Criminal Justice and Courts Bill

Baroness Thornton Excerpts

Monday 21st July 2014 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, as a member of Barnardo’s, I am delighted on this occasion to be able to agree with my noble and learned friend.

[Baroness Thornton (Lab)]

My Lords, we on these Benches welcome the amendment. I welcome it personally because I took part in the debates in 2003 on the Sexual Offences Act and argued this case on behalf of Barnardo’s, Action for Children, the NSPCC and ECPAT. All the voluntary organisations concerned with child safety had already realised that the law would increasingly not cover the issue of the threat to children through new media. I thank Barnardo’s for its excellent briefing on this, my honourable friend Sarah Champion for leading such an excellent review of the law and the Government for bringing forward the amendment.

[Lord Faulks]

I am grateful for those brief but welcome interventions by a number of noble Lords, not least of course the noble Baroness, Lady Thornton, whose own interests in this matter she correctly recorded. I am grateful for that short debate. That concludes the debate on this issue.

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Moved by

[Baroness Thornton]

36A: Clause 28, page 28, leave out lines 1 and 2

[Baroness Thornton]

My Lords, I am pleased to introduce a group of amendments that seek to tighten up Clause 28 and make it more effective. I welcome the clause, as I did at Second Reading. We on these Benches definitely welcome the Government’s efforts in this regard but think that there are some issues that need to be taken account of.

I place on record my thanks to Professors Rackley and McGlynn of Durham University for making their research and commentary available to us all, and to End Violence Against Women for its briefing and campaign. I also thank the British Board of Film Classification for coming to the House last week and giving a presentation—which, it has to be said, at times was really rather horrible—to explain how and why it sometimes does not give a classification to rape and extreme pornography. Several noble Lords attended the presentation, and I think that we all now have a greater understanding of where Clause 28 might not quite do the job that the Government intend. This particularly concerns the issue of context, definitions of penetration and realistic rape. I thank the Minister for his time in starting the discussion about these matters, and have suggested that he and the Bill team might also get the BBFC to come and discuss this clause with them; it is not a pleasant experience but it is very enlightening indeed.

I turn to the amendments. Amendment 36A would remove the requirement that the image be grossly offensive, disgusting or otherwise of an obscene character. The current law provides that for an image to be “extreme”, it must also be,

“grossly offensive, disgusting or otherwise of an obscene character”.

The current amendment would preserve this provision. We urge reconsideration of the use of language regarding obscenity. The use of the term “obscene” has long been criticised on the basis that it is typically deployed to capture material that is not only harmful but causes offence and disgust, and is typically focused on the impact on the consumer of material, rather than the wider consideration of harm, which is what this clause is actually about. We suggest that the Government should explore whether their description is compatible with justifying the original Clause 28 on the basis of cultural harm, not obscenity. We also contend that the criminal law is not used to prohibit material on the basis that it is considered disgusting. We recommend, therefore, the removal of the requirement that an image be,

“grossly offensive, disgusting or otherwise of an obscene character”.

Amendment 36B deletes lines 6 to 42, and the following amendments in the group would replace them. Amendment 36B would replace the existing language of the offence, and state that an image would be covered by this clause if it portrayed,

“sexual activity which involves real or apparent lack of consent or any form of physical restraint which prevents participants from indicating a withdrawal of consent”.

Amendment 36C seeks to clarify the definition of a realistic image, and would replace the requirement that the image portrays rape and assault,

“in an explicit and realistic way”,

with a requirement that the image be of,

“real or simulated depictions of”,

rape and assault by penetration.

The requirement that an image is “realistic” does not require the act depicted to be real, although we know that the clause seeks to cover real rape that has been filmed and made available to people. This is why the law refers to images which are “realistic”, meaning those that resemble or simulate real life. The use of the term “realistic” also mirrors international provisions on pornography, which similarly include real and simulated images. Article 9 of the Council of Europe Convention on Cybercrime 2001, on,

“Offences related to child pornography”,

extends to “realistic images”. The notes in our briefing tell us about the inclusion of real and simulated images.

The current laws on extreme pornography, and the proposed new provision, thus cover both real and simulated images. There is little doubt that Section 63(7)(c) of the Criminal Justice and Immigration Act extends to include “realistic” images of necrophilia where the “dead” person is not in fact dead. Similarly, in the proposed new law, a “realistic” explicit image of rape and/or assault by penetration—that is, an image of a simulated rape—should be covered by our amendment. However, in view of the fact that there has been some debate over the meaning of “realistic”, we suggest that this amendment is included in the Bill for the avoidance of doubt. Obviously, in all these amendments, if the Minister has something better to suggest, that would be even more wonderful. An amendment to the effect I have described was moved and discussed in the House of Commons Public Bill Committee. However, it was withdrawn in light of an explanation that the Bill’s Explanatory Notes would clarify that the offence would,

“cover both staged and real depictions of rape or other penetration”.—[Official Report, Commons, Criminal Justice and Courts Bill Committee, 18/3/14; col. 215.]

This assurance is not sufficient and, for the purposes of clarity, we would much rather see this made clear in the Bill.

Amendment 36D would provide that an image would be caught by Clause 28 if it portrayed any sexual activity involving real or apparent lack of consent. This is also covered by Amendment 36B. This is an important clarification because, as the BBFC showed noble Lords last week, it is possible to have an image that does not involve anyone else except, for example, a woman and no penetration but, because of the depiction and what is being done by binding, gagging, other positioning or other horrible things, this is definitely sexual activity and there is a lack of consent, whether real or apparent. In the terms that the Government have used to justify this clause, the cultural harm of depiction of rape and non-consensual sexual activity would appear to be covered by our amendment. I ask the Minister seriously to consider it.

Amendment 36E would provide that possession of an image of sexual activity would be caught by Clause 28 if it fulfils certain criteria. It refers to sexual activity where a participant,

“is portrayed in such a way as to make them appear under 18”;

where a participant is,

“with someone who is depicted as a member of their immediate family; and … sexual activity incorporating sexual threats, humiliation or abuse”,

which are not part of a “consenting role-playing game”.

Amendment 36F would ensure that the context of an image—the descriptions and sounds accompanying it—is considered when determining whether it is extreme. The BBFC gave us an insight into the need to take context into account, which might include grooming, stalking or other kinds of threatening behaviour that leave no doubt as to what is happening or what is about to happen. Music, sounds, text and banner headlines would also be captured by this amendment.

I ask the Minister to see these amendments in the light in which they are proposed, which is to help to make the clause work better. I beg to move.

[The Deputy Chairman of Committees (Lord Colwyn) (Con)]

I remind the Committee that if Amendment 36B is agreed to, I cannot call Amendments 36C to 36F; if Amendment 36C is agreed to, I cannot call Amendment 36D; and if Amendment 36D is agreed to, I cannot call Amendment 36E, all by reason of pre-emption.

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[Lord Faulks]

My Lords, I am grateful for the concern shown by the noble Baroness, Lady Thornton, and other noble Lords over these important provisions, which criminalise the possession of extreme pornographic images depicting rape. I appreciate that the intention behind the amendments is to ensure that we capture the appropriate material.

I also thank the noble Baroness, Lady Thornton, for meeting me, just as she thanked me for meeting her, to discuss these amendments. I was not invited to attend the BBFC meeting. I gather that it was a pretty horrific event, but clearly it has influenced all those who attended and I am mindful of that when considering the amendments.

I assure the Committee that I am aware of the sensitivities involved when discussing the sort of images that we are targeting. These images are at the extreme end of the scale and are most disturbing. Alongside the images targeted, however, there are of course depictions that, while deeply distasteful, might not warrant the full intervention of the criminal law. It is a difficult area but we must ensure that our distaste at some of this material is balanced, rightly, against the legitimate personal sexual freedoms of consenting adults.

Before I address the amendments, I should like to provide some background to the law as it currently stands and our proposals for reform. First, I should make it absolutely clear that the extreme pornography offence is an offence of simple possession, not one of publication, dissemination or broadcast. That is already covered by the Obscene Publications Act 1959. Section 63 of the Criminal Justice and Immigration Act 2008 makes it an offence to possess some kinds of obscene images. Such images must be pornographic and must explicitly and realistically portray necrophilia, bestiality or violence that is life-threatening or likely to result in serious injury to the anus, breasts or genitals. Clause 28 amends that category of material to include depictions of non-consensual penetration.

The offence was created following a full public consultation. There was considerable concern among respondents, and during the passage of the legislation through the other place, that the offence could have an unwarranted impact on the private sexual behaviour and personal freedoms of fully consenting adults. The offence was deliberately drafted with those sensitivities in mind, and I believe we should bear those in mind here. The offence targets only the most extreme obscene material—for example, images depicting extreme sexual violence and serious physical harm. It was not designed to make it criminal merely to possess every obscene image, however distasteful, although, as I have mentioned, the dissemination of that material will be an offence.

Last year, the Government were contacted by a campaign led by Rape Crisis South London and other women’s groups to extend the existing boundaries of the extreme pornography offence to capture extreme images depicting rape in the same terms as the equivalent Scottish offence. The Government listened to those concerns and agreed to extend the offence.

Against that background, I now turn to consider the amendments in question. Amendment 36A would remove the requirement that images of non-consensual sexual penetration be,

“grossly offensive, disgusting or otherwise of an obscene character”,

in order to be regarded as extreme pornography. Those terms are already well known to prosecutors and courts alike. They were drafted deliberately into the offence, and included in our amendment to that original offence, to ensure that the extreme pornography offence does not criminalise the simple possession of the sorts of images that it would not be illegal to circulate or distribute. To remove this necessity would be inconsistent with other aspects of the criminal law and would result in a possession offence that is too broad.

For convenience, I shall deal with Amendments 36B and 36D together, as they have similar, although not identical, effects. Amendment 36B would replace the Government’s amendments to the extreme pornography offence, including the relevant defence, with a broad provision that would criminalise the portrayal of any sexual activity that involves real or apparent lack of consent or any form of physical restraint which prevents participants indicating a withdrawal of consent. This is very broad. It could have the effect of bringing into the terms of this targeted offence the possession of pornographic images that depict any form of non-consensual sexual activity.

In the light of the balance that this Government have sought to strike with this offence, we believe that such an extension to the offence would be going too far. It would, I believe, widen inappropriately its scope and could make too wide a range of sexual activity subject to serious criminal sanction.

Amendment 36D also seeks to extend the parameters of the existing offence but would retain the necessity that the material be “explicit and realistic”. However, it would still extend the parameters of the offence too far and could capture a wide spectrum of sexual contact.

Amendment 36C seeks to explore the issue raised both at Second Reading and in the other place about the ability of the offence to deal with simulated rape scenes. I assure your Lordships that our provisions as they stand are already capable of covering the depiction of real or simulated non-consensual penetration. Both the amendment and the existing offence cover any portrayal or depiction of the acts in question. While the requirement is that the portrayal is realistic, it does not have to be real. As the noble Baroness, Lady Howe, mentioned, we have clarified this point in the Explanatory Notes to the Bill in response to these concerns.

Amendment 36E seeks to widen the scope of the existing offence to cover depictions that appear to portray incest, underage sexual activity and scenes involving sexual threats, humiliation or abuse. The protection of the country’s children from sexual abuse is a government priority. We have a robust range of offences and sanctions to deal with this truly dreadful offending, and it is a credit to the efforts of this House that our legislation in this area is rightly respected across the world. It is of course right that we keep the law in this area under review to ensure that it is fully equipped to protect our children.

Images of children are not specifically excluded from our extension of the extreme pornography offence, but we already have offences to cover the possession of indecent photographs and films of children. These offences have suitably robust sentencing levels and much lower thresholds in respect of the content of the images than the extreme pornography offence.

Finally, Amendment 36F would add to our provisions a requirement that, when evaluating images for the purposes of the offence, contextual material of certain kinds is taken into account. I appreciate that this reflects the drafting approach taken in the equivalent legislation in Scotland. However, we do not believe that the amendment is necessary: the court is already entitled to take into account all relevant evidence in determining whether material meets, or indeed does not meet, the requirements of the extreme pornography offence. Prosecutors and the courts already take the “context” of images into account when considering the existing extreme pornography offence. I hope that provides some reassurance to the noble Baroness.

The extension of this offence is well structured to ensure that the images we wish to capture fall within its parameters. The extension is in the spirit of the original offence and balances the need to criminalise the most extreme and potentially harmful or damaging material with the need to protect the lawful sexual freedoms and rights of others. Given the sensitivities involved, that balance has not been easy to achieve but I believe that we have achieved it with this reasonable, proportionate and important provision.

For those reasons, while I entirely understand the concerns expressed, the Government do not feel able to support these amendments. I hope that, with those assurances, the noble Baroness will feel able to withdraw her amendment.

[Baroness Thornton]

I thank the Minister for his considered, if somewhat disappointing, response. The point of the Committee stage of this sort of legislation—the House of Lords is particularly good at this—is to test whether this kind of clause does its job. I appreciate that the Minister thinks it does but I have to say that some of us think that one or two things in this clause need some attention. I am not going to delay the House any further by repeating what they are. The Minister said that the Government thought they had the balance right all the way through. I think there are one or two things to do with context that suggest the Government may not have got the balance right. We do not want to find ourselves in five years’ time with either no prosecutions because we did not get the balance right or with people not being prosecuted because we did not look at the things that experts are telling us are loopholes. Obviously I am happy to withdraw the amendment at this stage—apart from anything else I do not think it and my other amendments are as competent as they should be, for which I apologise—but I fear that we will be returning to this at a later stage in the Bill. I beg leave to withdraw the amendment.

Amendment 36A withdrawn.

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[Baroness Barker]

My Lords, I will address the point made by the noble Baroness, Lady Kennedy of The Shaws, that the way in which this amendment is worded is of the utmost importance. Our amendment tries to focus not on the definition of what is pornographic but on the act of revenge. That is why, in our amendment, we have concentrated on the initial posting of an image rather than the reproduction or the recommunication of it, because the act of revenge happens in the initial posting.

To respond to the noble Baroness, Lady Berridge, we have no problem with making this a sexual offence. Quite clearly it is. We do have a number of problems with the way in which her amendment is drafted. For example, it requires that the image be of the two people involved, but you can make a very good attempt at ruining somebody’s life by producing pictures of them with somebody else. I did not think that we would get to the headless man today, but we have—the point there was precisely that it was not the two people in the relationship.

The noble Baroness, Lady Kennedy, is right to make us focus on consent. There are a lot of people out there who one would best call amateur pornographers and who actually want to share the lives on the web. I do not know why, and do not ever want to see it or have anything to do with it, but they do. It should therefore be a defence that they had reason to believe that there was consent on the part of the other person. However, if we are going to make this sufficiently robust and—what we really want it to be above all else—a deterrent that makes it absolutely clear to people who are thinking of committing such an act that they may go to prison, she is right that we need to focus on that. Our amendments are not perfect but they take us quite a long way to where we want to go.

[Baroness Thornton]

My Lords, this has been a very good and interesting debate. We on these Benches support the principle of bringing forward legislation, probably along the lines that my noble friend Lady Kennedy suggested. We do not think that either of these amendments get us to the point where we want to be, as I think those who tabled them would admit, but they take us along that road and I hope we will see something emerge that does get us there.

Images described as “revenge pornography” are indeed a form of harassment and abuse. They constitute stalking and are humiliating. However, as well as a specific offence, what is also needed is the strong political will to tackle the underlying culture that creates and legitimises sexual violence, abuse and harassment in all its forms. That requires not only a government commitment to headline-making legislative reform but to ensuring effective implementation of any new offence and bringing forward compulsory sex and relationship education in our schools. The noble Baroness, Lady Brinton, referred to what goes in our schools. It is not good enough that this is done by voluntary organisations; it should be part of our curriculum. For the protection of our children, it really needs to be mandatory in our schools.

We on these Benches have problems with both these amendments, for different reasons, some of which have already been mentioned. For example, the amendment in the names of the noble Baronesses, Lady Berridge and Lady Morris, says that to commit the offence, the defendant must distribute the images,

“with the intention that he or a third person will”,

gain “sexual gratification” from doing so. That provision is problematic. As it is framed, no offence will be committed if the defendant discloses the image with a view purely to humiliate and embarrass the person in it. The motivation behind revenge porn is not typically to distribute pornography but to humiliate, embarrass and harass the victim. We need legislation that emphasises that, not the pornography aspect.

Likewise, with the amendment in the name of the noble Lord, Lord Marks, and his colleagues, we do not see why the offence should be limited to the circumstances where the individual is identifiable. As noble Lords have said, the motivation for this offence is to harass and abuse victims, and the harm will be done whether or not he or she is identifiable to others. There is some work to be done and, because we will have a long summer break before Report, I hope that we have time to undertake it. We on these Benches would be very happy to help to do that.

[Lord Faulks]

My Lords, this has been a very useful debate indeed. I will deal with Amendments 37, 38, 39 and 40 together, as they are clearly designed to deal with broadly the same issue, albeit in slightly different ways. They all seek to create a new offence banning the uploading or publishing of material that has come to be known as “revenge porn”. First, I will say that I have great sympathy for the intention that lies behind these amendments, as I said at Second Reading. The posting or publication of intimate material is despicable and cowardly, and we must ensure that such behaviour is appropriately dealt with by the criminal law.

Revenge porn is a broad term used to describe a range of offending behaviour. Usually, it involves an individual, often an adult ex-partner, uploading on to the internet sexualised images of the victim to cause them distress. Although revenge porn does not always specifically involve content that would be regarded as obscene, there is no doubt that the online sharing of intimate images without the subject’s consent can cause great distress and upset to the victim. Some of these images are posted widely across the internet and are often extremely difficult to remove.