Police, Crime, Sentencing and Courts Bill (Nineteeth sitting)

Alex Cunningham Excerpts

Committee stage
Thursday 24th June 2021 Public Bill Committees

[The Chair]

I remind Members, as always, to switch their phones to silent, and that Mr Speaker does not permit coffee or other drinks or food in Committee. Members should observe social distancing. Following a decision of the House of Commons Commission on Monday, we may now sit a little closer—one metre apart —but it is important to continue observing social distancing measures. Members should wear face coverings in Committee unless they are speaking or exempt. Please pass your notes to Hansard or email them to [e-mail].

Today we will consider further new clauses to the Bill and complete the remaining Committee proceedings by the deadline of 5 pm, as set out in the Order of the House of 16 March and the Order of the Committee on 18 May. New clauses that have been grouped with amendments to the Bill will not be debated again, but when we reach a new clause that has been debated, a member of the Committee may indicate that they wish to move the clause formally and divide the Committee. The selection list for today’s sitting is available in the room. I remind Members who wish to press a grouped new clause to a Division that they should indicate their intention when speaking to the clause.

New Clause 27

Voyeurism: breastfeeding

‘(1) Section 67A of the Sexual Offences Act 2003 (Voyeurism: additional offences) is amended as set out in subsection (2).

(2) After subsection (2), insert—

“(2A) A person (A) commits an offence if—

(a) A records an image of another person (B) while B is breastfeeding;

(b) A does so with the intention that A or another person (C) will look at the image for purpose mentioned in subsection (3), and

(c) A does so—

(i) without B’s consent, and

(ii) without reasonably believing that B consents.”’—(Alex Cunningham.)

Brought up, and read the First time.

[Alex Cunningham (Stockton North) (Lab)]

I beg to move, That the clause be read a Second time.

Good morning, Mr McCabe. It is a pleasure to serve under your chairmanship for perhaps the last time on this Committee. New clause 27 would ban taking photos or film footage of someone who is breastfeeding, without their consent. I, for one, was extremely surprised when I found out that our criminal law does not make sufficient provision for that. I am tremendously grateful to my hon. Friend the Member for Manchester, Withington (Jeff Smith), who brought this to my attention following an awful incident in his constituency, for his invaluable work campaigning on the issue since then. I am also grateful to my hon. Friend the Member for Walthamstow (Stella Creasy), who has taken up the matter with characteristic enthusiasm and tenacity. The House is extremely fortunate to have MPs of such calibre campaigning on such vital issues.

I also put on the record our sincere thanks to Julia Cooper, the Manchester, Withington constituent whose case I just referred to, for beginning the campaign to let women breastfeed in peace. Julia has led an impressive campaign, and I hope the Committee will answer with unequivocal support. As of this morning, her campaign petition has more than 26,500 signatures. To illustrate the issue, I will share some of Julia’s testimony about the distressing incident that she was subjected to. She said:

“I visited a park…with my baby for a walk with another mum. At the end of the walk we sat on a bench outside a café and fed our babies.

As I was breastfeeding, I noticed a man staring. He then attached a long-range zoom lens to his camera and began taking photos of me. I quickly turned with my baby to face away from him.

After the feed, I asked the man if he had taken my photograph, which he confirmed…I asked him to delete the photos and he refused, saying it was his right to take photos of people in a public space.

I am absolutely disgusted that this man has gone home with images of me and my baby on his camera, and it’s completely legal. As I said, I feel violated and discouraged from feeding my baby outside the house again.

I reported the incident to Greater Manchester Police, but the man I spoke to at the control room informed me, after having to come off the phone and check with colleagues, that indeed there is no law protecting breastfeeding women from unwanted photography in public.

I understand that women who breastfeed are protected by the Equality Act 2010 in public places like parks, as well as private businesses such as shops and restaurants. But only against discrimination.”

It is clear to me that there is a massive void in the rights and protections of breastfeeding women in public spaces. I find Julia’s case disturbing and upsetting, and I am sure that the Ministers share my feelings. Pregnant Then Screwed also took evidence about this issue from their supporters, and I will share one more case study that shows that the law is simply not strong enough to provide breastfeeding women with the protection they need. The woman I quote says that

“this happened to me with my second when she was a month or so old. Took her for a walk in the carrier…but she wouldn’t calm down. I stopped at a park bench to see if a bit of breastfeeding would work.

I never felt fearful of doing this with my first. A guy walked up to the bench, less than a metre away (during the pandemic) and just started taking photographs of me.

I told him to stop, to which he said he was a ‘photographer from Italy’. I then said I didn’t care if he was a photographer, he can’t take photos without asking permission and asked him to delete them. He then walked off.

I finished feeding my baby and then started to walk home…This is what I reported to the police and unfortunately it isn’t a crime. They were sympathetic and just sorry they couldn’t do much else.”

Both women had gone to the police, who were sympathetic and wanted to help but could not do so because of the current limits in the law. The new clause builds on the Voyeurism (Offences) Act 2019, which this House passed three years ago in response to concerns about upskirting. The Act created the criminal offence of upskirting, and offenders now face up to two years in jail and being placed on the sex offenders register for taking a picture of a person’s clothing without their knowing, with the intention of viewing their genitals or buttocks.

The law was supported by Parliament on the basis that it banned a degrading practice, with the intention of deterring perpetrators, better protecting victims and bringing more offenders to justice. As the law specifies, the location of the body where the Act applies is below the waist, which means that taking a photograph or video footage of a woman breastfeeding without her consent is not currently illegal. By amending the list of prohibited acts under the Sexual Offences Act 2003 to include breastfeeding, we can send the same message that taking photographs or videos of this nature without a person’s consent is wrong.

There are many issues at play here, including the protection of women from harassment in public spaces, but there is another reason why this is so important. Breastfeeding has short and long-term health benefits for both mother and child. It is estimated that if all UK infants were exclusively breastfed, the number hospitalised with diarrhoea would be halved, and the number hospitalised with a respiratory infection would drop by a quarter. Mothers who do not breastfeed have an increased risk of breast and ovarian cancers. It is because of those benefits to mothers and babies that the current UK policy is to promote exclusive breastfeeding for the first six months of an infant’s life, yet the UK has one of the lowest breastfeeding rates in Europe.

An analysis of global breastfeeding prevalence found that in the UK only 34% of babies receive some breast milk at six months compared with 49% in the US and 71% in Norway. In 2017, Public Health Research carried out research into why the UK’s breastfeeding rates are so low. It found that breastfeeding in public is something that mums are concerned about. The mothers polled are most likely to say that they would feel embarrassed breastfeeding in the presence of people they do not know. Indeed, 63% responded as such; 59% feel the same about their partner’s family; and 49% felt that way about siblings and wider family members.

A poll carried out by “Woman’s Hour” in 2019 found that three in 10 women who formula-fed their baby said that they would like to have breastfed, but felt embarrassed to do so in public. New mothers have more than enough on their plate as it is. They should not have to feel anxious about feeding their child in a public space. The Royal College of Paediatrics and Child Health recommended back in 2017 that the Department of Health and Social Care introduce legislation to support and protect breastfeeding infants and their mothers in public places.

The public are in favour of the measure, too. A YouGov survey of more than 5,000 UK adults conducted last month found that 75% of respondents agreed that taking photos of women breastfeeding without their consent should be made illegal. The amendment has wide support across all groups who support new and breastfeeding mothers, including the National Childbirth Trust, Pregnant Then Screwed, the Breastfeeding Support Network, and Mumsnet. I hope that today the Government can show their support as well so that we can protect breastfeeding women from such disturbing and intrusive acts, and together we can finally put an end to it.

[The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)]

It is a pleasure to serve under your chairmanship, Mr McCabe. I welcome the opportunity to debate this unacceptable, creepy and disgusting behaviour in Committee. I pay tribute to Ms Cooper and to the hon. Member for Manchester, Withington, who asked me a question on this very subject in the last Government Equalities Office oral questions. I also pay tribute to the many women who have shared their stories in recent months, including those who have responded to our survey to shape the violence against women and girls strategy and to tell us about their experiences.

All the facts that the hon. Gentleman has cited about the health reasons for breastfeeding are very apparent and obvious. The reasons why mums and babies benefit from breastfeeding are well established. In what can often feel like a very busy, hectic and sometimes even—dare I say it?—harried time with a newborn, breastfeeding provides a moment of tenderness, of love, and of innocence. To have a stranger defile that moment by trying to take photographs or video it—that is not something that would occur to most decent, right-thinking people. I very much understand why this new clause has been tabled, and I want to support the mothers and the women who are facing this.

There might well be offences that could cover this behaviour, but I fully accept that from the descriptions the hon. Gentleman has given, those offences are not clear to either to the public or the police. The Government do not shy away from tackling the use of the internet and imagery as forms of criminal behaviour. We already introduced the offence of revenge pornography in 2015, and during proceedings on the Domestic Abuse Act 2021, we listened to victims of threats to use revenge porn and we acted in that legislation to extend the offence to include threats to disclose private sexual images with an intent to cause distress. Of course, the upcoming Online Safety Bill will set the framework for companies and the duty of care on tech companies in relation to members of the public.

However, we absolutely agree that it is right to ask whether the law has kept up to date with the emergence of the internet. That is why we have asked the Law Commission to review the law around the taking, making and sharing of intimate images without consent, to see where there are gaps, and to get the Commission’s advice on how people can be protected from such behaviour. That review looks at the question of voyeurism offences and non-consensual photography in public places, including the issue of images taken of breastfeeding. On 27 February this year, the Commission published a consultation paper on its review, which ended in May, and I understand that it is due to publish its final set of recommendations in the spring of next year.

We await the results of the Law Commission’s report. We want to wait for the results of that report, because it is foreseeable that the Commission’s work will include a body of recommendations knitting together the various types of offending behaviour that it has identified, and suggesting how the law should be redrafted or improved to tackle such offences. As such, I am in the position of asking the Committee—and, I suspect, later on, the House —to bear with us while we await the results of that report.

I understand the anger and frustration, and the fear that some women feel about breastfeeding in public in these circumstances. Given the Committee’s approval of the Law Commission’s work, however, it would be inconsistent, to put it mildly, of me not to say that it is best for us to wait for that work, so we can get a programme of recommendations from it about the overall use of such intimate images on the internet, and how the criminal law should address the issue.

For those reasons, we do not feel able to support the new clause at this stage, but I want to give the Committee a sense of the urgency we feel about the matter. While we are waiting for the Law Commission to report, we are looking at this as part of the VAWG strategy, as I said on the Floor of the House when the hon. Member for Manchester, Withington asked me about this, and we are determined to tackle it. We will be including this type of voyeurism in our considerations of the strategy. As we have discussed in previous debates, although legislation is important, there are other factors at play that we need to tackle, such as raising women’s awareness of their rights and raising awareness of how unacceptable this behaviour is. We want to work on our VAWG strategy and then wait for the Law Commission’s report to see what fundamental changes it recommends. I do not want to prejudge it, but if it recommends fundamental changes, we can consider them.

[Alex Cunningham]

I appreciate the conciliatory tone of the Minister’s response. I understand what she is saying, but when we debate new clauses and amendments, the Government constantly refer to yet another commission review and say that we must recognise that there are gaps in the law, and we find that we have to wait, wait and wait again. She says that we still await the final set of recommendations, so it could be well into next year before we get any sort of finality. It could be even after that before any action is taken to deal with this offence. Despite the Minister’s conciliatory tone, I feel that in order to protect women now, it would be good to press the matter to a vote.

--- Later in debate ---

[The Chair]

I have had no indication that any member of the Committee wishes to move new clause 30. If that is correct, we now come to new clause 31.

New Clause 31

Maximum sentence for publishing the identity of a sexual offences complainant

‘(1) Section 5 of the Sexual Offences (Amendment) Act 1992 is amended as follows.

(2) In subsection (1), leave out “and liable on summary conviction to a fine not exceeding level 5 on the standard scale”.

(3) After subsection (1), insert the following subsection—

“(1A) A person guilty of an offence under this section is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine not exceeding level 5 on the standard scale, or both, or

(b) on summary conviction, to imprisonment for a term not exceeding twelve months, or a fine not exceeding level 5 on the standard scale, or both.”’—(Alex Cunningham.)

Brought up, and read the First time.

[Alex Cunningham]

I beg to move, That the clause be read a Second time.

As the law currently stands, complainants of sexual offences are granted lifelong anonymity by way of the Sexual Offences (Amendment) Act 1992. Section 1 of the Act prohibits the publication of any information in any place that could lead members of the public to identify a complainant of a sexual offence. Section 5 makes a breach of the prohibition a criminal offence, the maximum sentence for which is a fine not exceeding level 5 on the standard scale. In some cases, identifying a complainant could result in an offender being prosecuted for contempt of court, but in many situations, the facts of the case will not allow that course of action to be taken.

What that means in practice, as the law currently stands, is that someone who reveals online the identity of a complainant will more often than not receive only a simple fine. I hope that the Minister will agree with me that that seems to be a wholly inadequate sentencing power for a crime that can do so much irreparable psychological damage to victims of sexual offences.

[Sarah Champion (Rotherham) (Lab)]

I am grateful to my hon. Friend for tabling the new clause, because I have dealt with survivors to whom this has happened and I think that the law needs to catch up with where we are, in that social media and the digital world are accessed much more now than they ever were before. The new clause makes complete sense in trying to bring the two back in line.

[Alex Cunningham]

My hon. Friend is, of course, correct: technology is moving so quickly, and so many different things happen in so many different ways. People can even get pictures on their watches these days and talk to their family back home. The fact that that sort of technology exists can be exploited for all the wrong reasons as well. It is important that we act in this space.

During Justice questions last month, my right hon. Friend the Member for Tottenham (Mr Lammy) raised the case of Phillip Leece to illustrate just how horrific a crime this can be. For members of the Committee who may not have heard the question asked by the shadow Secretary of State for Justice in the Chamber, I will quote what he said:

“In 2019…Leece viciously raped a woman on her way home from a night out; she was 26 and soon to be married. Adding insult to injury, he published the name of his victim online”

and made disparaging remarks about her appearance, claiming that she was

“too fat and disgusting to rape.”—[Official Report, 18 May 2021; Vol. 695, c. 522.]

For naming and humiliating his victim online, he received a pathetic and insulting fine of only £120. That in no way reflects the enormous trauma that his action caused the young girl he raped.

During Leece’s trial, his victim read out her impact statement to the court and spoke of the devastating impact that the attack and her subsequent naming had on her. She was once a happy young woman looking forward to getting married, but those events caused her to suffer severe psychological harm, which led to suicide attempts and incidents of self-harm. In her own words, she explained how her naming online changed the way she lived:

“The post made me feel incredibly insecure and sad for the days and weeks afterwards.

It increased my anxiety about leaving the house and it got to the point that I wouldn’t even go into the back garden whilst letting the dog out. I imagined that he would know where I lived and would be able to find me.

The post also led to me eating more and gaining even more weight…with the thought that the bigger I am, the less likely this will happen to me again.”

I am sure that all members of the Committee, regardless of political affiliation, will share my view that a fine in no way reflects the severity of Leece’s actions. I appreciate the Lord Chancellor’s sharing this view. In response to the shadow Justice Secretary’s question about Leece, the Lord Chancellor indicated that he was going to act in this area. Specifically, he said that the Government were

“already making preparations to see what can be done to improve and strengthen the law in this area, because, make no mistake, the naming of victims of sexual abuse—and other types of offending as well where anonymity is an essential part of the process—is not just wrong, it is criminal and we will do whatever it takes to help stamp it out.”—[Official Report, 18 May 2021; Vol. 695, c. 523.]

That view is shared wholeheartedly by the Opposition, and that is why we tabled new clause 31. It is another of those small but significant steps that we are asking the Government to take now, rather than waiting. It is clear to us that the current provisions of the Sexual Offences (Amendment) Act 1992 are simply no longer fit for purpose in the modern world. It is perhaps telling that the last time Parliament reviewed that Act was more than two decades ago, in 1999. I am sure that all of us would accept that since 1999 the world has changed a great deal—that was illustrated by my hon. Friend the Member for Rotherham. Online publishing and social media mean that things written on the internet attract an audience far greater than they would have in 1999. Furthermore, things published on the internet have much greater longevity and potential exposure. For those reasons, we need an urgent review of how the Act is functioning.

New clause 31 is a simple amendment: it would give judges the power to sentence offenders who name complainants of sexual offences to a custodial sentence of up to two years. That would bring this sentence in line with the sentence for contempt of court. Given that the Lord Chancellor has previously expressed sympathy for reforming this area, we look forward to the Minister’s support for the new clause.

[The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)]

It is, as always, a pleasure to serve under your chairmanship, Mr McCabe.

I thank the shadow Minister for raising this extremely important issue. The case he mentioned of Phillip Leece and his victim was truly terrible, and the impact on the victim was clearly appalling. As the shadow Minister said, the Lord Chancellor, in answering an oral question a short while ago, expressed the Government’s support for the principles enshrined in the new clause. We think that more needs to be done—we agree with the shadow Minister on that.

However, we would like to make sure that we do this in a thoughtful way, covering all the potentially related offences. The new clause, as drafted, covers the particular offences under the auspices of the 1992 Act. We take the view that some other prohibitions on naming victims and other restrictions would benefit from similarly enhanced penalties. Specifically, the new clause would not cover anonymity for victims of female genital mutilation, nor victims of forced marriage, who we think are equally deserving of protection and support, as I am sure Opposition Members would agree. In addition, other automatic protections apply to participants in youth court proceedings—defendants as well as victims—and discretionary protections can be imposed or handed down by the court to protect the identity of witnesses.

Besides the cases covered by the new clause, there are these other examples—female genital mutilation, forced marriage, youth proceedings and witness protection—that require action. This is an area, as the Lord Chancellor signalled, where the Government want to act in the near future by coming up with proposals that cover all these things. I know there is frustration: we have a Bill before Parliament, so why not do something now? However, other Bills are coming forward in the remainder of this Session that could be used as vehicles to legislate on this. It may be that the Lord Chancellor will say more about that before Report, because it is being worked on actively at the moment.

[Alex Cunningham]

Is the Minister giving a commitment that this particular offence will be covered by some form of legislation from the Government in this Session?

[Chris Philp]

I am coming close to saying that. I am saying that this is something that the Government are currently looking at. The Government accept the need to act on this, as the Lord Chancellor said, and on those other offences as well. I do not want to say too much before we are in a position to do so properly, but there are intentions to put in place a process to properly review these offences, on an expedited basis, with the intention of legislation then following. That is where the Government are coming from on this. I hope that it will be possible to say more on Report.

--- Later in debate ---

[Chris Philp]

I thank my right hon. Friend for reminding the Committee and me exactly where I sit in the hierarchy of Government. As a former senior Minister himself, he will know that my authority is limited in these circumstances, and indeed in all circumstances. I hope I have given a pretty clear indication, so far as I am able to, of where the Government will come out on this. We essentially accept the point, but change needs to be done properly, and we need to catch the other offences as well. I hope that gives the Committee a clear sense of where we are on this.

[Alex Cunningham]

I do not know what my pay grade is. I do not think I get paid, do I? The Minister talked about the principle of all this, but we get to a point where we have to leave principles behind and take some action. I assure him that I am also approaching the matter in a thoughtful way, with the support of my hon. Friends and of victims. We would not have tabled the new clause if we did not feel so very strongly about it.

--- Later in debate ---

[Chris Philp]

I appreciate the shadow Minister’s point, but the truth is we will not have had the chance to deal properly with all the other offences by Report, which is in just a week and a half, on 5 July. I wish I could, as he puts it, strike a deal, but as my right hon. Friend the Member for Scarborough and Whitby rather cruelly pointed out, I do not have the authority to commit the Government here. I hope I have given a very clear indication of our intention. We will not get all these details worked out in the next week and a half, but we will get this sorted out together.

[Alex Cunningham]

I am sorry to make the Minister uncomfortable about his pay grade, but we need to move forward with this and there is an opportunity to do so. The Minister says that it is only a week and a half until Report, but this new clause has been on the amendment paper for many weeks, and we have been planning for this Committee for many months. I think there has been sufficient time for the Government to do the right thing here, and I intend to push the matter to a vote.

Question put, That the clause be read a Second time.