Criminal Justice and Courts Bill

Debate between Baroness Berridge and Baroness Thornton

Monday 20th October 2014 Lords Chamber

[Baroness Berridge]

My Lords, I support the arguments made by my noble friends in relation to this matter. I am pleased to say that, unlike the previous amendment regarding knife crime, there has been agreement, particularly among the Back Benches and the government Benches, on the need to act. I pay tribute to my noble friend Lady Morris of Bolton, who joined me in amendments in Committee but is not able to be here today.

One point that I would make in addition to those that have already been outlined is that these images are not always taken with consent. The development of technology has meant that in situations unbeknown to someone, images are taken through hidden devices and mobile phones. So it might not even be an old Polaroid; people might be completely unaware that an image has been taken, and the first that they know of it is when their ex-partner releases it into the public domain, adding even greater trauma to what is an incredibly traumatic situation for any victim. Unfortunately, there has been the development of certain professional sites where people are making profit out of this situation.

I also join in welcoming the Government’s response in relation to this. I have never found a firm view at the Ministry of Justice on this matter; I have always found there to be an open door and a willingness to consider it. As has been outlined, technology has been leaping ahead in relation to this matter. I pay tribute to the work of organisations such as Women’s Aid and to my right honourable friend Maria Miller, who led a Back-Bench debate in the other place on this issue and has been campaigning vociferously in relation to it.

[Baroness Thornton]

My Lords, I am pleased to say that we on these Benches support these amendments. Some time ago my right honourable friend Yvette Cooper said that people who post intimate images of their former partners online in so-called revenge porn attacks, or who blackmail them with such images, should face new criminal charges, so of course we support the amendments.

The use of intimate, private sexual images as a weapon with which to embarrass, humiliate and degrade is a crime, and it is right that it should be recognised in law. The new offence is a positive step, although in itself it is not adequate to address the underlying societal attitudes and behaviours that create and legitimise sexual violence, abuse and harassment in all its forms, so a government commitment to addressing those issues is also vital. The noble Baroness, Lady Brinton, is quite right to raise the issue of young people and the importance of not criminalising them or, for example, having them put on the sex offender register at a very early age for doing the extremely stupid things that young people are sometimes prone to doing.

The Government’s amendments will ensure that this is enacted. However, we need to ask today how effective they will be. I therefore have a series of questions to put to the Minister and to the noble Lord, Lord Marks. Could the Minister explain why this offence was not made part of the Sexual Offences Act? Will convictions for this offence be recorded by the CPS as a sex offence—in other words, would the person convicted be on the sex offender register?

As it stands, depending on the interpretation of “distress”, the law will provide a remedy to a victim who is distressed, but not angry. Professors Rackley and McGlynn, who have been advising many Members of the House throughout the discussions about revenge porn and rape porn, explained that the focus of the law should be on the offender’s actions and the absence of consent, not on the victim’s response, and I think that is right. Does the distress element also place an unnecessary additional burden on the prosecution? Professors Rackley and McGlynn contend that the mental element of the offence should be the intentional act of posting private sexual images without consent, including for the purpose of financial gain. We have to ask whether the issue of distress could actually significantly limit the effectiveness of this offence.

There is concern about the restriction of the offence to identifiable images. It should be immaterial whether someone else recognises the person in the relevant image. The publishing of private sexual images without consent should be a criminal offence, whatever the motivation of the offender and whatever form the victim’s response takes. It is the absence of consent that is fundamental. Would the restriction of the offence to identifiable images result in unnecessarily complicated evidential debates in court?

I will speak briefly to my own Amendment 106. It seems to us that we need to monitor the effectiveness and the implementation of this new law. We believe that the proposals of Clause 31 do not fulfil the Prime Minister’s commitment to equate online restrictions with the BBFC’s guidelines. Although we recognise that legislation in this area is very complex, it needs to be recognised that the Government have not yet solved the problem. It is important that there is a commitment to review the provisions of this clause within a year or so to assess their effectiveness: the number of prosecutions brought, the number of convictions, et cetera. Following a review of the new provisions, if they have not proved effective, the Government should consider the wholesale review of the regulation of obscenity and pornography. This is to ensure that the law is fit for purpose in our technological age and to reorientate the law in this area away from disgust and distaste and toward a focus, perhaps, on cultural harm—a discussion that we have had in this House before. It is therefore important to put in the Bill that 18 months from enactment would be sufficient time to see what was happening to the new regime and that the principle should be that an independent review is conducted.

Marriage (Same Sex Couples) Bill

Debate between Baroness Berridge and Baroness Thornton

Monday 8th July 2013 Lords Chamber

[Baroness Berridge]

My Lords, I, too, wish to speak to this amendment. While the law retains adultery as a ground for divorce, I believe that it should be applied equally. I think that I am right in recalling that perhaps this could have been short-circuited, as I believe there remains on our statute books, although it is not in force, a whole provision in relation to no-fault divorce. However, until we are in the position where people do not use fault as a ground for divorce, it is my submission that it should be applied to all situations.

There is inequality here. It is as unjust to gay couples as it is to heterosexual couples, as neither of them can ask for divorce on the grounds of adultery with someone of the same sex. Although I appreciate any humour that we can inject into this debate, as my noble friend Lord Deben just did, this is a serious point. One has only to look at some of the support group websites that exist. The one that I have come across is for wives who subsequently discover that their husband is in a relationship with a man. The support group website that I looked at this evening talks about pain, loss, betrayal, confusion, loss of self-esteem and feelings of isolation. To be told that if your husband leaves you for another man it is just unreasonable behaviour, but if he were to leave you for another woman you could petition for divorce on the grounds of adultery, is, I believe, unjust.

Bizarrely, that means that the only couples in either of our marriages—heterosexual or same-sex—who are in a just situation are those to whom my noble and learned friend Lord Mackay referred: platonic friends who take advantage of this legislation. After all, as a sexual relationship was not the basis of their marriage, they cannot complain that adultery is not available to them. I think that we have left the law in not just a muddled state but an unjust one, and it is important to recognise that.

I accept that the noble Lord, Lord Pannick, says that this is the existing law, but if we are saying that culture is changing and we are changing the law on marriage, surely the same argument exists in relation to the grounds for divorce—that we must change. However difficult the definition of problems can be, there is a good case for saying that we have to change these grounds at the same time as we change marriage law.

[Baroness Thornton]

My Lords, I confess that I had trouble with the wording of this amendment, along the same sort of lines as the noble Lord, Lord Deben. It says,

“or a sexual act with a person of the same sex similar to adultery”.

I was wondering how similar and at what proximity, and whether you would want a judge to take that sort of decision. We can probably agree that the amendment does not serve even the purpose that the noble and learned Baroness wishes it to. We agree with the Government that it is unnecessary to replicate the requirement.

There have been several times in the course of today when noble Lords have referred to platonic relationships. Actually, there is no requirement to consummate a marriage; you can have a platonic marriage as a same-sex marriage or an opposite-sex marriage, so I am not quite sure what point noble Lords have been making there.

We also believe that it is unnecessary to legislate for dissolution on the grounds of adultery. It is sufficiently provided for, and I think that the Government got it right in consultation that the grounds of unreasonable behaviour exist. Indeed, since the commencement of the Civil Partnership Act in 2005, this has proved to be entirely unproblematic and I think we should just leave it as it is.