Sir Christopher Chope
I say “Hear, hear” to what my right hon. Friend has just said. This is a good day for democracy. I pay tribute to the Minister for the understanding that she has demonstrated throughout the course of this debate and for her kind personal remarks about my motivation, which has been so misunderstood—deliberately by some and in ignorance by others.
Owing to the shortage of time on Report, the Minister was unable to take my intervention when she was responding to my amendment 6. However, I know that on Third Reading we discuss the content of the Bill, rather than rejected amendments, so I want to look at the part of the Bill that my amendment was intended to address.
My hon. and learned Friend slightly misrepresented what I was proposing, because, far from wanting to weaken the Bill, I was suggesting that, as presently drafted, clause 1(4) will not ensure that sufficient numbers of people who are guilty of voyeurism with the motivation of sexual gratification actually reach the sex offenders register. The Bill is currently drafted in such a way that someone can be guilty of voyeurism for the purposes of sexual gratification, but they will not go on the sex offenders register if they are under 18 unless they have been sentenced to a term of at least 12 months’ imprisonment, which is extremely unlikely and de minimis.
The more important aspect is that the Bill as currently drafted means that someone will not go on the sex offenders register even if they have committed an offence of upskirting with the motivation of sexual gratification unless the victim was under 18 or the offender has been sentenced to a term of imprisonment or detained in a hospital or made the subject of a community sentence of at least 12 months. The offence of voyeurism with the intent of sexual gratification should be linked directly with the sex offenders register, and I do not understand why the Government have been unwilling to tighten that up in the way that some of us would have wished. I hope that that will be considered in the other place.
Like my right hon. Friend the Member for Basingstoke (Mrs Miller), I hope that the other place will also look carefully at the restrictions that are currently in proposed new section 67A(1)(b) of the Sexual Offences Act 2003, which is found in clause 1(2) and relates to the necessity of proving a purpose in order to establish guilt. My hon. and learned Friend the Minister talked about mens rea—I am not sure whether, in due course, we will get on to “womens rea”—and I would like her to explain how it is that, under the current common law offence of outraging public decency, for which she says this Bill is filling a geographical gap, there is no requirement for mens rea. That common law offence is on the statute book, so if there is no requirement for mens rea in relation to that offence, why are we saying that the geographical gap in the law can be filled only by legislation that includes a requirement of mens rea and a requirement to prove the motive of sexual gratification in particular, and other motives besides?
As my right hon. Friend the Member for Basingstoke asked, which instances of voyeurism that are currently subject to the common law, and that can be prosecuted under the common law offence, will not be covered by this Bill in the geographical location that is not covered by the offence of outraging public decency? It does not seem to me that my hon. and learned Friend the Minister has addressed that conundrum, and in the absence of its having been dealt with in this House, I hope it will be dealt with in the other place.
My hon. and learned Friend has offered a review of the legislation after two years, which is obviously better than nothing, but with the greatest of respect, the best thing for her and her Department to do is to review the Bill between now and when it is debated in the other place—that will hopefully be a lot sooner than two years—so that we can try to get some consistency. As a leading counsel, she will know that, where a statutory offence is introduced, it trumps a common law offence as a matter of principle. Surely the Government’s motivation is to simplify the law in this area and to ensure that all offences of upskirting are dealt with under the Bill, rather than under the common law. It would help to spell that out, not least for the benefit of police officers and the prosecuting authorities.
If that is the intention—I drew an analogy earlier with the offence of using a mobile phone while driving compared with the offence of driving without due care and attention—there is a lot to be said for having the specific offence in the Bill cover all instances of upskirting. If and when the Minister addresses the issue, perhaps she will come up with an answer to the question asked by my right hon. Friend the Member for Basingstoke of what offences of upskirting she believes should not be subject to any criminal sanction. That is our challenge to my hon. and learned Friend the Minister.
In all the correspondence I have received, people feel that all upskirting offences should be subject to the criminal law and criminal sanctions, irrespective of motive. If there are to be offences that are not subject to criminal sanctions, we need to spell them out squarely and fairly, which has not been done so far.
I welcome the scrutiny the Bill has received so far, the way in which the Minister has accepted the spirit of new clause 1 and her willingness to look again at other issues, and I am happy to support Third Reading. But I hope that when, eventually, the Bill returns to this House, the Government will accept amendments made in the other place that make it even better.
Question put and agreed to.
Bill accordingly read the Third time and passed.