Voyeurism (Offences) (No. 2) Bill

Baroness Burt of Solihull Excerpts

2nd reading (Hansard): House of Lords
Tuesday 23rd October 2018 Lords Chamber

[Baroness Burt of Solihull (LD)]

My Lords, I am absolutely delighted to welcome the Second Reading of what has become colloquially known as the “upskirting Bill”. It was introduced in the Commons in June through a Private Member’s Bill by my friend and colleague Wera Hobhouse following an enormously successful campaign by Gina Martin, who obtained over 100,000 signatures in her bid to amend the current law. That Bill was objected to by Sir Christopher Chope —a practice he undertakes with monotonous regularity in the Commons. Many an excellent Bill has fallen because of his demand to see what he regards as proper due process. However, on this occasion he inadvertently did us all a favour. The outcry was so great that the Government agreed to bring in the Bill themselves—hence our all being here today.

Upskirting has been an offence in Scotland since 2009, so it is high time the offence was introduced in England and Wales. Of course, Northern Ireland goes its own way—or it would if Members of its Assembly could agree to work together, put the people first and get on with some legislative work.

The Equality and Human Rights Commission welcomes the Bill—I think the noble Baroness, Lady Gale, has been reading the same briefings as me—and comments that it is a further step towards meeting our commitments under the Istanbul convention. Like the noble Baroness, I would be grateful if the Minister could explain in his remarks what is holding up the ratification process.

But why is the Bill necessary? Professor Clare McGlynn of Durham University put it thus:

“Sexual offences are about power and control, punishment, sexual entitlement, anger, entertainment, as well as sexual gratification”.


A number of speakers at the Commons stage, as well as Professor McGlynn, recommended that the Government remove the motivation requirement from the Bill. They say—and I agree—that we need to concentrate instead on the harm caused to victims. And the harm is real: shame, humiliation, distress, fear and anxiety, paranoia, depression, trauma, panic attacks—the damage is endless. What does motivation matter when the outcome is one of the above?

The qualifying motivations in subsection (3) seem to me and others a little thin. The Government’s point—which I do see—is that the type of motivation is relevant to whether the perpetrator should be on the sex offender register. Anyone doing this for sexual gratification should be recorded on it. But the question remains about whether the motivations covered in the Bill leave room for sneaky defence barristers, seeking a legal loophole, to argue that their clients’ actions are not within the scope of the law.

The EHRC prefers to see motivation out of the Bill altogether, but argues that there is a question mark over two important areas which should at least be recorded as motivations on the face of the Bill. These are “financial gain” and “entertainment or amusement”. The Minister may well see amendments on this coming his way during the course of the Bill, but I am sure that the House would be grateful if he would comment in his final remarks today. “Lads having a laugh” might cut no ice with most judges—but why take the risk?

Financial gain is very real. One website hosting and exchanging images is reportedly worth £30 million. Let no one profit from this kind of humiliation and distress. Distribution of these images is an area called into question by Women’s Aid. As I understand it, the legislation criminalises the taking of an image but not the further distribution of it, which is a common occurrence. So if we fail to criminalise distribution, we fail to recognise the further distress and humiliation that victims suffer. Any possible amendments also need to include threats to distribute— a mechanism of coercive control. Women’s Aid points out the terrible damage this could cause to women of BME origin, where cultural norms may lead to their being disowned, ostracised and even killed. For the victim, this is about as far away from “having a laugh” as you can get.

I welcome the fact that upskirting will come under the Sexual Offences Act, which will give victims the right to anonymity. Studies have shown that without this right, in cases of rape, the vast majority of victims would not report. One area where this right is not given—because it does not come under the Sexual Offences Act—is for so-called revenge porn. A BBC investigation found that in about one-third of revenge porn cases where victims withdrew from prosecution, lack of anonymity was a key factor. So an amendment could be coming the Minister’s way that would give the right to anonymity to victims of all image-based sexual violence, particularly revenge porn, Photoshopped images and sextortion—which is sexual extortion. Why should not all of the above be treated as sexual offences? Perhaps the Minister could comment on this.

Women today suffer from a vast array of forms of sexual harassment. During research for this debate, I learned more than I ever wanted to know about sexual cybercrime. One in 10 women has experienced some form of cybercrime since the age of 15, including cyber harassment and stalking, use of GPS to track their movements, online rape and death threats, and doxing—which I learned is disclosing private or identifying information to the world. Only this morning, the Women and Equalities Select Committee recommended government action on street harassment and on watching porn in public places. It is sickening, and it all serves to promote the continuing unequal relationship between men and women.

We on these Benches greatly welcome the Bill. We thank the Government for taking prompt action after the attempted sabotage of the original Private Member’s Bill by Sir Christopher Chope. We also welcome the Law Commission review of whether misogyny should be included alongside other protected characteristics in law. I personally would welcome misandry also being included. After all, what is sauce for the goose is sauce for the gander.

Voyeurism (Offences) (No. 2) Bill

Baroness Burt of Solihull Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 26th November 2018 Lords Chamber

[Lord Marks of Henley-on-Thames]

I do not accept that, because in some cases these images would be published and a prosecution would follow without the victim ever being traced. The victim may not know the images are of her—there may be distinctive parts, there may not—but there may be cases where distress can come either with the prosecution or later. In the proposed new section as it stands, the prosecution has to prove that the intention of the perpetrator was to bring about that distress. That seems an unnecessary complication and hurdle to erect in front of the prosecution so that it has to prove that purpose to secure a conviction.

There may well be cases in which the perpetrator can say that sexual gratification, whether for himself or another person, was not his intention or purpose—the example has been given of “having a laugh”. In Amendment 2, we have identified financial gain, where these images are to be published to make money, as another intention. In Amendment 3, we have identified entertainment or amusement, which is another way of saying “having a laugh”, as another.

The noble and learned Lord, Lord Keen, has argued that financial gain will be achieved by the creation of these images or recordings only if they are to be sold for someone’s sexual gratification. I am not sure that this is entirely true. I believe that, in some circumstances, financial gain may be made by unscrupulous individuals peddling sick humour arising from such images, with no intention on the perpetrator’s part to secure sexual gratification for anyone, whether others may view them for that purpose or not. The purpose of the perpetrator must be proved, not the coincidental fact that others may get sexual gratification from viewing such images later.

The amendment moved by the noble Lord, Lord Pannick, is elegant and cleverly covers our point. However, the noble and learned Lord, Lord Keen, indicated to us that he might look on that amendment favourably even if I have not persuaded the Government—I am not sure that I have persuaded the Minister—of the merits of our amendments. I hope that I have done so; I do not see the difficulty in accepting our amendments. We regard them as improving the Bill by specifically outlawing taking or recording images for financial gain or for entertainment or amusement. Our amendments can be taken with those in the names of the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, which I hope the Government will accept in any event. The point is to avoid people who clearly should be convicted of offences under this new and welcome legislation unjustly running defences of absence of the relevant purpose and getting away with it.

[Baroness Burt of Solihull (LD)]

My Lords, I will add briefly to the comments of the noble Lord, Lord Pannick, the noble and learned Baroness, Lady Butler-Sloss and my noble friend Lord Marks. As the noble Lord, Lord Pannick, will already have gathered, we welcome Amendment 1, which would widen the offence to include,

“invading the privacy of B, whether or not by”,

humiliating, alarming or distressing them, for the reasons he has given.

Amendment 2 would widen the motivations to include financial gain by the person who took the photo or whoever has distributed it. Upskirting images are freely and easily available on the internet; this amendment spells out that anyone profiting from their distribution is committing a criminal offence.

Amendment 3 cuts off the defence that a group of “lads”—however old they may be—were bonding, having a laugh and did not mean any harm. It is not okay, whatever the motivation of the perpetrator or perpetrators, if the person has not consented. I believe that it is worth spelling that out. These points deserve to be made even if they do not make it into the Bill.

[Baroness Chakrabarti (Lab)]

My Lords, once more I rise in support of the Bill, and I know that it is rightly supported by Members on all sides of the House. After a lot of thought and some discussion, including with the noble Lord, Lord Pannick, I will stick to my Second Reading position that the Bill should pass through this House swiftly and completely unamended. I have two reasons for sticking to that position, the first pragmatic, but no worse for it, and the second a legal policy reason.

I will take the amendments in reverse order. I am very glad to hear that the noble Lord, Lord Marks, has abandoned his earlier preference for strict liability sex offences, which would be a very illiberal innovation in our criminal law. I take his point about accidental occurrences and so on, but I do not find either Amendment 2 or Amendment 3 to be particularly attractive or to add anything to the Bill.

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Moved by

[Baroness Burt of Solihull]

4: Clause 1, page 2, line 8, at end insert—
“(3A) It is an offence for a person (A) to disclose an image of another person (B) recorded during the commission of an offence under subsection (2) if the disclosure is made without B’s consent. (3B) It is a defence for a person (A) charged with an offence under subsection (3A) to prove—(a) that disclosure of the image was necessary for the purposes of preventing or detecting crime, or(b) that (A) did not disclose the image with the intent of disclosing an image of another person’s genitals, buttocks or underwear.”

[Baroness Burt of Solihull]

My Lords, Amendment 4 stands in the names of my noble friend Lord Marks and myself. The proposed new subsections (3A) and (3B) in Amendment 4 would widen the offence to all disclosures made without consent, with a get-out clause to cover the situation if a picture is inadvertently taken—for example, by a member of the paparazzi.

Researchers from Durham University have found that upskirt videos are easily and freely available on mainstream pornography websites. Over a period of just six months they found close to 2,500 videos on the landing page of the UK’s top three most accessed porn sites, depicting acts that can be classed as forms of image-based sexual abuse. Importantly, these titles were on the very front page of these mainstream sites, freely and easily accessible for a first-time user. They are not hidden.

We know from victim-survivors that their intimate images often end up on porn sites, viewed thousands of times and seriously amplifying the harms that they experience, making things worse. Once the images are uploaded to porn sites, getting them taken down from all sites is then extremely difficult.

The noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Pannick, mentioned Scotland. As we know, Scotland has recently criminalised the distribution of upskirting images. Its new law came into effect in July last year. Since then, 421 incidents have been recorded by police. Analysts have concluded that while some of these cases might have been recorded as a different crime or offence had they occurred prior to the new law coming into effect, it is likely that the clear majority of them would not have been classified as a sexual crime.

It is also the case that the enactment of that legislation extended the criminal law to criminalise certain conduct that previously might not have been illegal. This analysis demonstrates that an offence of distribution is a useful tool for the police, and I hope the Minister will also recognise the value of such an offence.

[Lord Swinfen (Con)]

My Lords, I have one quick question: does this apply to men wearing kilts as well as to women wearing skirts?

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Legislating for the distribution of upskirt images in the Bill risks over-criminalising or inappropriately criminalising all aspects of this behaviour. By legislating for upskirt images in isolation, there is a risk of cutting across broader work under way in this very important area and potentially jeopardising the opportunity to legislate more widely. On this basis, I urge the noble Baroness, Lady Burt, to withdraw her amendment.

[Baroness Burt of Solihull]

I am grateful for the Minister’s comments. I very much take her point that this is a complex issue and that other laws have been effected and could be used. It will have become apparent to the Committee that I am not a lawyer, but I have a strong sense that this is an issue that we should consider. I take the point about the Law Commission review, which is under way at the moment, and with my noble friend Lord Marks and others, we will reflect on the Minister’s comments. For the time being, I beg leave to withdraw the amendment.

Amendment 4 withdrawn.