Voyeurism (Offences) (No. 2) Bill

Baroness Butler-Sloss Excerpts

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

[Lord Pannick (CB)]

My Lords, Amendment 1 is in my name and that of the noble and learned Baroness, Lady Butler-Sloss. I apologise for not having been present at Second Reading. I was in Udaipur, India, for the wedding of my son Joel to Dhara Shah, and very enjoyable it was. However, as the Minister knows, I have taken an interest in this Bill since before it arrived in this House.

I strongly support the Bill. It will provide much-needed criminal sanctions for offences that cause substantial distress to victims, but my concern is that, as drafted, it might fail some victims. The problem is that each of the offences created by Clause 1—that is, operating equipment or recording an image beneath the clothing of another person—is dependent on proof by the prosecution that the defendant has acted for a purpose mentioned in new Section 67A(3). There are two unlawful purposes: obtaining sexual gratification, and humiliating, alarming or distressing the victim.

My concern is that it is absolutely inevitable that some men—it will almost always be men—who are accused of this offence will say that they did the act of voyeurism not for the purpose of sexual gratification or for humiliating, alarming or distressing the victim, but for the purpose of “having a laugh”. Of course, there is nothing remotely funny about these offences for the victim. I recognise that the prosecution will invite the magistrate or the jury to reject any such defence, but there is a real risk that the defence may succeed in at least some cases, perhaps because the jury will be confused by the need for the prosecution to prove one of the specified purposes.

I share the concern expressed by the noble Baroness, Lady Burt of Solihull, at Second Reading. At col. 789 of Hansard, she talked about defence barristers seeking for their clients “a legal loophole”. There is a potential loophole here; indeed, one so large that it would be more appropriate to describe it as a manhole. My amendment is designed to deal with this by providing that the defendant commits a criminal offence if the prosecution can prove that the defendant acted for the purpose of obtaining sexual gratification or for the purpose of invading the privacy of the victim, whether or not by humiliating, alarming or distressing them.

The amendment would not alter the structure of the offence. It would retain the need for a mental element—that is, proof of the defendant’s purpose. It would retain the imposition of notification requirements only on those who commit the offence for reasons of sexual gratification, which the Government are rightly concerned about. However, it would prevent defendants adding to the distress of their victims by running a wholly unmeritorious defence which may, in some cases, result in them escaping justice. I beg to move.

[Baroness Butler-Sloss (CB)]

My Lords, I have put my name to this amendment and I also support the Bill. I say to the Minister that the amendment is intended to be helpful.

I have been reflecting on the possibility that this might happen to me. From time to time, I wear very wide skirts, and more than once, in going up and down the stairs to the Tube, the skirt has come right up. I can just imagine a young man thinking it irresistible to stick his iPhone under my skirt as it goes right up for a lark. He might then say that it was not intended and that he did not think he would humiliate me. Quite simply, I would not be humiliated, alarmed or distressed. I would be extremely angry. And if I got the chance, I would put my leg exactly where you think I might. Bear this example in mind. In my view, it is not covered by the current wording of the clause because the action lacks intent and, much more importantly, was done to an elderly woman who then did not suffer any of the suggested reactions. As my noble friend Lord Pannick said, there is a gap—a manhole—and victims such as myself would not be covered.

I am sure the Minister had no hand in drafting this, but it is a well-meaning example of male paternalism. Nice, decent elderly men think that this is how all women would feel, but I am one who does not. For that reason, I strongly support this amendment.