Voyeurism (Offences) (No. 2) Bill

Alex Chalk Excerpts

Second reading committee: House of Commons
Monday 2nd July 2018 General Committees

[Alex Chalk (Cheltenham) (Con)]

It is a matter of great regret that the hon. Lady is taking such a partisan approach. In 2009 a Labour Government were in power in the United Kingdom, and they did absolutely nothing. Will she take this opportunity to come together with Members across the House and celebrate that swift movement has been made to right some wrongs?

[Yasmin Qureshi]

I will come on to our working together collectively. As the Minister is aware, we do not object or seek to amend any part of the Bill. However, for the last eight years we have had a Conservative Government, and more specifically the Minister mentioned this problem last year. In any event, as I said, it baffles me that this is not a criminal offence. Of course, we will support it becoming one, but we cannot pretend it has not been ignored for so many years. That would not do justice to the victims, witnesses and other people affected.

Women have increasingly been speaking up, with one of the first being Gina Martin, who founded the campaign. Less than a year ago, she was at a festival in London with her sister when she was horrified to notice that the man behind her had taken a photo up her skirt. Shocked and distressed, she sought help from the police, but the law was not sufficient to ensure that they could help her. That is why a change in the law is required. Indeed, Dame Vera Baird, QC, from the Association of Police and Crime Commissioners, said that the current legislation

“is far from clear as there is no specific offence”.

We must remember that many women right across the UK are being affected. It can happen to women on public transport, in a park, at a concert or even just on a walk along a busy street, without the victim even realising that a photo has been taken.

In an article in The Guardian, Emine Saner tells the story of Lucy Parkinson, then 21 years old, who was shopping in Ealing, west London, when she heard an altercation behind her between two men. She said:

“I was crossing the road, and got stuck with a pack of other people at a traffic island…I was wearing a long-sleeved blouse and a white knee-length skirt.”

One man ran off and the other told her he had

“chased him away because he had seen him ‘upskirting’ me…I hadn’t even noticed it happening…and that’s the most unsettling part—in a city, you just don’t notice physical proximity to strangers. It could have happened a dozen other times too, for all I know.”

She continued:

“I felt unsettled, targeted, and helpless; there was nothing that could be done about what had happened, and nothing I could do to prevent it from happening again.”

It is impossible to judge how many women may have been victims of upskirting, although a quick internet search will bring up hundreds of sites and thousands of images. There may be millions more pictures on phones and laptops, taken on the streets, on escalators in shopping centres, on trains, at bus stops and in supermarkets, nightclubs and other places, that may or may not have been shared.

The Minister is aware, as Members will be, that there are endless web forums where amateur upskirters can exchange tips on how to get the best pictures. One was posted by a man who had made a “cam-bag”—a holdall with a specially made pocket with a hole for a digital video camera lens. The post says:

“Never forget to shoot their faces before or after to know which girls the ass belongs to...After the first…asses, they look very similar and you lose most of the fun. After upskirting them, either step back and wait for them to turn or step by them and shoot directly sidewise.”

Another poster on the forum said that he operates

“mostly at theme parks and tourist hotspots, or really anywhere that draws a large crowd of spectators and cameras”.

He finds

“an attractive young lady, preferably a teen for my tastes, and then I evaluate the situation.”

He would sit down next to a young woman and surreptitiously film her while pretending to fumble for new camera batteries in his bag.

On another site, one man posted:

“I’ve been upskirting chicks, mostly at clubs, for almost two years. The club I go to is a great spot, real crowded, strobe lights going, loud music, so no one notices me sitting near the edge of the dance floor and if a woman in a skirt ends up by me I stick the cam under and snap.”

Those stories makes one aware of how shocking and vile this behaviour is, and I am pleased that—eventually—it is to be outlawed. Again, we must thank the campaigners and hon. Members who have been pushing for that.

In conclusion, the scope for people taking upskirt photographs has clearly increased with the development of mobile phone technology. A gap in the law has allowed this to happen, and I am proud that for some time we have backed the campaign to bring this to legislation. I have a couple of technical questions, however. First, the legislation for this offence as it stands effectively has two limbs. One is that the act is done for sexual gratification. The other is that it could lead to harassment or distress. We are told that if someone is convicted under the sexual gratification limb, that can lead to their being put on the sexual offences register.

I have some practical questions. Would the prosecutors have to charge these things as two separate offences, counts, indictments or charges, or is it up to the justices in the magistrates court and the jury in the Crown court to decide which limb to convict the defendant on? Can the prosecutors draft it as one count with two parts? If a perpetrator is convicted on the first limb, but evidence shows that what has happened falls under the second, will the prosecutor be able automatically to amend the indictment and put a new charge in, or will they have to seek permission from the justices to do that?

Those are legal and technical questions, but they are important, because when a case comes before a prosecutor, they need to know whether to charge with one offence, depending on the circumstances of the case, or to charge with both and let the jury, in the Crown court, or the justices, in the magistrates court, know. Perhaps we can have some clarity on that.

--- Later in debate ---

[Alex Chalk]

It is a great pleasure to serve under your chairmanship, Ms Buck.

I will say a small number of things. First, I express credit where credit is due—it has already been done, but it bears repetition—to the hon. Member for Bath, to Gina Martin for her campaign and to the Minister, who has acted with great speed and decisiveness. To move so quickly is, if not unprecedented, certainly rare, and it is greatly to be welcomed.

I regret that the tone taken by the official Opposition spokesperson was so partisan, because the idea that the Labour party has been banging on about this since 2010 is simply untrue. Convention precludes me from going into any detail, but the first time the shadow Justice Secretary mentioned it was on 5 September 2017 following the campaign by Gina Martin, who should have the credit for the campaign. The first time the hon. Member for Bolton South East mentioned it was on 18 June 2018. I am afraid it is simply untrue to suggest that this has been a long-standing Labour campaign. The truth is that the blue touchpaper was lit by the campaigner Gina Martin, that the hon. Member for Bath moved quickly thereafter and that the Government then took up the cudgels.

The Bill strikes exactly the right balance. It is important to ensure that this pernicious conduct is properly outlawed, but also that the penalties are proportionate. Making it an either-way offence is a proportionate and appropriate step. A maximum of two years’ imprisonment is also proportionate and appropriate, although we in this House must when we talk about a two-year maximum, or 24 months, that if someone pleads guilty the maximum sentence is effectively 16 months and the maximum amount of time they could spend in custody is eight months. We must recognise that, but none the less it seems to me that it is in keeping with sentences for other offences, not least harassment under the Protection from Harassment Act 1997 and parts of the Sexual Offences Act 2003.

On the more difficult issue of notification, which I anticipate the Government will have grappled with, the balance has again been correctly struck. An offender will qualify for the notification requirements only if the offence was committed for sexual gratification and the relevant condition was met. Where it is an adult offender, the relevant condition is that the victim is under 18, which makes perfect sense—even if it is a one-off case of an adult who, for sexual gratification, upskirts a 16-year-old, it seems to me that notification should follow—or that the offender has been

“sentenced to a term of imprisonment”

and meets various other qualifying elements. Again, that makes the point that it must be a serious incident before it triggers the notification requirements. That is a difficult balance to strike, but I am entirely confident that the Minister has struck the correct one.

[Mrs Miller]

I note that my hon. Friend is another eminently qualified barrister and I am not—I have never studied the law—but is he not a little bit more concerned about the impact on the victim, rather than always looking at the motivations of the perpetrator? Surely the impact on the victim will be the same regardless of whether this has taken place for sexual gratification or not.

[Alex Chalk]

My right hon. Friend is absolutely right; the victim must be at the heart of this. Lest we forget, that is the whole reason for having this Bill. However, my view is that the court can take into account the impact on the victim in deciding what sentence is imposed. The Bill will ensure the notification requirements are engaged only for offences where the impact on the victim has been so great as to warrant a significant sentence.

Where I do agree with my right hon. Friend is on the potential to criminalise an individual’s motivation. I can well imagine circumstances where an individual goes to a festival, takes a whole load of photographs and says, “Look, I think this is disgusting stuff, but there’s a market for it. I’m going to put it online and sell it online. Frankly, whether other people get gratification from it, I don’t know. I certainly don’t want to humiliate or distress these individuals; I’m in it for the money.”

Suppose evidence to that effect emerged, such as an email that that individual had sent to the people who were going to upload those photographs to the internet. It would be rather odd if, in court, he was able to invoke by way of a defence the fact that his motivation had nothing to do with sexual gratification, because the email showed that he was not interested in that stuff, and that he had no interest in humiliating, alarming or distressing victims. If he were able to show that he was purely in it for the money, that would be a rather curious argument.

[Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)]

The hon. Gentleman is making a strong argument, but would not the very fact of someone uploading such photographs to the internet or putting them in the public domain inevitably cause harm and distress, and would not anyone applying common sense understand that such an act causes harm and distress and therefore fulfils the requirements in the Bill? If it does not, I am genuinely interested to hear more, but I do not understand how it does not.

[Alex Chalk]

The hon. Gentleman raises an important point. Inevitably, it would turn on the evidence. Supposing such an act were prosecuted, the prosecutor would no doubt say, “We’ve got this email, which shows that this person’s intention was purely to be paid £100 for these images that he got at the festival, but he must have known in passing them on that their value was in the fact that they would lead to distress or gratification, even if that was not his primary purpose but a residual purpose.” Therefore, the prosecution should say, “Members of the jury, forget about that email. It’s irrelevant. Use your common sense.”

I suspect that, in the overwhelming majority of cases, the jury would exercise their common sense and justice would be done. My concern, however, is about whether that is really an argument we want to be having in front of a jury. If there were the potential to close that argument off, a number of judges and even jurors may welcome such clarity in the law.

I congratulate the Government and the individuals involved, including the hon. Member for Bath, on their timely, robust and proportionate approach.

--- Later in debate ---

[Lucy Frazer]

The hon. Lady makes an important point. In fact, her campaign and that of Gina Martin have done a significant amount to ensure that this offence, and now its potential illegality, has been brought to the attention of individuals and that they know about it. Often it is the fear of prosecution rather than prosecution itself that protects potential victims of crime.

Before I turn to the wider issues raised in the debate, I will touch on some points that have been made by various Members about the remit and ambit of the Bill. We have thought very hard about how the Bill should be put together, what the motivation should be, and when people should go on the sex offenders register. Some Members thought that motive should disappear, because it is the act and the victims we should focus on, not the perpetrator. It has been suggested to me that we should not need to prove motive, but reasonable justification. The concern with that is that a general principle of our law, particularly our criminal law, is that someone is innocent until proven guilty. To suggest that the prosecution should not have to prove motive, only reasonable justification, would reverse the burden of proof, putting it on the defendant, who is meant to be innocent until proved by the prosecution to be guilty.

In our system of law, the prosecution has to prove every element of the offence, and we say that should remain the case for this offence, too. The offence is criminal and serious, and the punishment we are proposing is serious. It is two years, with the requirement that in some circumstances people will go on the sex offenders register. We think it is appropriate in these circumstances that, as with other offences under criminal law, motivation is identified and proved.

Some Members suggested we should take a wider role in relation to the sex offenders register. We are concerned that we should strike the right balance between protecting victims and, where there are young offenders, protecting offenders. We need to strike a balance in terms of stigmatising them and putting them on the sex offenders register. They might need to be identified to the police as potential criminals for future sexual offences. We should not just expand the sex offenders register. Ultimately, if there were too many people on it, that would make it meaningless.

[Alex Chalk]

On the point about considering proportionality, is it not important to remember that if those on the sex offenders register fail to comply with its conditions, they can be guilty of an imprisonable offence? To go on the register is a serious matter.

[Lucy Frazer]

My hon. Friend makes an important point. Going on the sex offenders register is a serious matter both with what it requires and if it is breached.

I want to touch on a number of points that my right hon. Friend the Member for Basingstoke made. She has done so much individually and through her Committee to champion a large number of issues and protect and help the lives of individuals, particularly women. Together with others, she has raised a number of issues that I would like to deal with. I reiterate that the Government continue to be alive to how new technologies are facilitating the degrading treatment of women and children on the internet, but we also need to be alive to the fact that some of the questions posed are difficult and not straightforward.

A question was asked about whether revenge porn should be a sexual offence, which would have two consequences: anonymity for the victim, and the perpetrator’s going on the sex offenders register. When the offence was first introduced, there was not universal support for it being a sexual offence. In informal consultations, victims did not universally ask for it to be a sexual offence. They often said that they just wanted images taken down. The Ministry of Justice took the views of more than 100 members of the public, many of whom had been victims of or knew victims of revenge porn. Very few suggested that they want it to be a sexual offence.

There are also unintended consequences and risks that would need to be considered. If we made such things a sexual offence, it would require notification. That gives rise to the point we are making about people being put on the sex offenders register when their intent was not sexual gratification, given all the consequences that come from being on the sex offenders register.

If we do not make these things a sexual offence, but instead just give anonymity to victims, we would be creating an inconsistency in the law. We would be extending automatic reporting restrictions—that is, putting people on the sex offenders register and giving people anonymity —to offences that are not sexual. How does that play out for other crimes where the same argument could be made that anonymity would be helpful for victims coming forward? For example, in cases of domestic violence, blackmail, or reckless transmission of HIV, more people might come forward if there was anonymity.

So, if we just say, “We’re creating an offence. We won’t make it a sex offence, because of the issue with the sex offenders register, but we will give you automatic anonymity”, the issue arises of whether we are making a special case of this offence, and whether the case should be the same for other offences that are also not sexual offences? Also, there can be reporting restrictions in any criminal case at the moment, even if someone does not have automatic anonymity.

The question of deepfake was raised. This is a real—

[Lucy Frazer]

My right hon. Friend makes an important point. The offence being considered today is a sex offence; it is an amendment to the voyeurism Act and is therefore a sex offence. She highlighted the FGM provision on anonymity. However, the point I am making is that we can create exceptions to a rule, but we must acknowledge that they are exceptions, and once we create one exception, or two, the general rule starts to break down and we have to ask ourselves more, and difficult, and complicated questions.

My point is that this is not a straightforward discrete decision. The Bill is discrete; it addresses a gap in the law that needs to be filled. Many other Members are raising interesting points, but those points are complicated —they are complex—and they have implications for other offences and other laws.

[Alex Chalk]

I am sure that it was just a slip of the tongue, but does my hon. and learned Friend agree that this Bill is in fact amending the Sexual Offences Act 2003, rather than the voyeurism Act, hence the point she was making about this offence being a sexual offence?

[Lucy Frazer]

I am always grateful for my learned junior’s assistance.

I will now move on to deepfake. Many Members have mentioned deepfake, which is a distressing act that can cause a victim to feel humiliated and can have significant consequences. Cases have been prosecuted in relation to deepfake. There is a case of a City worker who superimposed his colleague’s face on to porn websites and then told the woman’s boss in order to discredit her. He was convicted of harassment. Although there is not a specific offence in relation to deepfake, it is possible, if there is continued misconduct, for someone to be convicted under the law as it stands on harassment.

Other Members have mentioned the issue of sharing photographs and there are already—