to every decent Member of either House of Parliament. Yes, we must legislate in many respects, but legislation is not the only way that leadership should be shown by people in political life. Forgive me for going off at that tangent, but I think that it is important.

In the meantime, I look forward to hearing the Minister’s reply and I hope we have speedy and unanimous support for the passage of this Bill.

17:00

[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.

Bill read a second time and committed to a Grand Committee.