Voyeurism (Offences) (No. 2) Bill

Liz Saville Roberts Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Wednesday 5th September 2018 Commons Chamber

[Liz Saville Roberts (Dwyfor Meirionnydd) (PC)]

I am sure that the hon. Lady shares my concern that many crimes with a gendered aspect have rates of reporting and of final prosecution that are so low. We need to look at all the reasons for that.

[Stella Creasy]

I completely agree. This is the point about changing the mindset. Let me reassure the hon. Member for Cheltenham (Alex Chalk) that where police forces, particularly in Nottingham, have started to record misogyny as a hate crime—this is not a new idea—it is transforming the experience of women not just when it comes to street harassment, but when it comes to violence against women in total.

--- Later in debate ---

I would really like the Minister to accept the amendments as they are, as they will not cost the Government huge amounts of money. By the Government’s own estimates, a tiny number of people will be prosecuted. I think that those estimates are wrong and that there will be lots more prosecutions if the police and the Crown Prosecution Service have the guidance from this House to protect our constituents and our families.

[Liz Saville Roberts]

It is an honour to follow the right hon. Member for Hemel Hempstead (Sir Mike Penning) and his excellent speech, which summarised much of what I intend to say now; I hope he will forgive me.

I would also like to refer to new clause 1 and the need for a review by the Law Commission. With hate crime, we need to look at the rates of reports as compared with the rates of successful prosecutions. If those are low or if something appears difficult to explain, there should then be a consideration of why they are low. I suspect that in many cases we will find that we are trying to use common law or pieces of statute that are now dated and just not clear. Under the weight of criminal activity, it is sometimes very challenging for the police to know how they are going to deal with the matter if there is not a clear route ahead.

I want to speak in support of the amendments tabled in the name of the right hon. Member for Basingstoke (Mrs Miller). Amendment 3, along with amendments 1 and 2, make all upskirting an offence regardless of the motivation of the perpetrator. As I said, the legal clarity necessary to prosecute upskirting becomes blurred when the focus is directed towards establishing an answer to the question of why someone has taken an intimate photo of someone else without that person’s consent. Taking a private, intimate photo of someone else without their consent should always be illegal. The legislation as it currently stands ignores victims and their experiences and places its focus solely on the intentions of the perpetrators. It thus fails to capture all instances of upskirting, fails adequately to protect the victim, and fails to make all perpetrators liable for prosecution.

These amendments rightly take the issue of consent as the primary concern, although it is evident that the motivation of the perpetrator should not be completely disregarded; rather, it should be treated proportionately, as we do in other crimes. Serious sexual offenders, such as those who commit upskirting for the purpose of sexual gratification—rather than, say, for financial gain—should still be subject to notification requirements, and the amendment does not stop that from happening. The prosecution of an act of upskirting can examine whether consent was gained when the image was taken, and look at why the image was taken, in order to ensure that offenders are treated appropriately on conviction, with some being placed on the sex offenders registers as necessary, according to their motivation. The amendment does not seek to make all perpetrators of upskirting offences subject to notification requirements, but seeks to ensure that all perpetrators of upskirting offences are able to be prosecuted, regardless of the reasons behind their actions.

The Minister has justified the current drafting of this legislation on the grounds of existing legislation in Scotland, which it mirrors. It is entirely right that we legislate to ensure that upskirting is illegal, but simply copying the legislation as it stands in Scotland, which has recently been revealed to be in need of review, will not result in an effective or long-term solution. The CPS stated to us in Committee that, if the Scottish legislation were to be replicated in England and Wales, it would

“anticipate that most offending will fall comfortably within these categories”,

but the evidence from Scotland now shows that this is unlikely. Recent figures show that, in the first six years of the law being in operation in Scotland, just 21 prosecutions have taken place out of a total of 142 charges reported—only 15%. That is a clear example of the type of gendered legislation that is not resulting in effective prosecutions. It would be irresponsible for us as legislators to press ahead with this legislation when we have clear proof that many of the reports due to be brought to the police in its name would be unlikely to lead to successful prosecution.

[Alex Chalk]

The hon. Lady is making a powerful speech. I want to explore one thing, if I may. She is saying, I think, that someone should be guilty of an offence whatever the motivation. If a court were to find that the offence were committed for the purposes of obtaining sexual gratification, then the defendant should be put on to the register, but how, if clause 3 is deleted, will a court be able to establish what the motivation was? Is there not a danger that a jury would not be deciding it but instead a judge? Is there not some logic to ensuring that it will be the jury who will determine this matter, which has important consequences for the penalty that follows?

[Liz Saville Roberts]

I am grateful to the hon. Gentleman for his intervention. We need to have this debate in relation to these crimes. None the less, if we find ourselves in a situation where the motivation is the sole means by which we decide to move ahead or not, then we are providing a bolthole that will give people a defence. I hope that the Department will be discussing further with its counterparts in the Scottish Government exactly why the prosecution rates are so low there. If there are concerns that we are giving a line of defence on the grounds of motivation, we must be very careful. Are we prioritising the right issue, or is it, as I was trying to explain, rather a matter of proportionality when it comes to sentencing and knowing what the motivation is?

I will now speak in support of amendment 5, which seeks to close the biggest loophole in this legislation—namely, that it would be an offence to take an upskirting picture but not necessarily an offence to distribute it. When the amendment was introduced in Committee, the Minister explained that there were already statutes that might capture the distribution of such photos, such as section 127(1) of the Communications Act 2003 and section 1 of the Malicious Communications Act 1988. Just as the motivation clause of this legislation means that not all upskirting would be outlawed, nor does the present legislation outlaw distribution in all cases.

We should not be passing legislation that only works to a certain extent. I appreciate that the Department for Digital, Culture, Media and Sport and the Law Commission are working together to look into the onward sharing of images as part of their review in relation to online abuse, but failing to include anything in this legislation about distribution risks creating a giant loophole that would facilitate the further distress of victims. It is an entirely predictable outcome that we can see from where we stand.

We have the opportunity to address this issue now, and we should seize it, instead of holding back. When the original upskirting legislation was passed in Scotland, it had to be followed up with additional legislation to cover the distribution of these images. The UK Government unfortunately appear blithely to be following the process of the original legislation in Scotland. I propose that we take the opportunity to learn from the pitfalls experienced there, rather than run headlong into the same complexities. I urge the Minister to commit to work with Scottish legislators to strengthen the Bill.

I encourage the UK Government to join colleagues across the House, who have made some excellent speeches this evening, in supporting the amendments. Otherwise, they risk waving through legislation whose excessive complexity and obvious loopholes will hobble it from day one.

[Ross Thomson (Aberdeen South) (Con)]

I will keep my remarks very short, Mr Speaker.

I want to begin by acknowledging why we are here discussing this very important issue: the incredible work of Gina Martin and her lawyer, my fellow Aberdonian Ryan Whelan. They have worked so hard to campaign on this issue, raise awareness of it and take it forward. I remember meeting Ryan in my constituency office and talking about Gina’s experiences a victim of upskirting, and I just could not believe that this was happening across England and Wales. It felt wrong that it was happening, and that certainly motivated me to get involved in the campaign to give justice to women and victims, and to ensure protection for all young women.

I thank all Members of the House because the Bill has had genuine cross-party support from the Labour party, Plaid Cymru, the Liberal Democrats and the Scottish National party. Their real support for the Bill has helped it to progress so swiftly through the House. It is at moments like this that Parliament shows itself at its best, with cross-party co-operation to put something on the statute book that will do good for our constituents.

We all came into Parliament to make a difference. We want to be able to serve our constituents, to change the law, to right wrongs and to protect some of the most vulnerable. Together, we are doing that. So often people see on television the spats that we have—there will be many more—and the rowdy Prime Minister’s questions, but often moments like this, which I genuinely think are when our Parliament is at its best, do not get coverage.

The practice of upskirting—taking a photograph up a person’s skirt or clothes without their consent—is truly horrific, and those who have been the victims of such a crime have been clear about how it has personally affected them. Some have described their experiences of upskirting as “scarring”, “a real invasion”, “embarrassing” and “humiliating”. When the Minister talked to the Committee, she referenced the fact that one victim described the invasion of upskirting as making her want to “peel off her skin” and scrub herself clean.

There is a real gap in the law that needs to be filled, and we can do that. This is the moment to do it because upskirting is a terrible and horrific crime. It is a horrendous invasion of privacy, and it is right that offenders will be appropriately punished following the creation of a specific upskirting offence. The whole House will be able to send a clear message to potential perpetrators that this behaviour will not be tolerated.

--- Later in debate ---

In relation to guidance, I can confirm that work is already under way to develop and update guidance on upskirting without the need for any legislative obligation to do so. I recognise the intent behind the amendments, but this narrow Bill is not the place to debate misogyny becoming a hate crime. However, we as a Government are concerned to ensure that our hate crime legislation is up to date and consistent. I am pleased to announce today that I will be asking the Law Commission to undertake a review of the coverage and approach of hate crime legislation, following its earlier recommendation to do so. This will include how protective characteristics, including sex and gender characteristics, should be considered by new or existing hate crime law. As my right hon. Friend the Member for Broxtowe (Anna Soubry), my hon. Friend the Member for Christchurch (Sir Christopher Chope), my right hon. Friend the Member for Hemel Hempstead and my hon. Friend the Member for Aberdeen South mentioned, this is the right way forward. I will confirm that the Ministry of Justice will make available the necessary funds for the review and I will write to the Law Commission this week outlining our intention. On that basis, I ask the hon. Member for Walthamstow to withdraw her amendments.

[Liz Saville Roberts]

I am grateful to the Minister for announcing a review by the Law Commission. Will she commit to considering in the review a wider range of protective characteristics that are recognised by some police forces, in particular my own in north Wales, which considers English and Welsh language as hate crime protected characteristics? Will she consider those in the review as well?

[Lucy Frazer]

I am happy to take that away and consider it. It is appropriate that when we look at protected characteristics we do not look exclusively at sex and gender characteristics, which as I said will be included. I am very happy to consider the point the hon. Lady makes and I will get back to her on that.

Secondly, I would like to deal with amendments 1 to 4, tabled by my right hon. Friend the Member for Basingstoke (Mrs Miller), in relation to purposes. Before turning to the substance of her amendments, I would like to pay credit to her for all her work in this area. For many years, as Chair of the Women and Equalities Committee and individually as a Member of Parliament, she has continually stood up for the rights of women. I am very grateful to her for highlighting important points to me on the Bill in Committee and more informally. The Department has considered very carefully the issues she raises and reflected on them. I will set out in due course how we propose to deal with the points she has very carefully and helpfully raised for consideration, but first I will deal with the substance of the Bill as drafted.

In the Bill as drafted, upskirting is criminalised if the perpetrator takes an image with the purpose of either sexual gratification or causing humiliation, distress or alarm to their victim. The reason those motivations are identified in the Bill is that they are used in other current legislation. Amendments 1 to 4 would remove those defined purposes, effectively taking away any mens rea to the offence and therefore criminalising the taking of all upskirting photographs whatever the circumstances. As I understand it from the explanatory statement and the speeches today, the intention behind amendment 3 is to ensure that those undertaking this sort of inappropriate behaviour for group bonding or financial gain are caught.