Voyeurism (Offences) (No. 2) Bill (Second sitting)

Alex Chalk Excerpts

Committee Debate: 2nd sitting: House of Commons
Tuesday 10th July 2018 Public Bill Committees

[Jessica Morden (Newport East) (Lab)]

Q 49 Hello. You have tabled several amendments to the Bill. Can I start by asking you to explain their purpose, what they are about and why, in your view, they will make the Bill better?

Mrs Miller: Thank you very much for allowing me to give evidence as we consider the Bill, Sir Roger. The amendments I propose, which have support from Members of every single political party, including some Members here, seek to do two things: first, to change the purposes mentioned in the Bill, and secondly, to introduce a new item to the Bill covering distribution.

Several people feel that the listed purposes are too tightly drawn. I have worked on the amendment with Professor Clare McGlynn, who is a professor of law at Durham University. It is her clear concern that recognising offences only if they are for the purposes of either sexual gratification or the humiliation of the victim would mean that a number of cases could never be tried. That is important, because the Government have made it clear from the start that the Bill is intended to close a loophole in the law. It does not do that as presently drafted. It will need to be more broadly drafted and not simply focus on those two different purposes.

The amendments have been drafted after my having looked at comments from people such as David Ormerod, a law commissioner who has clearly set out that “motive is irrelevant to liability” in criminal law. “Smith and Hogan’s Criminal Law”, which I understand is the bible on criminal law issues, sets out that motives form an element of an offence only in exceptional circumstances when it comes to criminal law. The example given in that book is of racially aggravated offences in which racism is an element.

In many ways the Bill is anomalous, inasmuch as it sets out purposes, whereas three quarters of offences in the Sexual Offences Act 2003, which, after all, the Bill amends, do not require one. The Minister asserted during the Second Reading Committee that the amendments would

“reverse the burden of proof”.—[Official Report, Second Reading Committee, 2 July 2018; c. 18.]

David Ormerod, a law commissioner, does not agree, hence my belief that the amendment should stand.

The second amendment relates to the distribution of material. Shortly after Scotland passed a similar law to outlaw upskirting, they realised that they had no way of stopping the distribution of those images. They had to pass a subsequent piece of legislation—the Abusive Behaviour and Sexual Harm (Scotland) Act 2016—so I found it quite surprising that the Government would bring forward the Bill based on the Scottish Act but not include the subsequent legislation on distribution.

To finish this final point—sorry my answer has been so long—at the moment the revenge pornography law, section 33 of the Criminal Justice and Courts Act 2015, would apply to stop the distribution of upskirting images only in cases where they would cause distress. It would not stop the distribution of those images in any other circumstances. There is clearly a loophole in the law around distribution. I believe that this amendment would close that loophole.

[Alex Chalk (Cheltenham) (Con)]

Q May I take up the issue about motive? The offence in the Bill requires one or other of two purposes:

“obtaining sexual gratification (whether for A or C)”—

in other words, for the taker or for a third party—or

“humiliating, alarming or distressing B.”

What are credible additional or alternative motives for someone taking a photograph up someone’s skirt?

Mrs Miller: Professor Clare McGlynn has set this out in evidence to the Committee, having looked at this issue since 2015 when she first thought there was an upskirting loophole that needed to be filled. I commend that evidence to the Committee as giving a full answer. She feels strongly that there are clear cases where it would not be easy to prove sexual gratification or humiliation as a motivation of the perpetrator. She gave two particular examples for posting images: for financial gain or simply having a bit of fun. The individual may not be recognisable, so humiliation would not be caused. If those images were then posted to a WhatsApp group, that would not be caught by this law.

[Alex Chalk]

Q Okay. Let me deal with financial gain. The value in this photo comes either from a third party getting sexual gratification from it or from it being humiliating, alarming or distressing for the individual. Even if that were part of the intention of the taker, surely it would be possible for the prosecution to say, “Whatever their primary motive, the value in these images came from one of the two purposes set out in the Act.” Can you point to any cases where the Crown has not been able to get the defendant down—to use the vernacular in Scotland—because of these alleged loopholes?

Mrs Miller: I think, Mr Chalk, there is a fundamental misunderstanding of the driver for these types of sexual harassment. Indeed, if I may refer to evidence given to my Select Committee by another Government Minister only last week, the Minister for Women said that the driver of sexual harassment is power, not sexual gratification. The overwhelming likelihood is that these pictures will not be taken for sexual gratification.

I am advised—unlike you, Mr Chalk, I am not a qualified lawyer—that proving sexual gratification is extremely difficult, and indeed the Government do not believe that sexual gratification is the main driver of the taking of these sorts of photographs. In answer to your second question on evidence, unfortunately I do not have the resources to look through Scottish law—

[Alex Chalk]

Q But is it not quite important to be able to point to examples where someone we would expect to have been convicted of upskirting has not been because of deficiencies—or perceived deficiencies—in the law? Can you point to a single example of that?

Mrs Miller: What I would point to is the evidence I have just given around the law commissioner, David Ormerod, who has said that “motive is irrelevant to liability” in the criminal law, and the fact that three quarters of the laws in the Sexual Offences Act that we are amending have no such provision.

[Alex Chalk]

That is a separate issue.

Mrs Miller: What the Government have not done—if I may be so bold—is to say why this is a very different case. They do not seem to have any evidence to back that up.

[Alex Chalk]

Q With respect, that is a separate issue about how it sits in the canon of sexual offences law. My question is whether this proposal is fit for purpose. I am asking whether you can provide any evidence of culpable conduct that was not capable of being prosecuted to conviction because of a perceived deficiency in the law. Can you provide any example?

Mrs Miller: I cannot provide that example. What I can do is give you professional, expert opinion, including most recently that of Lord Pannick in the House of Lords, which says quite clearly that setting out the provisions, as currently drafted in the Bill, only to cover situations that are to do with sexual gratification and alarming and distressing victims, draws the piece of legislation too tightly. I have to say that I do not want to question the opinion of Lord Pannick.

[Wera Hobhouse (Bath) (LD)]

Q Can I come back to the first amendment and hear a little bit more of the response to the argument that we would reverse a core principle in British law that somebody is innocent until proven guilty? I understand that is one of the main arguments why the amendment should not be put forward because, basically, it would make it very difficult for an alleged perpetrator to prove his or her innocence.

Mrs Miller: I think that is, if I might say, Sir Roger, something that seems to be a point of disagreement with the Government and a number of people who have provided evidence to me—not only Professor Clare McGlynn, but Lord Pannick and the words of David Ormerod. They all suggest that removing the two provisions that narrow the purposes of the Bill would not at all reverse the burden of proof. In fact, in doing so, it would be brought more in line with three quarters of the sexual offences in the 2003 Act.

Rather than in some way perverting the law, which was my layman’s take on what the Minister said in the Second Reading Committee, the amendment would more likely bring this piece of law into line with other offences under the Sexual Offences Act. There is no requirement in criminal law to specify particular motives for criminal offences—only in exceptional circumstances. The Government have not said why this would be an exceptional circumstance.

--- Later in debate ---

[Alex Chalk]

Q I want to go over the point you very helpfully raised about making a decision on whether to be heavy-handed, go in with your size 12s and prosecute someone to conviction, potentially ruining a young person’s life, or to take a lighter touch. That involves individual discretion, often of a police officer, to decide, “Are we going to go down the caution route or are we in fact going to go down the full prosecution route, which could end up in front of judge and jury at the local Crown court?”

From your vantage point, what experience have you had in similar cases, such as revenge porn, of that discretion of individual police officers being exercised credibly and consistently around the country?

One of my concerns is that a police officer might go to a festival in Reading and decide that that 15-year-old is an idiot and deal with them by way of a caution, but a police officer in a different part of the country could say, “Absolutely not. You are going to be charged and potentially go inside.” Do you have any experience of whether discretion is operated properly and consistently in relation to young people?

Lisa Hallgarten: I do not have evidence of whether it is operated correctly and consistently. I do know that there is guidance on sending sexual images, which I keep referring back to because it is extremely helpful. There is something called Outcome 21 in the guidance:

“This means that even though a young person has broken the law and the police could provide evidence that they have done so, the police can record that they chose not to take further action as it was not in the public interest.”

Another part of that guidance says that

“schools and colleges can be confident that the police have discretion to respond appropriately in cases of youth produced sexual imagery”.

I do not know how well or how consistently the guidance is implemented and I cannot answer that.

[Alex Chalk]

Q But would you agree that that is a key part of how this sort of legislation operates on the ground—namely, how it is enforced and the discretion that is applied to its terms?

Lisa Hallgarten: I would agree and I would say that it is really important that people understand the point of the legislation. Whether that can be described through the wording of the legislation, I do not know.

[Helen Whately]

Q You have talked very helpfully about avoiding unnecessary criminalisation of young people. That is helpful because some witnesses have argued for a more heavy-handed approach, with a much more blanket criminalisation of people. It would be helpful if you said more about the consequences of criminalising a young person when, in some of the circumstances you have described, they might not know the full seriousness of what they are doing. What do you think the best alternatives would be?

Lisa Hallgarten: It is interesting that we are going from lots of schools not even excluding a child who has been proven to be involved in sexual bullying or harassment to moving to prosecution. It would be good to think about the different steps that are appropriate at different ages for a child and different kinds of offence.

There have been situations where young women who have been raped in school—a very serious sexual assault—have had to go to school when the same children are still in the school—the people who were guilty of the offences. It feels to me that there is a big gap between ignoring the offence and prosecuting the child. There must be some sensible steps that we could take.

None of this is to say that this law should or should not happen. I am not really commenting on whether the law should exist, but I think, long before a child is prosecuted, far more steps should be taken, and much earlier. It is very unlikely that somebody would go to a serious offence from nothing. It is very likely that a child who ends up taking photos, sharing sexual images or physically assaulting somebody will have done what we would consider to be more mild offences, which will not have been picked up or taken seriously.

I know that the Women and Equalities Committee report found that lots of cases were dismissed. Lots of complaints, mainly from girls, were very easily dismissed in their school and not taken seriously. You wonder whether those boys just did not get the message that it is completely unacceptable to behave like that.