Voyeurism (Offences) (No. 2) Bill

Baroness Vere of Norbiton Excerpts

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

If I am proved wrong down the road, so be it. Then there would be a further conundrum about how to ensure that both jurisdictions improve the formulation of the offence, but for the moment I do not see that it is necessary and I make that argument of interpretation alongside the pragmatic one about the need to complete the passage of this vital Bill, on which we can all agree, through this House.

[Baroness Vere of Norbiton (Con)]

My Lords, I thank all noble Lords who have taken part in this short debate. The Bill creates two new offences to capture instances where a person takes an upskirt image for the purpose of obtaining sexual gratification and/or causing humiliation, distress or alarm to the victim. It also ensures that the most serious offenders, where the purpose of the offending is for sexual gratification, are made subject to notification requirements—colloquially known as being put on the sex offenders register. In speaking to Amendment 1, I will speak also to Amendments 2 and 3.

Amendment 1, tabled by the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, does not add an additional purpose but replaces the purpose of humiliating, alarming or distressing the victim with a purpose of invasion of privacy, whether or not the perpetrator intends to humiliate, distress or alarm the victim. The prosecution would therefore need to show that the perpetrator intended to invade the victim’s privacy—or to obtain sexual gratification under the existing first purpose—to be guilty of one of the new offences.

Amendments 2 and 3, tabled by the noble Lord, Lord Marks, and the noble Baroness, Lady Burt, would add a third and/or a fourth purpose for which a perpetrator could commit either of the new upskirting offences contained within the Bill. They seek to ensure that those who commit upskirting for financial gain, or for entertainment or amusement, would be caught by the offences. There is support, as we have heard today, from all sides of your Lordships’ House to ensure that the law is suitably robust to protect victims from the distressing practice of upskirting. I recognise that these three amendments are well intentioned and that noble Lords are trying to be helpful, but they are unnecessary and may delay the passage of what is a good Bill as drafted. I thank the noble Baroness, Lady Chakrabarti, for her support in this.

Amendment 1 seeks to address concerns that perpetrators can argue that they had no intention to humiliate, distress or alarm the victim and, by doing so, get away with this heinous behaviour. The amendment is based on the view that, because by its very nature the act of upskirting is an invasion of privacy, it would be easier for a perpetrator to be caught by the Bill if it was drafted in this way, compared with the need to establish an intention to humiliate, alarm or distress the victim, as it is currently drafted.

The amendment would include those who may claim they committed an act of upskirting for financial gain, such as the paparazzi, which is the issue that Amendment 2 seeks to address; those doing it “for a laugh” or for entertainment or amusement, which is the issue that Amendment 3 seeks to address; or indeed those who claim that the victim could not have felt humiliated, distressed, or alarmed because they did not know that upskirting had taken place.

However, I am not convinced that Amendments 1, 2 and 3 address these specific concerns any better than the purposes as currently drafted, and I remain confident that the existing purposes will capture all those who should be criminalised for this behaviour, including those who would come under the proposed purposes set out in the amendments. Obtaining sexual gratification and humiliating, alarming or distressing a victim is terminology which is clear, appropriate and familiar to criminal justice agencies and the courts. I thank the noble Baroness, Lady Chakrabarti, for her definition of “humiliating”. I too have looked it up in a dictionary and it is indeed very broad; nor is the bar set particularly high, I think.

Perpetrators of upskirting will likely have several different purposes or motivations when conducting themselves in this way. For example, if someone took an upskirt image because of their voyeuristic tendencies or because they were going to put it on a pornographic website, or have it published in some other way, they would likely be captured because there is a clear inference that their purpose was to obtain sexual gratification or so that another person could obtain sexual gratification.

It is no defence, with regard to the current purposes, to say that the victim was not aware that an upskirt image had been taken and therefore would not actively feel humiliated. It is the intent of the perpetrator when upskirting their victim which is key here: this is a fundamentally covert practice and the victim may not know it is happening at the time. The fact that the victim is therefore spared the humiliation, alarm or distress when the upskirting occurs does not change the fact that this was the perpetrator’s intent in taking the image in the first place. If it was not, the most likely alternative is that the perpetrator intended to obtain sexual gratification, which remains the other purpose in any event.

In relation to Amendment 2, if an upskirt image of a celebrity is published in a newspaper or shown on any other media outlet, the image will be of interest and therefore may have value because of the humiliation, alarm or distress that is, or is intended to be, caused to the victim. Whether or not a person was paid for the image does not detract from the humiliation caused, but the act of offering it for publication might be taken into account at the sentencing stage as making the offence more serious. It does not matter whether it was the person who took the image or the person they intended to share it with who has the purpose of obtaining sexual gratification or causing humiliation—the new offences apply in either case. Indeed, where there is sufficient evidence that the purpose for taking an upskirt image was, for example, to humiliate the victim, a perpetrator could be charged regardless of any other reasons, financial or otherwise, they might have for taking the photograph. There is also a concern that “financial gain” is itself not defined and would need to be in order to be properly understood and interpreted in the context of upskirting and other sexual offences legislation.

Turning to Amendment 3, if someone takes an upskirt image “for a laugh”—or, to put it another way, for entertainment or amusement—it is clearly implicit that the laugh, entertainment or amusement derives from the humiliation, alarm or distress caused to the victim. The primary reason the upskirt image has entertainment value, to the perpetrator or anyone else, is again because of the humiliation, alarm or distress caused to the victim. Therefore, this behaviour will be caught by the purposes as currently drafted.

It is worth noting that Amendment 1 could limit the flexibility the Bill currently provides—for example, the existing purpose of intending to humiliate, alarm, or distress covers a case where a person takes an upskirt image to bond with friends or peers. It is less clear that the courts would consider that the friend—or “the lad”—looking at these images could be said to have the purpose of invading the victim’s privacy. This could be termed as a loophole.

I also wonder whether Amendment 1 would overcome the evidential issue that the noble Lord is concerned about. It is at least as arguable that the intent to humiliate is as intrinsic to the practice of upskirting as the intent to invade privacy. Surely the likely effect of the amendment would be to shift the focus of argument from whether a person intended to humiliate or distress a victim to whether they intended to invade their privacy. At this point I turn to the noble and learned Baroness, Lady Butler-Sloss, and her blowing-up skirt. Would she have the expectation of privacy if her skirt had blown up? That argument would be had in the courts—another possible loophole, or indeed a manhole.

--- Later in debate ---

[Lord Swinfen (Con)]

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

[Baroness Vere of Norbiton]

My Lords, I can address that question very quickly: yes, it does. This is a non-gender-specific piece of legislation.

Amendment 4 would create a further offence of disclosing an upskirt image to another person without the consent of the person in the image. It would also provide for two defences for this offence: namely, that the disclosure of the image was necessary for the purposes of preventing or detecting crime, or that the image was not disclosed with the intent of disclosing an image of another person’s genitals, buttocks or underwear.

The Government share the concerns around the onward sharing of upskirt images and understand the very real harm that this causes victims. It is important to send a clear message that sharing such images without consent is unacceptable and causes humiliation, alarm and distress. It is therefore important that we ensure that the law is sufficiently robust to protect victims from this disturbing practice. However, the Bill is intended to close a small gap in the law around the taking of upskirt images, which is just one aspect of a far wider problem. Legislating for the non-consensual sharing of intimate or naked images, including upskirt images, is a far more complex issue than the offences covered by the Bill.

That is why the Parliamentary Under-Secretary of State for Justice committed in the other place to ask the Law Commission to review the taking and sharing of all non-consensual intimate images. This will be a broad review looking at how technological change has enabled new types of harmful behaviour and how the law needs to evolve to tackle it. The Ministry of Justice is currently working with the Department for Digital, Culture, Media and Sport and the Law Commission to consider how best to take this important and wide-ranging piece of work forward. This will build on the detailed and insightful report on online and offensive communications published by the Law Commission on 1 November. The report makes several recommendations about how the criminal law could be reformed to tackle abusive and harmful online communications.