Criminal Justice Bill

Debate between Laura Farris and Maria Miller

Report stage
Wednesday 15th May 2024 Commons Chamber

[Dame Maria Miller (Basingstoke) (Con)]

Intimate image abuse is an important issue to be dealt with. Can the Minister explain why she has not approached it in the same way as her colleagues approached it in the Online Safety Bill? It was a long-fought battle to have the Online Safety Bill recognise consent as pivotal, yet she has chosen not to take that approach at this stage, which I think many will find disappointing.

[Laura Farris]

I want to be crystal clear that, under the new clause, the offence is committed if the pseudo-image is created without the consent of the person who is the subject. That is at subsections 1(c) and 2(c) of proposed new section 66AD.

Let me talk for a moment about intent. The new clause differs from some of the content in the Online Safety Act 2023. It does not relate to intimate images, such as a person wearing a swimsuit, but applies to sexually explicit images, which are defined in legislation. It requires not only that the image is sexually explicit and is created without the consent of the subject matter, but that it is done for the purposes of sexual gratification or with the intent of causing humiliation, alarm or distress. I gently say that a similar measure was debated in the Bill Committee. I think it was tabled by the hon. Member for Nottingham North (Alex Norris), and he will recognise that the intent of the provisions that the Government have adopted is the same as the Opposition’s.

I am aware of what my right hon. Friend the Member for Basingstoke is saying about the base events. Perhaps I can allay her concerns by simply saying this: it is a novel new measure for any Government to take. She makes sensible and compelling arguments on this point, and I hope she will feel reassured if we take an iterative approach for the time being. She will recall that the Law Commission recommended that we did not introduce legislation at all, and I will come on to say a little about that. It is right to say that other countries are looking at us carefully. The Justice Secretary was at the G7 in Venice just last weekend, and other G7 Justice Ministers had noticed that we are making this change and were observing carefully. We are making this change because we recognise the inherent risk posed by these images and that the offence is overwhelmingly targeted at women, predicated on an absence of consent. As such, we consider it a gateway to more serious offending.

We make some points by way of clarification. We carefully considered the Law Commission’s recommendations in its excellent report on intimate image abuse, which has informed much of our recent work, although respectfully on this, we have diverged from its point of view. In response to some of its concerns, I would like to reassure the House. We recognise that the amendment could criminalise young people, particularly teenage boys. To reduce the risk of over-criminalisation, we believe that we have set pragmatic parameters. Creation alone will be a non-imprisonable offence, although it will incur a potentially unlimited fine. The offence of creation alone would not attract notification requirements, meaning that the offender will not be placed on the sex offenders register. As hon. Members will know, all of that changes if the image is shared. Victims of that offence will be entitled to automatic anonymity in line with all the other sexual offences and they will also be eligible for special measures at trial. We are delighted to see major deepfake websites withdraw from the United Kingdom and we encourage the others to follow their lead.

I turn to Government new clause 87, which introduces a statutory aggravating factor for manslaughter involving sexual conduct. The clause corresponds to, and potentially should be read in conjunction with, section 71 of the Domestic Abuse Act 2021, which says that it is not a defence to argue that a victim consented to the infliction of serious harm for the purpose of sexual gratification.

We have long held concerns about killing of this nature where, by definition, the victim cannot give an account of consent, yet on occasions the court has implicitly sought to categorise the killing as a consequence of sexual choice, as opposed to the consequence of the development of social norms based on structural inequality. We invited the eminent criminal barrister Clare Wade KC to consider the issue specifically in her domestic homicide review last year. She said that cases of this nature must be viewed through the prism of coercive control and that

“the policy underpinning law ought to consider the wider harms which emanate from the behaviour which can and does lead to this category of homicide.”

We agree, and we are increasing the punishment for degrading and abusive conduct of this nature. Following careful consultation with the Sentencing Council, we are tabling a statutory aggravating factor so that sentences for manslaughter involving sexual conduct must be more severe. It will cover all cases where the act is directly attributable to sexual conduct.

I want to provide the hon. Member for Birmingham, Yardley (Jess Phillips) with one point of reassurance. She will know from all her work, and particularly the research conducted by We Can’t Consent To This and the team, that of all these homicides almost 60% are strangulation cases. I know that that is not the point that she wishes to make with her amendment, but there is some overlap.

On parental responsibility, as hon. Members will be aware, the Government have already amended the Children Act 1989 via the Victims and Prisoners Bill to provide for the automatic suspension of parental responsibility in cases where one parent kills the other. We are making an amendment to develop the law further, providing that, where a father is convicted of child rape, parental responsibility that he may have for any child will be automatically suspended.

I pay tribute to the right hon. and learned Member for Camberwell and Peckham (Ms Harman)—I think that she is in the wars at the moment—for the way in which she has presented this issue. She has advanced the compelling argument that we have long-established principles to protect children from sex offenders by placing people on the sex offenders register and protecting them from working with children, but while we have measures to protect other people’s children, the same protection does not exist for the children of the offender unless the mother goes to the family court to remove his rights.

I also pay tribute to Sanchia Berg, the journalist who revealed this issue through her work and highlighted the practical obstacles that some mothers had faced in making this application, as well as other families who have talked about their experience, including via their Member of Parliament, one example being my hon. Friend the Member for Meriden (Saqib Bhatti); I am not sure if he is in his place.

The father will still be able to apply to the family court to have the suspension of his parental responsibility lifted, but it is obviously fair to assume that, if he has been convicted of child rape, such an application is unlikely to succeed. We have also included a clear requirement for this measure to be reviewed after it has been in place for three years.

--- Later in debate ---

[Laura Farris]

It is not just the effect of the amendment that will improve police recording; one purpose of the amendment was to improve police recording and it will give, I hope, a much more accurate picture of the extent of the problem.

On the comments that my right hon. Friend the Member for Basingstoke (Dame Maria Miller) made regarding the creation offence related to deepfake images and intent, I will consider the point carefully. I would like to have further discussions on it.

[Dame Maria Miller]

I hope the Minister was listening to the Chair of the Justice Committee, who wholeheartedly agreed with the point I was making, namely that it would be entirely consistent with the sex offences law to remove intent from that measure and simply focus on consent. That is what we need to hear, and I hope the Minister will now agree at the Dispatch Box that she will consider that strongly.

[Laura Farris]

I certainly give my right hon. Friend that reassurance. I look forward to continuing our discussions throughout the passage of the Bill.

Question put and agreed to.

New clause 86 accordingly read a Second time and added to the Bill.

New Clause 62

Sexual Activity with a Corpse

(1) In the Sexual Offences Act 2003 for section 70 substitute—

“70 Sexual activity with a corpse

(1) A person commits an offence if—

(a) the person intentionally performs an act of touching (with a part of their body or anything else),

(b) what is touched is a part of the body of a dead person,

(c) the person knows that, or is reckless as to whether, that is what is touched, and

(d) the touching is sexual.

(2) A person who commits an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine (or both);

(b) on conviction on indictment, to imprisonment for a term not exceeding—

(i) if the touching involved penetration of a part of the body mentioned in subsection (1)(b), 7 years;

(ii) otherwise, 5 years.”

(2) In consequence of the amendment made by subsection (1), in the following provisions for “sexual penetration of” substitute “sexual activity with”—

paragraph 152 of Schedule 15 to the Criminal Justice Act 2003;

paragraph 35 of Schedule 3 to the Sexual Offences Act 2003;

paragraph 33 of Schedule 4 to the Modern Slavery Act 2015;

paragraph 38(ba) of Schedule 18 to the Sentencing Code.” —(Laura Farris.)

This new clause replaces the offence under section 70 of the Sexual Offences Act 2003 with an offence that covers any intentional touching of a corpse that is sexual, and increases the maximum sentence of imprisonment for an offence involving penetration to 7 years and in other cases to 5 years. It is proposed to add the new clause after clause 15.

Brought up, read the First and Second time, and added to the Bill.

New Clause 87

Manslaughter: sexual conduct aggravating factor

“(1) In Chapter 3 of Part 4 of the Sentencing Code (seriousness and determining sentence), after section 72 insert—

“72A Manslaughter involving sexual conduct

(1) In considering the seriousness of an offence of manslaughter involving sexual conduct, the court must—

(a) treat the fact that the offence involves sexual conduct as an aggravating factor, and

(b) state in open court that the offence is so aggravated.

(2) This section has effect in relation to a person who is convicted of an offence on or after the date on which section (Manslaughter: sexual conduct aggravating factor) of the Criminal Justice Act 2024 comes into force.”

(2) In section 238 of the Armed Forces Act 2006 (deciding the seriousness of an offence), after subsection (8) (inserted by section 23) insert—

“(9)In section 72A of the Sentencing Code (manslaughter involving sexual conduct)—

(a) the reference to an offence of manslaughter is to be read as including a reference to an offence under section 42 as respects which the corresponding offence under the law of England and Wales is manslaughter, and

(b) the references to a court are to be read as including a court dealing with an offender for a service offence.”.”—(Laura Farris.)

This new clause makes the fact that an offence of manslaughter involves sexual conduct an aggravating factor (as well as making the same provision as regards the corresponding service offence.

Brought up, read the First and Second time, and added to the Bill.

New Clause 88

Length of terrorism sentence with fixed licence period: Northern Ireland

“(1) In Article 7 of the Criminal Justice (Northern Ireland) Order 2008 (S.I. 2008/1216 (N.I. 1))—

(a) in paragraph (2) omit “Articles 13A, 14 and 15A and”;

(b) in paragraph (3) before sub-paragraph (a) insert—

“(za) Articles 13A and 14 of this Order;”.”

(2) The amendments made by this section apply in relation to convictions occurring on or after the day on which this section comes into force.”—(Laura Farris.)

This new clause results in Article 7(2) of the Criminal Justice (Northern Ireland) Order 2008 (requirement that term of sentence is commensurate with seriousness) applying to a sentence under Article 15A of that Order (terrorism sentence with fixed licence period).

Brought up, read the First and Second time, and added to the Bill.

New Clause 89

Reviews of sentencing: time limits

“(1) Schedule 3 to the Criminal Justice Act 1988 (reviews of sentencing - supplementary) is amended as follows.

(2) In paragraph 1 (time limit for notice of application for leave to refer a case)—

(a) the existing provision becomes sub-paragraph (1) of that paragraph;

(b) at the end of that sub-paragraph insert “(“the relevant period”); but in England and Wales this is subject to sub-paragraph (2).”;

(c) after that sub-paragraph insert—

“(2) Where—

(a) the Attorney General receives a request to review the sentencing of a person, and

(b) the request is received in the last 14 days of the relevant period,

notice of an application for leave to refer the case in question to the Court of Appeal under section 36 may be given within 14 days from the day on which the request is received.

(3) For the purposes of this Part, a certificate of the Attorney General as to the date on which a request to review the sentencing of a person was received is conclusive evidence of that fact.

(4) Where more than one request to review the sentencing of a person is received, references in sub-paragraphs (2) and (3) to a request are to the first request that is received.”

(3) In paragraph 12 (application of Schedule to Northern Ireland), after paragraph (d) insert—

“(da) paragraph 1 has effect as if sub-paragraphs (2) to (4) were omitted;”.”—(Laura Farris.)

This new clause provides that where the Attorney General receives a request to review a person’s sentence in the last 14 days of the current period for giving any notice of application for leave to refer the case to the Court of Appeal, the Attorney General may give such notice within 14 days from the date the request is received.

Brought up, read the First and Second time, and added to the Bill.

New Clause 94

Cuckooing

“(1) A person commits an offence if they—

(a) exercise control over the dwelling of another person, and

(b) do so for the purpose of enabling the dwelling to be used in connection with the commission (by any person) of one or more offences listed in Schedule (Cuckooing: specified offences).

(2) It is a defence for a person charged with an offence under this section to prove that the person mentioned in subsection (1)(a) consented to the exercise of control for the purpose mentioned in subsection (1)(b).

(3) Section (Cuckooing: interpretation) contains provisions about the interpretation of this section.

(4) The Secretary of State may by regulations amend Schedule (Cuckooing: specified offences).

(5) A person who commits an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine (or both);

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine (or both).”—(Laura Farris.)

This clause, together with NC95 and NS4, create an offence of exercising control over another person’s dwelling, for the purpose of enabling it to be used in connection with the commission of certain offences.

Brought up, read the First and Second time, and added to the Bill.



New Clause 95

Cuckooing: interpretation

“(1) This section supplements section (Cuckooing).

(2) A reference to “the dwelling of a person” is to any structure or part of a structure occupied by the person as their home or other living accommodation (whether the occupation is separate or shared with others), together with any yard, garden, grounds, garage or outhouse belonging to it or used with it.

(3) In subsection (2) “structure” includes a tent, caravan, vehicle, vessel or other temporary or movable structure.

(4) The circumstances in which a person “exercises control over the dwelling of another person” (B) include circumstances where the person exercises control (whether temporarily or permanently) over any of the following—

(a) who is able to enter, leave, occupy or otherwise use the dwelling or part of the dwelling;

(b) the delivery of things to, or the collection of things from, the dwelling;

(c) the way in which, or the purposes for which, the dwelling or part of the dwelling is used;

(d) the ability of B to use the dwelling or part of the dwelling for B’s own purposes.

(5) For the purposes of section (Cuckooing)(2), a person is regarded as “consenting” to the exercise of control for the purpose mentioned in section (Cuckooing)(1)(b) only if—

(a) they are aged 18 or over,

(b) they have capacity (within the meaning of the Mental Capacity Act 2005) to give consent to the exercise of control for that purpose,

(c) they are given sufficient information to enable them to make an informed decision about whether to consent,

(d) they give consent freely, and

(e) the consent is not withdrawn.”—(Laura Farris.)

See the statement for NC94.

Brought up, read the First and Second time, and added to the Bill.

New Clause 103

Restricting parental responsibility when sentencing for rape of a child

“(1) The Children Act 1989 is amended in accordance with subsections (2) to (5).

(2) In section 10A (inserted by section (Restricting parental responsibility where one parent kills the other)(3) of the Victims and Prisoners Act 2024)—

(a) for subsection (1) substitute—

“(1) This section applies where the Crown Court is sentencing—

(a) a person (“the offender”) who is a parent with parental responsibility for a child (“the child”) for the murder or, in the circumstances mentioned in subsection (2), manslaughter of the child’s other parent;

(b) a person (“the offender”) who has parental responsibility for a child (“the child”) for an offence under section 1 of the Sexual Offences Act 2003 (rape) against a child or under section 5 of that Act (rape of a child under 13).”;

(b) in subsection (3), for “when sentencing the offender” substitute “with respect to the child”;

(c) in subsection (5)(b), for “offender is convicted of manslaughter” substitute “Crown Court is sentencing the offender for manslaughter”;

(d) in subsection (7), for “murder or manslaughter” substitute “offence”;

(e) after subsection (9) insert—

“(10) In subsection (1) “sentencing” is to be read in accordance with the Sentencing Code (see section 401 of the Code).”

(3) In section 10B (inserted by section (Restricting parental responsibility where one parent kills the other)(3) of the Victims and Prisoners Act 2024)—

(a) in subsection (1), for “parent” substitute “person”;

(b) in subsection (3)(b), for “parent is acquitted on appeal of the murder or manslaughter” substitute “person is acquitted on appeal of the offence”.

(4) In section 33(3A) (inserted by section (Restricting parental responsibility where one parent kills the other)(5) of the Victims and Prisoners Act 2024), in both places, for “parent” substitute “person”.

(5) In section 91—

(a) in subsection (5B) (inserted by section (Restricting parental responsibility where one parent kills the other)(6)(b) of the Victims and Prisoners Act 2024)—

(i) in paragraph (a), for “parent (“P”) with respect to a child (“C”)” substitute “person with respect to a child”;

(ii) in paragraph (b), for “P with respect to C” substitute “the person with respect to the child”;

(b) in subsection (5C) (inserted by section (Restricting parental responsibility where one parent kills the other)(6)(b) of the Victims and Prisoners Act 2024), for “P with respect to C” substitute “the person with respect to the child”.

(6) In section 379 of the Sentencing Act 2020 (other behaviour orders etc), after subsection (1) insert—

“(1A) See section 10A(1) of the Children Act 1989 for circumstances in which the Crown Court may be required to make a prohibited steps order when dealing with an offender for murder, manslaughter or the rape of a child.””—(Laura Farris.)

This new clause expands the circumstances in which the Crown Court must make a prohibited steps order under section 10A of the Children Act 1989 (inserted by the Victims and Prisoners Bill) to cases where a person with parental responsibility is convicted of the rape of a child.

Brought up, read the First and Second time, and added to the Bill.

New Clause 104

Report on duty to make prohibited steps orders and power to repeal

“(1) As soon as reasonably practicable after the end of the period of three years beginning with the day on which section (Restricting parental responsibility when sentencing for rape of a child) comes into force, the Secretary of State must—

(a) prepare a report on the operation of sections 10A and 10B of the Children Act 1989 (duty on Crown Court to make prohibited steps order) during the period, and

(b) publish the report and lay it before Parliament.

(2) The Secretary of State may by regulations repeal either—

(a) section 10A(1)(b) of the Children Act 1989, or

(b) sections 10A and 10B of that Act.

(3) But regulations under subsection (2) may only be made during the period of 6 months beginning with the day on which the report under subsection (1) was laid before Parliament.

(4) The consequential provision which may be made by regulations under subsection (2) by virtue of section 86(1)(a) includes provision amending or repealing any provision made by an Act of Parliament or an Act or Measure of Senedd Cymru.” —(Laura Farris.)

This new clause requires the Secretary of State to prepare a report on the operation of sections 10A and 10B of the Children Act 1989 and confers the power to repeal those sections or their application to cases involving rape of a child (whether because of the report or otherwise).

Brought up, read the First and Second time, and added to the Bill.

New Clause 44

Sexual exploitation of an adult

(1) The Sexual Offences Act 2003 is amended as follows.

(2) Section 52 is amended as follows—

(a) in the title for “Causing or inciting prostitution” substitute “Sexual exploitation”, and

(b) in paragraph (1)(a) for “causes or incites another person to become a prostitute” substitute “sexually exploits another person”.

(3) Section 53 is amended as follows—

(a) in the title for “prostitution” substitute “sexual exploitation”, and

(b) in paragraph (1)(a) for “prostitution” substitute “sexual exploitation”.

(4) Section 54 is amended as follows—

(a) in subsection (2) for “sections 51A, 52, 53 and 53A” substitute “section 53A”, and

(b) at end insert—

“(4) In sections 52 and 53 “sexual exploitation” means conduct by which a person manipulates, deceives, coerces or controls another person to undertake sexual activity.”.”—(Jess Phillips.)

An amendment to the Sexual Offences Act 2003, specifically in sections 52 and 53, replace “prostitution for gain’” with “sexual exploitation of an adult”.

Brought up, and read the First time.

Question put, That the clause be read a Second time.