Criminal Justice and Courts Bill

Debate between Lord Faulks and Baroness Thornton

Monday 20th October 2014 Lords Chamber

[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.

[Lord Faulks]

My Lords, I thank my noble friends Lord Marks, Lady Grender, Lady Brinton and Lady Barker for Amendment 98 on the issue of revenge pornography. As the House has been told, I recently met with my noble friends to discuss this amendment, which I believe seeks—and this has been confirmed in the course of the debate—to achieve the same aim as the Government’s Amendments 103 to 105, 113 and 186 to 188. We particularly discussed whether the government amendment’s definition of “sexual”, when defining the material that the offence will apply to, is sufficiently explanatory.

My noble friend Lord Marks asked me, in the course of the debate, whether the additional subsections added anything to “sexual” or, as he put it, widened the ambit. I confirm that they do. The use of the word “or” makes that sufficiently clear. A photograph or film is sexual if it shows an individual’s exposed genitals or pubic area or shows something that a reasonable person would consider to be sexual either because of its nature or given its overall content. However, it would not be helpful to go further than this on the face of the statute or now by, for example, listing particular types of sexual material that would be covered. Such a list is unlikely ever to be exhaustive and its inclusion could potentially hinder the judiciary’s ability to interpret the wording of the offence in a flexible way.

My noble friend’s amendment is constructed in a rather different way to the government amendment and omits some important information, but I need comment very little on those details in view of the fact that, after some useful discussions, it has now been accepted by my noble friends on the Liberal Democrat Benches that the government amendment captures what this offence is all about.

The disclosure of this sort of material is undoubtedly extremely distressing for victims. They feel humiliated and are left deeply distraught both by the disclosure of very personal, sexual images of themselves and by the breach of trust involved in sharing images that had been considered private.

I pay tribute to my officials for working extremely hard on what is a very difficult offence to capture appropriately. We all know what this is aimed at, but it has been a considerable challenge to reflect it in the legislation. My officials have been carefully considering this problem with the relevant agencies and interested stakeholders such as the NSPCC and Victim Support. The testimonies we received, together with the efforts of a number of parliamentarians—many of whom have been identified in this debate—confirmed our intention to create a specific offence that will punish this pernicious practice.

The current law can already punish instances of this behaviour in certain circumstances. A number of offences can be used, and the recently updated guidance from the CPS has made clear that, where intimate images are used to coerce victims into further sexual activity, offences in the Sexual Offences Act 2003 can be used both where the victim is an adult and where they are a child.

This offence, however, will target very different behaviour: namely, the malicious disclosure of private sexual photographs or films. The offence seeks to target material, the disclosure of which would have the potential to cause the most harm to an individual. It will therefore apply to the disclosure of private sexual photographs or films of people, such as those which show them engaged in sexual activity or depicted in a sexual way where what is shown is not the kind of thing usually seen in public. In determining whether the picture is sexual, the court will be required to take into account both the nature of what is shown and the context provided by the whole of the pictures’ content. To commit the offence, the disclosure must take place without the consent of at least one person featured in the image and with the motivation of causing that person distress.

I will respond to a query posed by the noble Baroness, Lady Thornton, about whether this is regarded as a sexual offence in the same way as an offence in the Sexual Offences Act 2003, such as a sexual assault or voyeurism, is regarded. We absolutely agree that revenge porn is a very serious issue, with the potential to cause great harm. That is why we have introduced this criminal offence, with a substantial period of imprisonment. However, we do not think that it is appropriate to view it as a particular sexual offence in the same way as these other offences. Research in previous cases has shown that revenge porn—the emphasis here being on “revenge”—is perpetrated with the intention of making a victim feel humiliated and distressed rather than to obtain sexual gratification, which is what defines an offence as sexual. Of course, the definition says, “with the intention” of causing distress, so you do not have to have evidence of distress or some rather unnecessary distinctions about what is distress, or anger, and so on. Therefore the intention is there, and revenge lies behind it. That is not to diminish the seriousness, but more accurately to characterise what is the mischief we are aiming at.

The offence will apply equally offline as well as online—not just to images transmitted electronically but also to those which are disclosed in more traditional ways.

These amendments provide three defences available to those charged with the offence. First, it will be a defence for the defendant to prove that they reasonably believed that the disclosure of an image was necessary for the purpose of preventing, detecting or investigating crime. That, I hope, is self-explanatory, and finds its echoes in other legislation.

Secondly, where an individual adduces sufficient evidence that the disclosure in question took place in the course of, or with a view to, the publication of journalistic material and they reasonably believed that, in the particular circumstances, the publication of that journalistic material was, or would be, in the public interest it will be for the prosecution to prove the contrary. This defence will, in the rare cases to which we expect it to apply—and rare they will be—enable journalists and their sources to disclose images, for example with a view to publishing a commercial newspaper story, if they genuinely and reasonably believed there was a legitimate public interest in the publication. This is a stringent test but we believe it is necessary to ensure that the offence will not inappropriately interfere with press freedom.

Criminal Justice and Courts Bill

Debate between Lord Faulks and Baroness Thornton

Monday 21st July 2014 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, we on these Benches welcome the amendment. I welcome it personally because I took part in the debates in 2003 on the Sexual Offences Act and argued this case on behalf of Barnardo’s, Action for Children, the NSPCC and ECPAT. All the voluntary organisations concerned with child safety had already realised that the law would increasingly not cover the issue of the threat to children through new media. I thank Barnardo’s for its excellent briefing on this, my honourable friend Sarah Champion for leading such an excellent review of the law and the Government for bringing forward the amendment.

[Lord Faulks]

I am grateful for those brief but welcome interventions by a number of noble Lords, not least of course the noble Baroness, Lady Thornton, whose own interests in this matter she correctly recorded. I am grateful for that short debate. That concludes the debate on this issue.

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[Lord Faulks]

My Lords, I am grateful for the concern shown by the noble Baroness, Lady Thornton, and other noble Lords over these important provisions, which criminalise the possession of extreme pornographic images depicting rape. I appreciate that the intention behind the amendments is to ensure that we capture the appropriate material.

I also thank the noble Baroness, Lady Thornton, for meeting me, just as she thanked me for meeting her, to discuss these amendments. I was not invited to attend the BBFC meeting. I gather that it was a pretty horrific event, but clearly it has influenced all those who attended and I am mindful of that when considering the amendments.

I assure the Committee that I am aware of the sensitivities involved when discussing the sort of images that we are targeting. These images are at the extreme end of the scale and are most disturbing. Alongside the images targeted, however, there are of course depictions that, while deeply distasteful, might not warrant the full intervention of the criminal law. It is a difficult area but we must ensure that our distaste at some of this material is balanced, rightly, against the legitimate personal sexual freedoms of consenting adults.

Before I address the amendments, I should like to provide some background to the law as it currently stands and our proposals for reform. First, I should make it absolutely clear that the extreme pornography offence is an offence of simple possession, not one of publication, dissemination or broadcast. That is already covered by the Obscene Publications Act 1959. Section 63 of the Criminal Justice and Immigration Act 2008 makes it an offence to possess some kinds of obscene images. Such images must be pornographic and must explicitly and realistically portray necrophilia, bestiality or violence that is life-threatening or likely to result in serious injury to the anus, breasts or genitals. Clause 28 amends that category of material to include depictions of non-consensual penetration.

The offence was created following a full public consultation. There was considerable concern among respondents, and during the passage of the legislation through the other place, that the offence could have an unwarranted impact on the private sexual behaviour and personal freedoms of fully consenting adults. The offence was deliberately drafted with those sensitivities in mind, and I believe we should bear those in mind here. The offence targets only the most extreme obscene material—for example, images depicting extreme sexual violence and serious physical harm. It was not designed to make it criminal merely to possess every obscene image, however distasteful, although, as I have mentioned, the dissemination of that material will be an offence.

Last year, the Government were contacted by a campaign led by Rape Crisis South London and other women’s groups to extend the existing boundaries of the extreme pornography offence to capture extreme images depicting rape in the same terms as the equivalent Scottish offence. The Government listened to those concerns and agreed to extend the offence.

Against that background, I now turn to consider the amendments in question. Amendment 36A would remove the requirement that images of non-consensual sexual penetration be,

“grossly offensive, disgusting or otherwise of an obscene character”,

in order to be regarded as extreme pornography. Those terms are already well known to prosecutors and courts alike. They were drafted deliberately into the offence, and included in our amendment to that original offence, to ensure that the extreme pornography offence does not criminalise the simple possession of the sorts of images that it would not be illegal to circulate or distribute. To remove this necessity would be inconsistent with other aspects of the criminal law and would result in a possession offence that is too broad.

For convenience, I shall deal with Amendments 36B and 36D together, as they have similar, although not identical, effects. Amendment 36B would replace the Government’s amendments to the extreme pornography offence, including the relevant defence, with a broad provision that would criminalise the portrayal of any sexual activity that involves real or apparent lack of consent or any form of physical restraint which prevents participants indicating a withdrawal of consent. This is very broad. It could have the effect of bringing into the terms of this targeted offence the possession of pornographic images that depict any form of non-consensual sexual activity.

In the light of the balance that this Government have sought to strike with this offence, we believe that such an extension to the offence would be going too far. It would, I believe, widen inappropriately its scope and could make too wide a range of sexual activity subject to serious criminal sanction.

Amendment 36D also seeks to extend the parameters of the existing offence but would retain the necessity that the material be “explicit and realistic”. However, it would still extend the parameters of the offence too far and could capture a wide spectrum of sexual contact.

Amendment 36C seeks to explore the issue raised both at Second Reading and in the other place about the ability of the offence to deal with simulated rape scenes. I assure your Lordships that our provisions as they stand are already capable of covering the depiction of real or simulated non-consensual penetration. Both the amendment and the existing offence cover any portrayal or depiction of the acts in question. While the requirement is that the portrayal is realistic, it does not have to be real. As the noble Baroness, Lady Howe, mentioned, we have clarified this point in the Explanatory Notes to the Bill in response to these concerns.

Amendment 36E seeks to widen the scope of the existing offence to cover depictions that appear to portray incest, underage sexual activity and scenes involving sexual threats, humiliation or abuse. The protection of the country’s children from sexual abuse is a government priority. We have a robust range of offences and sanctions to deal with this truly dreadful offending, and it is a credit to the efforts of this House that our legislation in this area is rightly respected across the world. It is of course right that we keep the law in this area under review to ensure that it is fully equipped to protect our children.

Images of children are not specifically excluded from our extension of the extreme pornography offence, but we already have offences to cover the possession of indecent photographs and films of children. These offences have suitably robust sentencing levels and much lower thresholds in respect of the content of the images than the extreme pornography offence.

Finally, Amendment 36F would add to our provisions a requirement that, when evaluating images for the purposes of the offence, contextual material of certain kinds is taken into account. I appreciate that this reflects the drafting approach taken in the equivalent legislation in Scotland. However, we do not believe that the amendment is necessary: the court is already entitled to take into account all relevant evidence in determining whether material meets, or indeed does not meet, the requirements of the extreme pornography offence. Prosecutors and the courts already take the “context” of images into account when considering the existing extreme pornography offence. I hope that provides some reassurance to the noble Baroness.

The extension of this offence is well structured to ensure that the images we wish to capture fall within its parameters. The extension is in the spirit of the original offence and balances the need to criminalise the most extreme and potentially harmful or damaging material with the need to protect the lawful sexual freedoms and rights of others. Given the sensitivities involved, that balance has not been easy to achieve but I believe that we have achieved it with this reasonable, proportionate and important provision.

For those reasons, while I entirely understand the concerns expressed, the Government do not feel able to support these amendments. I hope that, with those assurances, the noble Baroness will feel able to withdraw her amendment.

[Baroness Thornton]

I thank the Minister for his considered, if somewhat disappointing, response. The point of the Committee stage of this sort of legislation—the House of Lords is particularly good at this—is to test whether this kind of clause does its job. I appreciate that the Minister thinks it does but I have to say that some of us think that one or two things in this clause need some attention. I am not going to delay the House any further by repeating what they are. The Minister said that the Government thought they had the balance right all the way through. I think there are one or two things to do with context that suggest the Government may not have got the balance right. We do not want to find ourselves in five years’ time with either no prosecutions because we did not get the balance right or with people not being prosecuted because we did not look at the things that experts are telling us are loopholes. Obviously I am happy to withdraw the amendment at this stage—apart from anything else I do not think it and my other amendments are as competent as they should be, for which I apologise—but I fear that we will be returning to this at a later stage in the Bill. I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Thornton]

My Lords, this has been a very good and interesting debate. We on these Benches support the principle of bringing forward legislation, probably along the lines that my noble friend Lady Kennedy suggested. We do not think that either of these amendments get us to the point where we want to be, as I think those who tabled them would admit, but they take us along that road and I hope we will see something emerge that does get us there.

Images described as “revenge pornography” are indeed a form of harassment and abuse. They constitute stalking and are humiliating. However, as well as a specific offence, what is also needed is the strong political will to tackle the underlying culture that creates and legitimises sexual violence, abuse and harassment in all its forms. That requires not only a government commitment to headline-making legislative reform but to ensuring effective implementation of any new offence and bringing forward compulsory sex and relationship education in our schools. The noble Baroness, Lady Brinton, referred to what goes in our schools. It is not good enough that this is done by voluntary organisations; it should be part of our curriculum. For the protection of our children, it really needs to be mandatory in our schools.

We on these Benches have problems with both these amendments, for different reasons, some of which have already been mentioned. For example, the amendment in the names of the noble Baronesses, Lady Berridge and Lady Morris, says that to commit the offence, the defendant must distribute the images,

“with the intention that he or a third person will”,

gain “sexual gratification” from doing so. That provision is problematic. As it is framed, no offence will be committed if the defendant discloses the image with a view purely to humiliate and embarrass the person in it. The motivation behind revenge porn is not typically to distribute pornography but to humiliate, embarrass and harass the victim. We need legislation that emphasises that, not the pornography aspect.

Likewise, with the amendment in the name of the noble Lord, Lord Marks, and his colleagues, we do not see why the offence should be limited to the circumstances where the individual is identifiable. As noble Lords have said, the motivation for this offence is to harass and abuse victims, and the harm will be done whether or not he or she is identifiable to others. There is some work to be done and, because we will have a long summer break before Report, I hope that we have time to undertake it. We on these Benches would be very happy to help to do that.

[Lord Faulks]

My Lords, this has been a very useful debate indeed. I will deal with Amendments 37, 38, 39 and 40 together, as they are clearly designed to deal with broadly the same issue, albeit in slightly different ways. They all seek to create a new offence banning the uploading or publishing of material that has come to be known as “revenge porn”. First, I will say that I have great sympathy for the intention that lies behind these amendments, as I said at Second Reading. The posting or publication of intimate material is despicable and cowardly, and we must ensure that such behaviour is appropriately dealt with by the criminal law.

Revenge porn is a broad term used to describe a range of offending behaviour. Usually, it involves an individual, often an adult ex-partner, uploading on to the internet sexualised images of the victim to cause them distress. Although revenge porn does not always specifically involve content that would be regarded as obscene, there is no doubt that the online sharing of intimate images without the subject’s consent can cause great distress and upset to the victim. Some of these images are posted widely across the internet and are often extremely difficult to remove.

Criminal Justice and Courts Bill

Debate between Lord Faulks and Baroness Thornton

Monday 21st July 2014 Lords Chamber

[Lord Faulks]

My Lords, these amendments seek to establish a licensing regime for non-EU providers of pornographic content. I am grateful to the noble Baroness, Lady Thornton, for her explanation and for meeting me last week to discuss in general terms the proposals contained in the amendments. I am also grateful to the noble Baroness, Lady Howe, for her support for these amendments and for her continued interest in this particular unfortunate aspect and her determination in trying to achieve through legislation better control of access to pornography.

The Government agree that the aim of protecting children from accessing inappropriate content is one that should be pursued, but for the reasons that I shall explain, we are unable to accept these amendments. As the noble Baroness explained, the intention behind this amendment is to build upon the current regulatory system in place, deriving from the Audiovisual Media Services Directive, which applies to services situated in the UK and the EU. So far the Government have taken the consistent approach to regulate only UK-based TV-like video on demand content that might seriously impair the development of children, since this can be actively enforced. This is in line with the Audiovisual Media Services Directive. However, we intend to introduce secondary legislation to make clear that material that has been or would be classified R18 by the British Board of Film Classification must only be provided behind effective access controls.

The Government’s approach for protecting children from other content of this nature that originates from beyond the EU focuses on giving parents the tools they want to limit access to certain types of content, via parental controls and filters. These technological solutions have the advantage of dealing with all types of content, regardless of whether the provider is situated in the EU. Consequently, children in homes with the filters enabled will not be able to access pornographic material on the internet.

With regard to the degree to which filters are established, all new TalkTalk, Sky, BT and Virgin customers are now being given an unavoidable choice about installing family-friendly filters. Hundreds of thousands of homes have already taken up the option of a whole-home family-friendly internet filter. TalkTalk has already started to contact existing customers and give them an unavoidable choice about installing filters when they log into their password-protected “my account” space. It has contacted more than 1.5 million already. BT, Sky and Virgin are developing their own individual solutions to enable them to prompt existing customers. By the end of 2014, they will have given the 19 million households that they supply with an internet connection an unavoidable choice about installing filters. Rollout will be done in phases to avoid overloading the systems.

Like current device-level filters and filters used by every school in the country, filter software is provided to the ISPs by well established web-filtering companies. These are very dynamic and use a combination of web trawling and human intelligence to ensure that acceptable sites are not filtered in error. Solutions also allow parents to apply different levels of filtering depending on the age of the family. As to the remaining internet service providers beyond the big four, the Internet Service Providers’ Association, which represents the smaller ISPs, has confirmed that overall these smaller ISPs are open to considering the options available to them for delivering additional controls. We welcome their commitment to keep the Government updated on progress and to share best practice between the smaller ISPs.

The difficulty with this amendment is that it would effectively be unworkable because it creates a two-tier system whereby non-EU providers of pornographic content would be subject to stricter regulation than UK and EU providers. It creates a different definition of pornographic material to be regulated and will therefore create uncertainty, inconsistency and lack of clarity rather than more security. Secondly, extending the scope of the type of content from TV-like content to include film clips and static images that originate from outside the EU would create further uncertainty and inconsistency across the full scope of the content in question.

The noble Baroness, Lady Howe, asked about the R18 legislation. I understand that the legislation has been drafted and is currently at the notification stage in Brussels. We hope to implement it in the autumn.

We of course share the concern that has been expressed all around the House about access to pornographic material, particularly by children, and are concerned to do all that we reasonably can. However, we are not convinced that these amendments are the answer and respectfully ask the noble Baroness not to press them.

[Baroness Thornton]

I thank the Minister for that answer and the noble Baroness, Lady Howe, for her support on this. That is disappointing. The Government are complacent about this issue and are depending too much on filters and on parental controls. We know that it is not working and that too many of our children are accessing hardcore porn too easily. The Minister needs to acknowledge that. The evidence is absolutely clear: the damage is already being done to our children and the Government are not doing enough to stop it. I fear that we will return to this subject at a later stage of the Bill. I beg leave to withdraw the amendment.

Anti-social Behaviour, Crime and Policing Bill

Debate between Lord Faulks and Baroness Thornton

Tuesday 12th November 2013 Lords Chamber

[Lord Faulks]

My Lords, I am a member of the Joint Committee on Human Rights, which looked at this issue, as with other issues in the Bill, and realised that there was a great deal of knowledge and experience in your Lordships’ House, some of which we have heard today. We came to the conclusion that we cautiously accepted the Government’s reasoning for the criminalisation of forced marriage, but we recommended, among other things, that the Crown Prosecution Service should develop a strategy on prosecutions over forced marriage and that, in developing such a strategy, there should be consultation with the relevant stakeholders. It was very much a cautious acceptance of the Government’s reasoning.

I appreciate that the noble and learned Baroness has put this down as a probing amendment rather than anything more and I accept it in that spirit. I counsel some caution, however, about having an offence which one commits if there is an aggravating feature in relation to another offence. It causes difficulties in sentencing in other cases in which this form of offence has been introduced. It seems to me, as I suggested in a brief intervention on the noble and learned Baroness, that it would be perfectly possible to have an offence of forced marriage and to have an offence if the context required it—a further offence, perhaps, in Section 20 or Section 18—of whatever other offence had been committed. However, I understand the spirit of the amendment and I look forward with interest to what the Minister has to say.

[Baroness Thornton]

Did the human rights committee consider the proposal that has been put forward by my noble and learned friend? If it did not, does it think it would be a good idea if it did now do so, if there is time?

[Lord Faulks]

I do not, of course, speak for the committee, as I am only one member. This particular amendment was not considered; I can certainly take it back to the committee and ask that we consider it.