Voyeurism (Offences) (No. 2) Bill

Committee: 1st sitting (Hansard): House of Lords
Monday 26th November 2018 Lords Chamber

Committee

15:22

Clause 1: Voyeurism: additional offences

Amendment 1

Moved by

[Lord Pannick]

1: Clause 1, page 2, line 8, before “humiliating” insert “invading the privacy of B, whether or not by”

[Lord Pannick (CB)]

My Lords, Amendment 1 is in my name and that of the noble and learned Baroness, Lady Butler-Sloss. I apologise for not having been present at Second Reading. I was in Udaipur, India, for the wedding of my son Joel to Dhara Shah, and very enjoyable it was. However, as the Minister knows, I have taken an interest in this Bill since before it arrived in this House.

I strongly support the Bill. It will provide much-needed criminal sanctions for offences that cause substantial distress to victims, but my concern is that, as drafted, it might fail some victims. The problem is that each of the offences created by Clause 1—that is, operating equipment or recording an image beneath the clothing of another person—is dependent on proof by the prosecution that the defendant has acted for a purpose mentioned in new Section 67A(3). There are two unlawful purposes: obtaining sexual gratification, and humiliating, alarming or distressing the victim.

My concern is that it is absolutely inevitable that some men—it will almost always be men—who are accused of this offence will say that they did the act of voyeurism not for the purpose of sexual gratification or for humiliating, alarming or distressing the victim, but for the purpose of “having a laugh”. Of course, there is nothing remotely funny about these offences for the victim. I recognise that the prosecution will invite the magistrate or the jury to reject any such defence, but there is a real risk that the defence may succeed in at least some cases, perhaps because the jury will be confused by the need for the prosecution to prove one of the specified purposes.

I share the concern expressed by the noble Baroness, Lady Burt of Solihull, at Second Reading. At col. 789 of Hansard, she talked about defence barristers seeking for their clients “a legal loophole”. There is a potential loophole here; indeed, one so large that it would be more appropriate to describe it as a manhole. My amendment is designed to deal with this by providing that the defendant commits a criminal offence if the prosecution can prove that the defendant acted for the purpose of obtaining sexual gratification or for the purpose of invading the privacy of the victim, whether or not by humiliating, alarming or distressing them.

The amendment would not alter the structure of the offence. It would retain the need for a mental element—that is, proof of the defendant’s purpose. It would retain the imposition of notification requirements only on those who commit the offence for reasons of sexual gratification, which the Government are rightly concerned about. However, it would prevent defendants adding to the distress of their victims by running a wholly unmeritorious defence which may, in some cases, result in them escaping justice. I beg to move.

[Baroness Butler-Sloss (CB)]

My Lords, I have put my name to this amendment and I also support the Bill. I say to the Minister that the amendment is intended to be helpful.

I have been reflecting on the possibility that this might happen to me. From time to time, I wear very wide skirts, and more than once, in going up and down the stairs to the Tube, the skirt has come right up. I can just imagine a young man thinking it irresistible to stick his iPhone under my skirt as it goes right up for a lark. He might then say that it was not intended and that he did not think he would humiliate me. Quite simply, I would not be humiliated, alarmed or distressed. I would be extremely angry. And if I got the chance, I would put my leg exactly where you think I might. Bear this example in mind. In my view, it is not covered by the current wording of the clause because the action lacks intent and, much more importantly, was done to an elderly woman who then did not suffer any of the suggested reactions. As my noble friend Lord Pannick said, there is a gap—a manhole—and victims such as myself would not be covered.

I am sure the Minister had no hand in drafting this, but it is a well-meaning example of male paternalism. Nice, decent elderly men think that this is how all women would feel, but I am one who does not. For that reason, I strongly support this amendment.

15:30

[Lord Hope of Craighead (CB)]

My Lords, I too support the Bill. I have seen something happen to a man’s kilt that was almost exactly as described by the noble and learned Baroness and equally embarrassing.

With great respect to those who tabled the amendment, I am not quite sure that they have found a solution to the problem they have identified for a reason I shall try to explain. New Section 67A has a number of subsections and, as I read it, subsection (1) describes the action of the person and subsection (3) describes the purpose for which the action is being taken or resorted to. The trouble with “invading the privacy of B” is that those words describe the action. The words in new subsection (1)(a),

“operates equipment beneath the clothing of another person”,

is an example of invading the privacy of that person by operating something beneath their clothing.

Therefore, I wonder whether the amendment is entirely right. The purposes are set out in new subsection (3) and my problem is that the wording of the amendment describes acts rather than purposes. We are in Committee and it might be worth reflecting on the aim—which I quite understand is being properly addressed by the words suggested.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I, too, fully support the underlying objective of this legislation, and apologise for not having played a part in any of the earlier processes.

Reading these amendments today has given me pause for thought along the same lines as my noble and learned friend Lord Hope of Craighead. My noble friend Lord Pannick describes this as a manhole or loophole in the legislation that can be got round. However, the whole point, surely, of new subsection (2)(c) is to limit the application of this provision. You look for a purpose and then you define the purpose in new subsection (3). However, if you include within that any invasion of the privacy of B, frankly, you might as well strike out the whole requirement for a purpose. Whether, as my noble and learned friend Lord Hope said, this is to be regarded as a purpose at all, if you do what is set out in new paragraphs (a) and (b), inevitably you are invading the privacy of B. Therefore that makes it otiose to have any reference to a purpose at all; it is unlimited.

As for an unlimited provision, I am agnostic—or hesitant—as to whether that is a good idea, but it is no good persuading yourself that you are consistently with a purpose and then accommodating the amendment.

[Lord Faulks (Con)]

My Lords, I too apologise for not having been here at Second Reading, but I have had the opportunity of reading the short debate.

In Section 67 of the Sexual Offences Act 2003, there is a mens rea, as it were, simply for the purposes of obtaining sexual gratification. Unfortunately, one has to pose the question of why anyone is doing this at all—I think it used to be assumed that it must be for some form of rather strange sexual gratification—and this addition of “humiliating, alarming or distressing” is added to cover the possibility that there might be some other motive. Those words are familiar and often interpreted in one context or another in the criminal law, whereas I am unaware—I will be corrected if I am wrong—that the concept of invading privacy finds much resonance in the criminal law, although of course it is reflected in other aspects of our law, not least in Article 8 of the European convention.

The noble Lord, Lord Pannick, rightly said that we do not want anyone who should be capable of relying on a defence to have one in circumstances where it would be unattractive if they did, and he cited a particular instance of someone having a laugh. He then gave the game away by saying it would be unfortunate if they could say this despite the distress that might be caused to the individual who had been the victim of this. Whose laugh are we talking about? Presumably we are talking about misjudged humour on the part of the perpetrator, not the amusement of the victim of this invasion. I take the point made by the noble and learned Lord, Lord Brown, that if there is to be a purposes clause, it is sufficiently wide. I think a magistrate directing himself or herself with the addition of a clerk would have no difficulty in considering this; nor would a recorder have any difficulty in directing a jury to consider this, so that if somebody said in their defence, “I was only doing it for a laugh”, they simply would not be believed.

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

My Lords, I agree with what was said by the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss. I am not sure that invading privacy is not just as much a purpose as an activity. I shall be brief in support of Amendments 2 and 3 in my name and in the name of my noble friend Lady Burt of Solihull.

I made it relatively clear at Second Reading that I would have preferred the specified purposes provision to be omitted altogether, and in that regard I go further than the agnosticism of the noble and learned Lord, Lord Brown, and the point made by the noble Lord, Lord Faulks. That would mean that an offence would be committed by anyone taking upskirting images without the consent of the victim, though I would add a different proviso: so long as the action of taking or recording the images was not accidental. This could have been quite easily achieved in the legislation by the use of a word such as “deliberately”, and would have constituted an acceptable required level of mens rea—or guilty state of mind—to constitute the behaviour criminal. But my chief concern, and that of my noble friend Lady Burt and others, has been to ensure that no one is permitted to avoid criminal liability by running the defence that he lacked the required purpose. The amendment by the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, is designed to achieve that end.

I would add another problem that has not been covered. There is a concern that the specified purpose in new Section 67A(3)(b)—that is “humiliating, alarming or distressing” the victim, would be entirely absent, not only in the case of the robust constitution professed by the noble and learned Lady, Lady Butler-Sloss, but also in a case where the perpetrator intends to avoid detection by the victim by taking or recording the images without the victim knowing. If the victim is not to know of the behaviour, then she cannot be humiliated, alarmed or distressed by it. In such a case, the only remaining—

[Lord Faulks]

I thank the noble Lord for giving way. The distress may not be something the victim is aware of at the time it takes place, but were they to become aware—which ex hypothesi they would in the case of a prosecution—surely then they would suffer humiliation and distress, having found out what had been done to them.

[Lord Marks of Henley-on-Thames]

I do not accept that, because in some cases these images would be published and a prosecution would follow without the victim ever being traced. The victim may not know the images are of her—there may be distinctive parts, there may not—but there may be cases where distress can come either with the prosecution or later. In the proposed new section as it stands, the prosecution has to prove that the intention of the perpetrator was to bring about that distress. That seems an unnecessary complication and hurdle to erect in front of the prosecution so that it has to prove that purpose to secure a conviction.

There may well be cases in which the perpetrator can say that sexual gratification, whether for himself or another person, was not his intention or purpose—the example has been given of “having a laugh”. In Amendment 2, we have identified financial gain, where these images are to be published to make money, as another intention. In Amendment 3, we have identified entertainment or amusement, which is another way of saying “having a laugh”, as another.

The noble and learned Lord, Lord Keen, has argued that financial gain will be achieved by the creation of these images or recordings only if they are to be sold for someone’s sexual gratification. I am not sure that this is entirely true. I believe that, in some circumstances, financial gain may be made by unscrupulous individuals peddling sick humour arising from such images, with no intention on the perpetrator’s part to secure sexual gratification for anyone, whether others may view them for that purpose or not. The purpose of the perpetrator must be proved, not the coincidental fact that others may get sexual gratification from viewing such images later.

The amendment moved by the noble Lord, Lord Pannick, is elegant and cleverly covers our point. However, the noble and learned Lord, Lord Keen, indicated to us that he might look on that amendment favourably even if I have not persuaded the Government—I am not sure that I have persuaded the Minister—of the merits of our amendments. I hope that I have done so; I do not see the difficulty in accepting our amendments. We regard them as improving the Bill by specifically outlawing taking or recording images for financial gain or for entertainment or amusement. Our amendments can be taken with those in the names of the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, which I hope the Government will accept in any event. The point is to avoid people who clearly should be convicted of offences under this new and welcome legislation unjustly running defences of absence of the relevant purpose and getting away with it.

[Baroness Burt of Solihull (LD)]

My Lords, I will add briefly to the comments of the noble Lord, Lord Pannick, the noble and learned Baroness, Lady Butler-Sloss and my noble friend Lord Marks. As the noble Lord, Lord Pannick, will already have gathered, we welcome Amendment 1, which would widen the offence to include,

“invading the privacy of B, whether or not by”,

humiliating, alarming or distressing them, for the reasons he has given.

Amendment 2 would widen the motivations to include financial gain by the person who took the photo or whoever has distributed it. Upskirting images are freely and easily available on the internet; this amendment spells out that anyone profiting from their distribution is committing a criminal offence.

Amendment 3 cuts off the defence that a group of “lads”—however old they may be—were bonding, having a laugh and did not mean any harm. It is not okay, whatever the motivation of the perpetrator or perpetrators, if the person has not consented. I believe that it is worth spelling that out. These points deserve to be made even if they do not make it into the Bill.

[Baroness Chakrabarti (Lab)]

My Lords, once more I rise in support of the Bill, and I know that it is rightly supported by Members on all sides of the House. After a lot of thought and some discussion, including with the noble Lord, Lord Pannick, I will stick to my Second Reading position that the Bill should pass through this House swiftly and completely unamended. I have two reasons for sticking to that position, the first pragmatic, but no worse for it, and the second a legal policy reason.

I will take the amendments in reverse order. I am very glad to hear that the noble Lord, Lord Marks, has abandoned his earlier preference for strict liability sex offences, which would be a very illiberal innovation in our criminal law. I take his point about accidental occurrences and so on, but I do not find either Amendment 2 or Amendment 3 to be particularly attractive or to add anything to the Bill.

15:45

That brings me to the trickier conundrum of the unsurprisingly elegant amendment from the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss. I will be clear: I prefer their drafting. It is a more perfect, forensic approach to this criminal activity that we are trying to catch than the Bill’s wording. But here is my problem: the pragmatic concern is that I do not want to send this Bill back to the House of Commons in its current state—for the avoidance of doubt, I mean the current state of the House of Commons, not the current state of the Bill. I do not want this very important additional protection for women in England and Wales to fall by the wayside. I do not want the perfect to be the enemy of the good at this febrile political moment, when legislators are not able to do everything we would prefer them to do.

That is my pragmatic point, but there is a serious legal policy point as well: the language with which this offence has been formulated comes from the criminal statute book of another jurisdiction not very far from here—it comes from Scotland, where, we are told, this offence has been in operation without the spurious defences that great legal minds in your Lordships’ House have posited. These defences have not successfully been made and the narrow interpretation of the word “humiliate” has not been used in Scotland. I am concerned about your Lordships’ House doing and saying anything on the public record that would cast that broader interpretation of “to humiliate” into doubt in the Scottish jurisdiction. While I absolutely would prefer the formulation from the noble Lord, Lord Pannick, I want, at least for the time being, because I believe that the Government say that this offence will be under review for a short period, to prefer, in concert with other noble Lords—especially the Minister, whose words will really count for the purposes of Hansard—a more objective reading of this concept of humiliation, which is not necessarily about the feelings of the victim of the offence. It is about the intended action of the perpetrator.

In thinking about this, I have looked at many dictionary definitions of the verb to humiliate. Like the noble Lord, Lord Pannick, and other noble Lords, I too was concerned that the test of causing a humiliation might be too high: it sought too dramatic and negative an emotional effect on the victim. However, if noble Lords look at dictionary definitions of the verb “humiliate”, or at synonyms in thesauruses and so on, they will find that the test is not as high as they might think. To humiliate means to humble, to lower, to demean, to crush, to interfere with the dignity—that is a phrase I have seen in such dictionaries and thesauruses. Surely in 2018 we can agree that to intrude on a person’s privacy in this way—usually a woman, although I agree that it could be a man in a kilt—can only be to somehow lower, crush, demean, humble, et cetera. Otherwise, there is no laugh, no entertainment. If it were not intrusive, it would not be funny, entertaining, amusing, et cetera. That is one reading, the reading that has clearly worked to date in Scotland. It is the reading I prefer, in order not to cast doubt on that criminal offence and its enforceability in Scotland and to be in solidarity with that system and those victims.

If I am proved wrong down the road, so be it. Then there would be a further conundrum about how to ensure that both jurisdictions improve the formulation of the offence, but for the moment I do not see that it is necessary and I make that argument of interpretation alongside the pragmatic one about the need to complete the passage of this vital Bill, on which we can all agree, through this House.

[Baroness Vere of Norbiton (Con)]

My Lords, I thank all noble Lords who have taken part in this short debate. The Bill creates two new offences to capture instances where a person takes an upskirt image for the purpose of obtaining sexual gratification and/or causing humiliation, distress or alarm to the victim. It also ensures that the most serious offenders, where the purpose of the offending is for sexual gratification, are made subject to notification requirements—colloquially known as being put on the sex offenders register. In speaking to Amendment 1, I will speak also to Amendments 2 and 3.

Amendment 1, tabled by the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, does not add an additional purpose but replaces the purpose of humiliating, alarming or distressing the victim with a purpose of invasion of privacy, whether or not the perpetrator intends to humiliate, distress or alarm the victim. The prosecution would therefore need to show that the perpetrator intended to invade the victim’s privacy—or to obtain sexual gratification under the existing first purpose—to be guilty of one of the new offences.

Amendments 2 and 3, tabled by the noble Lord, Lord Marks, and the noble Baroness, Lady Burt, would add a third and/or a fourth purpose for which a perpetrator could commit either of the new upskirting offences contained within the Bill. They seek to ensure that those who commit upskirting for financial gain, or for entertainment or amusement, would be caught by the offences. There is support, as we have heard today, from all sides of your Lordships’ House to ensure that the law is suitably robust to protect victims from the distressing practice of upskirting. I recognise that these three amendments are well intentioned and that noble Lords are trying to be helpful, but they are unnecessary and may delay the passage of what is a good Bill as drafted. I thank the noble Baroness, Lady Chakrabarti, for her support in this.

Amendment 1 seeks to address concerns that perpetrators can argue that they had no intention to humiliate, distress or alarm the victim and, by doing so, get away with this heinous behaviour. The amendment is based on the view that, because by its very nature the act of upskirting is an invasion of privacy, it would be easier for a perpetrator to be caught by the Bill if it was drafted in this way, compared with the need to establish an intention to humiliate, alarm or distress the victim, as it is currently drafted.

The amendment would include those who may claim they committed an act of upskirting for financial gain, such as the paparazzi, which is the issue that Amendment 2 seeks to address; those doing it “for a laugh” or for entertainment or amusement, which is the issue that Amendment 3 seeks to address; or indeed those who claim that the victim could not have felt humiliated, distressed, or alarmed because they did not know that upskirting had taken place.

However, I am not convinced that Amendments 1, 2 and 3 address these specific concerns any better than the purposes as currently drafted, and I remain confident that the existing purposes will capture all those who should be criminalised for this behaviour, including those who would come under the proposed purposes set out in the amendments. Obtaining sexual gratification and humiliating, alarming or distressing a victim is terminology which is clear, appropriate and familiar to criminal justice agencies and the courts. I thank the noble Baroness, Lady Chakrabarti, for her definition of “humiliating”. I too have looked it up in a dictionary and it is indeed very broad; nor is the bar set particularly high, I think.

Perpetrators of upskirting will likely have several different purposes or motivations when conducting themselves in this way. For example, if someone took an upskirt image because of their voyeuristic tendencies or because they were going to put it on a pornographic website, or have it published in some other way, they would likely be captured because there is a clear inference that their purpose was to obtain sexual gratification or so that another person could obtain sexual gratification.

It is no defence, with regard to the current purposes, to say that the victim was not aware that an upskirt image had been taken and therefore would not actively feel humiliated. It is the intent of the perpetrator when upskirting their victim which is key here: this is a fundamentally covert practice and the victim may not know it is happening at the time. The fact that the victim is therefore spared the humiliation, alarm or distress when the upskirting occurs does not change the fact that this was the perpetrator’s intent in taking the image in the first place. If it was not, the most likely alternative is that the perpetrator intended to obtain sexual gratification, which remains the other purpose in any event.

In relation to Amendment 2, if an upskirt image of a celebrity is published in a newspaper or shown on any other media outlet, the image will be of interest and therefore may have value because of the humiliation, alarm or distress that is, or is intended to be, caused to the victim. Whether or not a person was paid for the image does not detract from the humiliation caused, but the act of offering it for publication might be taken into account at the sentencing stage as making the offence more serious. It does not matter whether it was the person who took the image or the person they intended to share it with who has the purpose of obtaining sexual gratification or causing humiliation—the new offences apply in either case. Indeed, where there is sufficient evidence that the purpose for taking an upskirt image was, for example, to humiliate the victim, a perpetrator could be charged regardless of any other reasons, financial or otherwise, they might have for taking the photograph. There is also a concern that “financial gain” is itself not defined and would need to be in order to be properly understood and interpreted in the context of upskirting and other sexual offences legislation.

Turning to Amendment 3, if someone takes an upskirt image “for a laugh”—or, to put it another way, for entertainment or amusement—it is clearly implicit that the laugh, entertainment or amusement derives from the humiliation, alarm or distress caused to the victim. The primary reason the upskirt image has entertainment value, to the perpetrator or anyone else, is again because of the humiliation, alarm or distress caused to the victim. Therefore, this behaviour will be caught by the purposes as currently drafted.

It is worth noting that Amendment 1 could limit the flexibility the Bill currently provides—for example, the existing purpose of intending to humiliate, alarm, or distress covers a case where a person takes an upskirt image to bond with friends or peers. It is less clear that the courts would consider that the friend—or “the lad”—looking at these images could be said to have the purpose of invading the victim’s privacy. This could be termed as a loophole.

I also wonder whether Amendment 1 would overcome the evidential issue that the noble Lord is concerned about. It is at least as arguable that the intent to humiliate is as intrinsic to the practice of upskirting as the intent to invade privacy. Surely the likely effect of the amendment would be to shift the focus of argument from whether a person intended to humiliate or distress a victim to whether they intended to invade their privacy. At this point I turn to the noble and learned Baroness, Lady Butler-Sloss, and her blowing-up skirt. Would she have the expectation of privacy if her skirt had blown up? That argument would be had in the courts—another possible loophole, or indeed a manhole.

16:00

When considering how this amendment is framed, we must also keep in mind the specific gap in the law which these new offences address: those cases of upskirting which happen in a place or in circumstances where it could be argued that there was no reasonable expectation of privacy or no privacy to be invaded. It is therefore possible that by introducing a notion of privacy into these new offences, uncertainty would once again arise in relation to the same problem that they are being introduced to address.

The Bill reflects the parameters of similar offences in Scotland, an issue raised by the noble Baroness, Lady Chakrabarti. Changing the purposes in this Bill, which applies to England and Wales, might suggest that we feel that the Scottish legislation does not go far enough. However, our Scottish counterparts have advised that, following an analysis of reported cases since the introduction of the offences, there has been no indication that their provisions are unduly restrictive or that they have caused problems for prosecutors. There is therefore no evidence to suggest that the legislation will fail, as feared by the noble Lord, Lord Pannick, or that the purposes are not helpful, as noted by the noble Lord, Lord Marks.

The new offences, once in place, must work as intended. That is why the Parliamentary Under-Secretary of State for Justice, Lucy Frazer MP, committed on Report in the other place to the Government reviewing the operation of these offences two years after they come into force. This will include working with the police and the CPS to carry out a review of cases to identify any issues with the legislation. We will report our findings to Parliament on completion of the review.

I have listened carefully to all noble Lords who have contributed to the debate this afternoon. I recognise that the amendments in this group are well intentioned and designed to be helpful. However, I am confident that the Bill as drafted achieves what it sets out to do. Any amendments made in your Lordships’ House will need to be considered in the other place in due course. I do not believe that any of these amendments improves the Bill in a way that merits a potential delay. On that basis, I respectfully ask the noble Lord, Lord Pannick, to withdraw his amendment.

[Lord Pannick]

I am grateful to the Minister for her thoughtful and detailed response to my amendment, and to all noble Lords who have participated in this debate. I accept that, as the noble Lord, Lord Faulks, said, distress for the victim is almost inevitable once she knows of the act of upskirting—though not in all cases, as the noble and learned Baroness, Lady Butler-Sloss, has told the Committee. The problem is that the offence as defined in the Bill will require proof beyond a reasonable doubt that “humiliating, alarming or distressing” the victim is the purpose of the wrongdoer.

I see the force of the Minister’s point that the “laugh” can be said to be the consequence of humiliation, alarm or distress. The difficulty remains, however, as the noble Lord, Lord Marks, pointed out, that it will almost always be the intention or purpose of the wrongdoer that the victim should not know of the act of upskirting. That would enable the wrongdoer to argue that it was not his purpose to humiliate, alarm or distress, although he will be forced to concede that once the victim knows what has happened, she—with the exception of the noble and learned Baroness and others who think like her—will be humiliated, alarmed or distressed. The prosecution have to prove purpose. That is the problem, as I see it.

The noble Baroness, Lady Chakrabarti, told the House candidly that she would prefer the drafting in Amendment 1—I see her nodding. She expressed two concerns, which were echoed by the Minister. The first is a pragmatic concern that this Bill should not be sent back to the other place because that will cause delay and there are uncertainties about what would happen to it. With great respect, that is a wholly unrealistic concern. If this amendment has force, and if the Government were to accept it—I know they will not—or were to accept some redrafting that addresses the concerns that have been expressed, it would be simply inconceivable that the House of Commons could not find government time to consider the matter again. How long would it take? On ping-pong, the House of Commons deals with the most complex matters in 30 minutes or an hour. I simply do not accept that that is a real concern—it could be raised about any Bill on any important subject. It is surely our job to try to get legislation right.

The second concern related to Scotland, where these defences have not so far succeeded. There is limited experience there. Our concern is not to cast doubt on Scottish legislation but to raise real concerns about what will happen in practice. We are enacting legislation, and we should get it right, not just follow the Scottish experience if we are persuaded that amendments are required.

I found the points made by the noble and learned Lords, Lord Hope of Craighead and Lord Brown of Eaton-under-Heywood, more troubling. As I understood them, neither disputed that the noble and learned Baroness, Lady Butler-Sloss, other noble Lords and I have raised real concerns about potential loopholes—or manholes. I see the noble and learned Lord, Lord Hope of Craighead, nodding. Their concern is whether the solution we are proffering is the right one. I will consider that, as will, I am sure, the noble and learned Baroness, Lady Butler-Sloss, before Report.

I would welcome the opportunity to discuss with all interested noble Lords and the Minister whether we can reach agreement on an amendment that in no way damages the strength of the Bill but removes a potential loophole. I am not wedded to this particular solution; I am concerned about the problem. I think we have to get this right. In the other place, when this subject was discussed in June, Diana Johnson MP asked,

“how many hours of debate … will be required for Members to arrive at the conclusion that the taking of photographs underneath, mainly, women’s clothes by perverts is a bad thing?”—[Official Report, Commons, 18/6/18; col. 48.]

We have taken 45 minutes, which I think is a valuable use of parliamentary time. I think this is a subject we should return to, no doubt briefly, on Report, and a subject that may well require an amendment to the Bill, which I hope we can achieve by agreement. In the meantime, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Amendments 2 and 3 not moved.

Amendment 4

Moved by

[Baroness Burt of Solihull]

4: Clause 1, page 2, line 8, at end insert—
“(3A) It is an offence for a person (A) to disclose an image of another person (B) recorded during the commission of an offence under subsection (2) if the disclosure is made without B’s consent. (3B) It is a defence for a person (A) charged with an offence under subsection (3A) to prove—(a) that disclosure of the image was necessary for the purposes of preventing or detecting crime, or(b) that (A) did not disclose the image with the intent of disclosing an image of another person’s genitals, buttocks or underwear.”

[Baroness Burt of Solihull]

My Lords, Amendment 4 stands in the names of my noble friend Lord Marks and myself. The proposed new subsections (3A) and (3B) in Amendment 4 would widen the offence to all disclosures made without consent, with a get-out clause to cover the situation if a picture is inadvertently taken—for example, by a member of the paparazzi.

Researchers from Durham University have found that upskirt videos are easily and freely available on mainstream pornography websites. Over a period of just six months they found close to 2,500 videos on the landing page of the UK’s top three most accessed porn sites, depicting acts that can be classed as forms of image-based sexual abuse. Importantly, these titles were on the very front page of these mainstream sites, freely and easily accessible for a first-time user. They are not hidden.

We know from victim-survivors that their intimate images often end up on porn sites, viewed thousands of times and seriously amplifying the harms that they experience, making things worse. Once the images are uploaded to porn sites, getting them taken down from all sites is then extremely difficult.

The noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Pannick, mentioned Scotland. As we know, Scotland has recently criminalised the distribution of upskirting images. Its new law came into effect in July last year. Since then, 421 incidents have been recorded by police. Analysts have concluded that while some of these cases might have been recorded as a different crime or offence had they occurred prior to the new law coming into effect, it is likely that the clear majority of them would not have been classified as a sexual crime.

It is also the case that the enactment of that legislation extended the criminal law to criminalise certain conduct that previously might not have been illegal. This analysis demonstrates that an offence of distribution is a useful tool for the police, and I hope the Minister will also recognise the value of such an offence.

[Lord Swinfen (Con)]

My Lords, I have one quick question: does this apply to men wearing kilts as well as to women wearing skirts?

[Baroness Vere of Norbiton]

My Lords, I can address that question very quickly: yes, it does. This is a non-gender-specific piece of legislation.

Amendment 4 would create a further offence of disclosing an upskirt image to another person without the consent of the person in the image. It would also provide for two defences for this offence: namely, that the disclosure of the image was necessary for the purposes of preventing or detecting crime, or that the image was not disclosed with the intent of disclosing an image of another person’s genitals, buttocks or underwear.

The Government share the concerns around the onward sharing of upskirt images and understand the very real harm that this causes victims. It is important to send a clear message that sharing such images without consent is unacceptable and causes humiliation, alarm and distress. It is therefore important that we ensure that the law is sufficiently robust to protect victims from this disturbing practice. However, the Bill is intended to close a small gap in the law around the taking of upskirt images, which is just one aspect of a far wider problem. Legislating for the non-consensual sharing of intimate or naked images, including upskirt images, is a far more complex issue than the offences covered by the Bill.

That is why the Parliamentary Under-Secretary of State for Justice committed in the other place to ask the Law Commission to review the taking and sharing of all non-consensual intimate images. This will be a broad review looking at how technological change has enabled new types of harmful behaviour and how the law needs to evolve to tackle it. The Ministry of Justice is currently working with the Department for Digital, Culture, Media and Sport and the Law Commission to consider how best to take this important and wide-ranging piece of work forward. This will build on the detailed and insightful report on online and offensive communications published by the Law Commission on 1 November. The report makes several recommendations about how the criminal law could be reformed to tackle abusive and harmful online communications.

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The Government are committed to providing a cross-government response to those complex issues to ensure that such abuse is tackled appropriately and effectively. As drafted, the new offences in the Bill capture someone who records an upskirt image for the purpose of obtaining sexual gratification for themselves or so that another person can do so. The same is true for the second purpose of humiliating, distressing or alarming the victim.

If someone convicted of taking an upskirt image has also shared it, whether on a pornography site or elsewhere, any additional harm caused by this would also be taken into account in sentencing. The two-year maximum sentence for the new offences is a serious penalty that fully reflects the harm caused.

Furthermore, a matter which is grossly offensive or of an indecent, obscene or menacing character, which may include the distribution of non-consensual intimate imagery, such as an upskirt photo—or the threat to distribute the same—are activities already criminalised under Section 127 of the Communications Act 2003 and Section 1 of the Malicious Communications Act 1988. If there was a course of conduct in relation to this type of behaviour, because it happened on more than one occasion, it could also be captured by the Protection from Harassment Act.

We have laws to cover distribution, but we recognise that we need to review all of them to ensure that there are no gaps. There is also an important role for industry to play in tackling online abuse. That is why YouTube, Facebook, Twitter and others all have terms and conditions that state that they will remove upskirt images.

However, important questions remain that must be considered before we can legislate effectively in this area. The amendment could criminalise someone who received and shared an upskirt image, even if they did not know that it had been taken without consent. It is not always obvious from images whether the person being photographed consented.

Legislating for the distribution of upskirt images in the Bill risks over-criminalising or inappropriately criminalising all aspects of this behaviour. By legislating for upskirt images in isolation, there is a risk of cutting across broader work under way in this very important area and potentially jeopardising the opportunity to legislate more widely. On this basis, I urge the noble Baroness, Lady Burt, to withdraw her amendment.

[Baroness Burt of Solihull]

I am grateful for the Minister’s comments. I very much take her point that this is a complex issue and that other laws have been effected and could be used. It will have become apparent to the Committee that I am not a lawyer, but I have a strong sense that this is an issue that we should consider. I take the point about the Law Commission review, which is under way at the moment, and with my noble friend Lord Marks and others, we will reflect on the Minister’s comments. For the time being, I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

Clause 1 agreed.

Clause 2 agreed

House resumed.

Bill reported without amendment.

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Sitting suspended.