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.

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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.

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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.

Voyeurism (Offences) (No. 2) Bill (Third sitting)

Liz Saville Roberts Excerpts

Committee Debate: 3rd sitting: House of Commons
Thursday 12th July 2018 Public Bill Committees

[The Chair]

Before we begin, Members may remove their jackets if they wish. Can everyone please ensure that all electronic devices are switched off? Tea and coffee are not permitted.

The selection list, which shows the order of debates, is available in the room. However, I remind Members that decisions on amendments take place in the order in which they appear on the amendment paper. I will use my discretion to decide whether to allow a separate stand part debate on individual clauses following the debates on the relevant amendments.

Clause 1

Voyeurism: additional offences

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

I beg to move amendment 2, in clause 1, page 1, line 9, leave out

“, for a purpose mentioned in subsection (3),”.

This amendment is consequential to Amendment 1

[The Chair]

With this it will be convenient to discuss the following:

Amendment 3, in clause 1, page 2, line 1, leave out paragraph (c).

This amendment is consequential to Amendment 1

Amendment 1, in clause 1, page 2, line 6, leave out subsection (3) and insert—

“(3) It is a defence for a person (A) charged with an offence under this section to prove—

(a) in respect of an offence under subsection (1)—

(i) that operating the equipment was necessary for the purposes of preventing or detecting crime, or

(ii) that A did not operate the equipment with the intent of observing another person’s genitals, buttocks or underwear, and

(b) in respect of an offence under subsection (2)—

(i) that recording the image was necessary for the purposes of preventing or detecting crime, or

(ii) that A did not record the image with the intent of recording an image of another person’s genitals, buttocks or underwear.”

[Liz Saville Roberts]

Diolch yn fawr, Ms Buck. It is a pleasure to serve under your chairmanship.

Amendment 2, along with amendments 3 and 1, was tabled by the right hon. Member for Basingstoke (Mrs Miller) and has support from Members of every single political party in the House. The group of amendments seeks to change the purposes mentioned in the Bill to ensure that all upskirting is illegal, regardless of the motivation.

The common issue in all upskirting cases is that the victims did not know that a picture was taken, nor did they consent. The amendments seek to ensure that the Bill, which intends to close a loophole, does not enable another on the motivation of the perpetrator. That view is supported by the Director of Public Prosecutions; victims who presented evidence to the Committee, whose anonymity should be respected; the victims’ lead of the Association of Police and Crime Commissioners, Dame Vera Baird; and Victim Support, in the most recent written evidence presented to the Committee.

As we are amending the Sexual Offences Act 2003, consent should surely be considered, given the significance of establishing consent and the degree to which the complainant has capacity to give consent in other sexual crimes. Upskirting by its very nature is committed without the victim’s knowledge or consent. The Bill does not adequately cover financial motives such as selling to the media, as is common in celebrity upskirting shots. Public order offences might cover such situations, but if they can be covered by the Bill simply by changing the focus to consent, that should be done.

The Bill does not cover situations where the motivation to take a picture is group bonding or banter. In such situations, images are taken not always for sexual gratification or to distress the victim, but purely to have a laugh with friends. The amendments would cover that situation.

I beg the Committee’s leave to refer to the views presented by Alison Saunders, who notes:

“The Bill criminalises observation or recording without the complainant’s consent. Unlike other sexual offences, this offence is commonly committed without the complainant’s knowledge.”

She states that consideration must therefore be given

“to providing that the offence is committed where the complainant either does not know or consent.”

Alison Saunders notes concerns about the specific purposes for which the activities in question must be committed. She anticipates that most offending would fall within the specified categories, but warns that

“this is another element that the prosecution will need to prove. It is not inconceivable that suspects will advance the defence that this purpose is not made out beyond reasonable doubt and/or that they had another purpose, such as ‘high jinks’.”

Some of the evidence that has been presented to us—again, I respect the anonymity of the victims—lays out the range of defences people will put forward with success, which brings into question whether we should not be more cautious in our approach to purposes. Ms Saunders also notes

“Consideration could be given as to whether purpose is a necessary or relevant element of the offence (once it has been proved that the conduct is intentional, and given that it involves an affront to the integrity and dignity of the victim).”

The right hon. Member for Basingstoke set out many of those arguments in her oral evidence on Tuesday.

As this legislation is necessary, I do not intend to hold up the Committee or to press the amendments at this stage. I would, however, like to stress again that the point of legislation is to be fit for purpose and effective, not simply to exist. Nor should we be expected to revisit it within an unreasonably short period of time. I hope that the Government will give proper consideration to this issue, since I and many colleagues believe that the amendments are needed to ensure that the legislation protects victims, whatever the motive of the perpetrator. Legislation should be clear and consistent, and in the case of sexual offences it should be mindful of proportionality in the degree to which the onus is on the complainant to prove a motive for the defendant’s choice of action.

[The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)]

It is an honour and a privilege to serve under your chairmanship, Ms Buck.

I am grateful to the hon. Lady for providing an opportunity to discuss this important issue, and I appreciate the impact that this activity can have on the individuals affected. I am also grateful to my right hon. Friend the Member for Basingstoke; I know she spent much time considering the Bill, including giving up her time on Tuesday to give evidence to the Committee. I am grateful for the leadership she provides as Chair of the Women and Equalities Committee, and the powerful position she has taken on tackling ongoing challenges around sexual harassment.

The three amendments that were tabled by my right hon. Friend and have been moved today by the hon. Member for Dwyfor Meirionnydd would remove the element of purpose, so that upskirting is caught in all circumstances, save for when a defence is established. Those defences are outlined in amendment 1. We understand the objective of ensuring that the offences are wide enough to catch all those who should be criminalised for taking upskirting photographs, and we understand the hon. Lady’s motivation in moving the amendments. It is important to raise and consider these issues, and I am grateful for the opportunity to do so.

Before turning to the amendments, it might be helpful to explain why the Bill has been drafted as it has. The Bill seeks to rectify a gap in the law. That gap exists in relation to where the act takes place: it is possible to prosecute for upskirting in a private place or a public place, but possibly not in a place that is neither private nor public, such as a school. A school is not open to the general public, so it is not public, but it is open to many, so one could not expect privacy.

The Bill specifies two purposes for which an offence can be committed: to obtain sexual gratification or to humiliate, alarm or distress the victim. The reason these purposes are identified is not only that they are clear and appropriate, but that they use language that is familiar to criminal justice agencies. These motivations are used in current legislation. They are used, word for word, in Scotland. They are also familiar to the English system. That means that the Bill as drafted has precedent in law, and we know it will catch inappropriate wrongdoing.

I will deal with a few criticisms that have been made of the Bill’s breadth. It has been said that it will not catch all those who should be caught—for example journalists, as the hon. Lady mentioned—but if a person takes a photograph with the intention of uploading it to a website where others will look at it for sexual gratification, the uploader will be caught. It will not matter that the person who took the image is not obtaining sexual gratification themselves—for example, if they just want to get paid for the photograph. If they share it with another person with the intention that that person obtains sexual gratification, they will still be caught by the new offences.

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[Lucy Frazer]

I will deal with the hon. Lady’s point in a moment, after I have dealt with the one about proving sexual gratification.

Assistant Commissioner Hewitt acknowledged that sexual gratification already has to be proved under existing legislation—the Sexual Offences Act 2003—and that it is well understood by the police, prosecutors and the judiciary. He said that motivation can be assessed by interviewing the offender and through digital evidence, such as the website an image is uploaded to, and that it is then for the magistrate or the jury to decide whether there is a sexual purpose.

[Liz Saville Roberts]

rose—

[Stella Creasy]

rose—

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[Lucy Frazer]

Yes, my hon. Friend is right, and I am grateful to have his expertise in Committee as a criminal barrister who is used to prosecuting offences. There is no need to show a primary motivation; it just has to be a purpose, and there may be many purposes. Equally, that would apply to commercial gain.

[Liz Saville Roberts]

Does the Minister none the less share the concerns of the Director of Public Prosecutions about putting the onus on the prosecution? We are concerned about the effectiveness of this law because the complications implicit in having to tease out the different levels of motivation to find the one that we want, at a time when the police have limited resources and might not initially regard this as a serious crime, might just put too many hurdles in the way.

[Lucy Frazer]

People may have different views about that question. When activities are criminalised, it is right that the Crown Prosecution Service has the burden of proving the offence. We need to strike the right balance between victims and people who are accused of offences. Amendment 1 would reverse the burden of proof to the extent that it would rest on the defendant to show that they acted for a different purpose, and it is very limited, with only two reasons. It would put the burden of proving a defence on the defendant, but I see no issue with the fact that in our law it is for the CPS to prove its case and to prove that people should be criminalised for what is an extremely significant offence. It is wrong that people do this activity, but when they do it and they are criminalised for it, they will have a criminal record for a sex activity for which they could go to prison for two years.

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[Alex Chalk]

The hon. Lady is absolutely right. Ultimately, we are trying to prevent offending so that victims can get justice. One aspect of victims getting justice is ensuring that something is put on the statute book as quickly and efficiently as possible. The key evidence, if I may say so—the centre of effort that came from Gina Martin’s evidence—is that she wants to see this on the statute book. For it to mirror the situation in Scotland has an added advantage.

The second point, over and above the inconsistency, is about the sexual offenders register, which is critically important for this reason. If someone is put on the sexual offenders register, that is major deal, because if they act in breach of that they will go inside. It is absolutely right, by the way, that that happens. If somebody commits an offence such as this for a sexual motive, it is quite correct that they should go on the sexual offenders register. Indeed, the overall tenor of the evidence is that the Bill is right to draw a distinction between those who commit the offence to humiliate or degrade and those who commit it to achieve sexual gratification.

[Liz Saville Roberts]

rose—

[Alex Chalk]

I will give way to the hon. Lady in a moment.

Most people recognise that only people in the latter category should go on the register. Let us imagine for a second that this amendment were carried. The defendant would say, “I’m not guilty of this crime. I want to have a trial, please.” He would go before a judge and jury and say, “My phone was operating by accident. I didn’t mean to do it,” and the jury would say, “Pull the other one. Guilty.” At that point, who would decide whether that person went on the sexual offenders register or not? The jury would not have been able to give any kind of verdict on the individual’s purpose when he took the photo. In other words, the judge might sit there and say, “I’ve no idea. It wasn’t really relevant to the offence. Am I, the judge, going to make the decision about what his motivation was?” How does that serve justice?

[Liz Saville Roberts]

I question the hon. Gentleman’s statement that the overwhelming tenor of the evidence is in favour of what he is arguing. What has been presented to us, particularly since yesterday, is quite strong, especially if we look at what both the victims lead for the Association of Police and Crime Commissioners and the Director of Public Prosecutions have said. In response to the balance of power in sexual offences, Dame Vera Baird QC, Northumbria’s police and crime commissioner, said:

“We do not regard a specific motive as the important characteristic of this behaviour. More important is that this behaviour is done without the consent of the person being photographed. Its impact is that it is a violation of her/him in an intimate way and is thus more closely related to rape and sexual abuse than might at first be considered. It appears to be based on the concerning notion that women’s bodies are public property over which any one has a right to take advantage, for any motive, if they can find a way of doing so.”

[Alex Chalk]

I absolutely accept that the purpose of consideration in Committee is to drill down on such matters and see how they would work in practice. No one should misread my representation on this; of course victims come first—that is why we are here and why the Government have moved so quickly to get the Bill on to the statute book. We recognise that there is a socking great hole in the law that needs to be filled. The question is how that can be done as effectively, efficiently and fairly as possible. Apart from anything else, if the view is taken in due course that we did not think about that in Committee, the people who will be most upset about that are the victims, who will think it bad law.

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[The Chair]

If no one else wishes to speak, I call Liz Saville Roberts.

[Liz Saville Roberts]

Diolch yn fawr, Ms Buck. I shall seek the Committee’s leave to withdraw the amendment at this stage, but I will work with others to redraft and refine amendments, in discussion with Members in the other place, with the intention of tabling them on Report.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Liz Saville Roberts]

I beg to move amendment 4, in clause 1, page 2, line 8, at end insert—

“(3A) It is an offence for a person (A) to disclose an image of another person (B) recorded during the commission of an offence under subsection (2) if the disclosure is made without B’s consent.

(3B) It is a defence for a person (A) charged with an offence under subsection (3A) to prove—

(a) that disclosure of the image was necessary for the purposes of preventing or detecting crime, or

(b) that A did not disclose the image with the intent of disclosing an image of another person’s genitals, buttocks or underwear.”

Again, amendment 4 was tabled by the right hon. Member for Basingstoke and is supported by Members from every party. It seeks to ensure that the sharing or distribution of upskirting images taken without the complainant’s consent is a criminal offence.

As we all know, the Bill is modelled on the equivalent Scottish legislation, which had to be supplemented, relatively soon after its introduction, by additional legislation to stop the distribution of images. That was necessary to make the original legislation effective. It therefore does not logically follow that the Government will bring forward part of what is necessary—measures to prevent sharing—to address this issue effectively.

As the right hon. Lady pointed out in evidence to the Committee, current legislation might stop the distribution of upskirting images, but only in cases where such images would cause distress. As we have already discussed, sharing an image on a group chat for the purpose of banter is not necessarily intended to cause distress, so it may well not be covered. The amendment would close that clear loophole.

Another potential loophole was raised by the Director of Public Prosecutions, who noted in her submission to the Committee that

“the Bill does not criminalise a person who is in possession of images which have been recorded”

without the consent of another person or people

“but where it cannot be shown that”

that individual was responsible for recording the images. For example, someone might have hundreds of such photographs on their computer or digital device or devices, but there might be no forensic evidence to reveal how they came to be taken. It should also be noted that there is no power of forfeiture over such images, so someone may have a really quite unpleasant collection but, unless those other pieces were in place, there would be nothing we could do about it. It could be claimed as a collection—a collection of women being distressed. We have not addressed that.

I also draw the Committee’s attention to the precedent set by existing law in relation to revenge porn. There may be an offence under section 33 of the Criminal Justice and Courts Act 2015 if it can be proved that the sharing of images was done with the direct intention of causing distress to the victim. As we know, that does not cover distribution motivated by finance, entertainment, amusement or indeed sexual gratification. That means that commonplace activities such as sharing among groups of friends are not covered. Once again, rather than acknowledging that distress is implicit in the objectification of women through this deliberately demeaning and humiliating act, we will place the onus on the complainant—the victim—and the prosecution to quantify distress.

Let me say in passing that I welcome the Law Commission’s ongoing review of online abuse. I took part in one of its consultations last night. On the basis of its recommendations, which are relevant to what we are discussing, I understand that the Department for Digital, Culture, Media and Sport intends to bring forward a White Paper on internet safety by the end of 2018. I look forward to the Minister’s response.

[Lucy Frazer]

I reiterate that the Government are introducing this Bill to protect victims. That is absolutely why we have sought to introduce this legislation swiftly.

The amendment seeks to create an additional offence of disclosing the upskirt image, where such an image is caught by the Bill. It would create two defences to this offence, which are the same as those created by the other amendments tabled by my right hon. Friend the Member for Basingstoke for the existing offences in the Bill.

I sympathise with the position of the hon. Member for Dwyfor Meirionnydd on forwarding and sharing upskirting images. I very much share the desire to ensure that victims are protected by the law from this distressing practice and to ensure that the law is sufficiently robust to address this issue. Upskirting is an inappropriate act that we all agree needs to be addressed.

The amendment raises an important question about the distribution of images, but this issue is not confined to upskirting. Sharing images and inappropriate material online is a significant issue; indeed, it is a wider problem than this specific offence.

As the hon. Lady mentioned, there is already good work under way across Government to consider these issues closely. As she said, DCMS has asked the Law Commission to look into the onward sharing of images as part of its review in relation to online abuse, and in May we published our response to the Green Paper on internet safety strategy.

Therefore, although the hon. Lady makes an important point, it seems both prudent and beneficial to be careful not to cut across the ongoing work. It would be better to wait until we know the outcome of these reviews so that we can consider them properly, in slower time, to decide what steps are necessary, if any, to take this matter forward. Tackling image sharing more widely is complex and requires detailed consideration and analysis.

[Liz Saville Roberts]

In that case, could the Minister indicate to me, given that there is now a sense of speed in moving forward with this piece of legislation, how she would incorporate anything that was recommended? Frankly, bearing in mind the experience in Scotland, we should be considering addressing this issue now, rather than holding back.

[Lucy Frazer]

The hon. Lady makes a good point. DCMS is looking at this issue. Its report will come forward in due course and then we will need to consider it—both its scope and whether there is anything else that needs to be considered. Sharing images is a wide issue and the Government are very aware that they need to consider new technologies, how they are affecting women and children, the issue of the distribution of images, and all the horrors, as well as benefits, that come with the internet.

We are concerned that using the Bill, which is moving at pace, to deal with this issue could result in unforeseen consequences. I will mention a few of those in the context of the amendment.

First, the amendment suggests that a person would be guilty if they received and shared an image even if they did not know that it had been taken without consent. Secondly, under the amendment, a person would also be liable if the image was passed on to them by email and they passed it on by email, social media or messenger app without opening it.

So, while we must of course consider carefully those who are victims, it is also important to point out that other laws and a number of other offences relate to this area, which will potentially catch perpetrators of this sort of crime. So, onward sharing is captured by the revenge porn offence, if it is done without consent and with the intention of causing distress to the victim.

There are also offences that might capture the distribution of such photos. The offence of improper use of a public electronic communications network is captured by section 127(1) of the Communications Act 2003, while section 1 of the Malicious Communications Act 1988 captures the sending of letters and other articles with intent to cause distress or anxiety. There are also harassment offences.

The sharing of images is not just a question for the criminal law; we also need to consider the responsibility of the platforms on which those images are shared. Victims need to know that such images will be taken down rapidly, and it is good to know that YouTube, Facebook and Twitter all have terms and conditions that state they will remove upskirting images when they identify them or are requested to do so by a user.

If someone takes an upskirt image and subsequently shares it, they will be fully punished for taking it, and any harm caused by the sharing of it would be taken into account in sentencing. The two-year maximum sentence for the new offence is a serious penalty that fully reflects the harm caused.

The offences in the Bill will tackle the taking of the photo. Existing offences already capture the misuse of communication networks, but, importantly, that issue is wider than the Bill can cover, and the Government are already looking at the broader issue of online abuse. In those circumstances, I urge that the amendment be withdrawn.

[Liz Saville Roberts]

Once again, I shall work with others to redraft and refine the amendment, in discussion with Members in the other place, with the intention of tabling it on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Stella Creasy]

I beg to move amendment 6, in clause 1, page 2, line 13, at end insert—

“(4A) Where a court is considering for the purposes of sentencing the seriousness of an offence under this section, and either or both of the facts in subsection (4B) are true, the court—

(a) must treat the fact mentioned in subsection (4B) as an aggravating factor (that is to say, a factor that increases the seriousness of an offence), and

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

(4B) The facts referred to in subsection (4A) are—

(a) if, at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim having (or being presumed to have) a particular sex characteristic, or

(b) if the offence is motivated (wholly or partly) by hostility towards persons of who share a particular sex characteristic based on them sharing that characteristic.

(4C) For the purposes of subsection (4B), ‘sex characteristic’ means the protected characteristic of sex in section 11 of the Equality Act 2010.”

This amendment ensures that if the crime is motivated by misogyny then that will be considered by a court as an aggravating factor when considering the seriousness of the crime for the purposes of sentencing.

Voyeurism (Offences) (No. 2) Bill (First sitting)

Liz Saville Roberts Excerpts

Tuesday 10th July 2018 Public Bill Committees

[Alex Chalk]

Thank you.

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

Q We have already touched, forgive me, on the issue of motivation, but I think this is going to be critical to our considerations in this Bill Committee. As the Bill stands, it will need to be proven that there is either a sexual motivation or harassment. Do you have any concerns that a defence for people accused of this offence might be that it was accidental, and that that remains a loophole that needs to be addressed?

Gina Martin: I have spent enough hours sitting in enough meetings with my lawyer, Ryan, to understand that that is not something that needs to be worried about massively. Again, I am not a lawyer. There are ways of dealing with it and understanding case by case what happened. It is not the top concern that that would be an issue. That is my understanding.

[Liz Saville Roberts]

Q My second question is that if the taking of the photo is then found to be a crime with whichever motivations are finally accepted, to what degree, from the victim’s point of view, does distribution constitute harassment? Will that cause distress, and should the act of distribution, therefore, be considered within the Bill?

Gina Martin: For me, it is really important that the Bill sets out the intent and the action. Distribution is obviously distressing. I work specifically in digital and social media—that is my job—and a lot of work and education need to be done there to address this. It is really important to me that the Bill looks carefully at stopping and deterring people from committing the act in the first place.

[Maria Caulfield (Lewes) (Con)]

Q We will hear evidence this afternoon that there should be stronger penalties for those who take images of under-18s. On the Women and Equalities Committee, we heard evidence during an inquiry about how prevalent this is for younger people, even at school age. What is your view on the impact that the Bill should have in protecting people under 18 who are caught up in this?

Gina Martin: I think the Bill sets out to protect everyone across England and Wales, regardless of their age. It is very broad and it protects everyone. I am sure that the right steps will be taken depending on age, the offence and the way in which people take the photos.

--- Later in debate ---

[Gillian Keegan (Chichester) (Con)]

Q I want to thank you specifically, because I had not heard of upskirting until you started this campaign. I think a lot of people in the country are much more aware of it now. Until I started reading this, I had not heard of down-blousing either. What is your view on down-blousing and including it in the Bill? Is it a similar offence and intrusion to upskirting? Is it as popular? Is it happening at festivals, as we speak?

Gina Martin: I have heard about it. My personal experience is that all of the hundreds and hundreds of stories that have come to me over the past year have been about upskirting. I have not received that many stories about down-blousing. I do not know why that is. Of course, I think it is horrible. I would like to see a million things sorted out and prosecuted against. This being an upskirting Bill, I have to focus on that issue, but thank you for raising it.

[Liz Saville Roberts]

Q Gina, thank you for coming before us today. I know what you have gone through.

I understand that you want to see something move as quickly as possible. There are concerns that legislation that is made in haste is not necessarily always effective. We have had examples of that in the past. Would you consider that it is important that we are as thorough as possible in taking evidence and in looking at ways of making this piece of legislation as robust as possible, with as few loopholes as possible?

Gina Martin: Yes, of course I would.

[Liz Saville Roberts]

Q Would the fact that it should be done in two months override the need for thoroughness?

Gina Martin: No, of course not.

[Helen Whately (Faversham and Mid Kent) (Con)]

Q I want to raise a couple of things. First, you said that you have been hearing from hundreds of women. Is it your impression that this is happening all the time on a daily basis and really is extensive? As Gillian said, many people had not even heard of this until your campaign, but it seems to have suddenly brought something into the open. Is it your impression that it is really quite common now?

Gina Martin: Yes, and a big part of that is because a lot of women do not know it has happened to them. It is incredibly secretive assault. A study done recently by a women’s magazine asked women to give their stories of it anonymously. The feedback it got was that up to 80% of women said that they felt harassed and upset, but a lot women said that people had seen it happen to them. People feel that this is something that happens to women—and men and children—extensively, but they do not know it has happened because it is very hard to see it. I was lucky that I saw the picture. That is why we have not spoken about it for so long, and it has been normalised and accepted in society for so long. This campaign has ignited a conversation, so of course people have flooded in, talking to me. I am the only one who has ever gone out and said loudly that it has happened, so I think they trust me, which is nice.

--- Later in debate ---

[Mary Robinson]

Q Thank you for that answer. You seem to be implying that there is more scope for expanding this list of offences.

Assistant Commissioner Hewitt: I just think that this is a specific issue that needs to be dealt with. I don’t know if I really want to get into that here. It is worth making the point that we collectively need to focus on a number of image-based sexual offences. People are committing offences in ways they never did before because of the universality of the technology. Legislation can never keep up with every change, but the technology that exists, and our ability to obtain digital forensic evidence and to check things in the way that we can around offending, takes us to a place where we need legislation that fits the nature of the criminality.

[Liz Saville Roberts]

Q Thank you Assistant Commissioner for the information so far. What interests me is that you raise the issue of the exponential growth in digital imagery offences, and you also touch on the growth of 8% to 9% of the sex offenders register. Obviously we have to keep a balance to take into account capacity, but nonetheless we should not be restricting what we legislate for. Growth should not be a motivation for us to cease legislating. How could you advise us to keep the appropriate balance? Looking at this growth in digital imagery crime and in the sex offenders register, the wider question is: what practices need to be changed, and what support do police forces need in order to enforce and bring evidence for successful prosecutions?

Assistant Commissioner Hewitt: There is no doubt that we have been wrestling for some time with a dilemma in exactly the way you describe. Developments in technology have enabled a whole range of offending that previously would still have taken place, but in a very restricted and challenging way.

Consider the issue of indecent images: previously it was difficult for somebody to access indecent images. They had to find their way into very specific websites and undertake a series of acts to get there and do what they did. Indecent imagery is now almost readily available in so many spaces, and this means that far more people are accessing it either deliberately or inadvertently. Equally, there is the technology we use to spot when particular computers are accessing that imagery. We are in a situation in which there is a real volume challenge for us. The legislation point needs to be clear at the outset that doing this is illegal, and in this instance we do not have clarity around the specific issue of upskirting, so we need legislation that clearly says that—in the circumstances described—“This is an illegal act”.

The question then is how we respond, and how the system deals with that illegal act. In the first instance it would require awareness, training and understanding to be shared between police forces so that all officers were aware of the new legislation—as we would do with any new piece of legislation—and so that they understand what their powers are and what needs to be done. Then you get into the use of discretion and how you apply the legislation, as you would under any circumstances. For example, where it involves a 15-year-old and a 15-year-old, we need to think and then apply the usual logical approach that would be applied to whichever outcome you were seeking. The system would need to be able to look at whether certain offences were suitable for a caution or some form of warning. We do not want to be dragging loads of young people into the criminal justice system unnecessarily. With image-based sexual offences, you always have that challenge of trying to understand the level of risk presented by the offender, whether it is the viewing of images or upskirting. Some offenders will do no more than take a photograph or view an image, but some may be contact offenders or be escalating in the nature of the offending, and our challenge is always to have systems and processes in place that allow us to try to identify what the risk level is. Even among those registered sex offenders I spoke about, there are clearly RSOs at the top end who are the highest risk RSOs for whom we have significant control mechanisms, and then others at the lower end, where there is a much lighter level of control.

What you wrap into that, as I said at the very beginning, is what we do in terms of publicity and getting the information out there, not just to the police but to the broader public, about what this legislation says, why it is being done and what it says about what we expect and do not expect. I think that will have a really positive impact. You then broaden that out to all the spaces where this offence might take place, for people to become more aware of it. Looking at the offences we have dealt with most, there are obviously quite a few on transport systems, but they are also in supermarkets, shops and places like that. There is an awareness thing that can go on, and then it really is about dealing proportionately with the offending.

All those things are challenges, but I do not think that any of them take us away from the fact that these acts are illegal—they should be very clearly and specifically illegal. Particularly in this instance, they are also incredible distressing and harmful to the victim, but we have to try to find an ability to operate proportionately, and that gets us into some difficult debates about the images online.

[Liz Saville Roberts]

Q You emphasised earlier the significance of harassment and distress suffered by the victim. How do we ensure that that is safeguarded as a primary issue and that there is not an inappropriate defence of accidental motivations, or alternative ones such as profit? How do we ensure that we safeguard the victim experience as the priority driver?

Assistant Commissioner Hewitt: It is partly about how the investigation is run. There may be circumstances in which someone could run an accidental defence, but it seems unlikely to me. Not only do you have the evidence that the individual provides you with from what is on their phone, but often, in many of the places where this is happening, you have evidence from internal CCTV—in a supermarket, on a train or wherever. The point for me is that we then ensure that we utilise the mechanisms we have, such as the victim impact statements, when we are prosecuting. The evidence from the victim and the impact on them can very clearly be presented in court. Frankly, even if someone did try to say that it was done accidentally, that would not change the distress caused to the person realising that someone had taken a photograph up their skirt. Whether they could successfully run a defence that said, “I accidentally did that”, would depend on the way in which we conducted our interviews and how the CPS carried out the prosecution.

[Andrew Jones (Harrogate and Knaresborough) (Con)]

Q Thank you, Assistant Commissioner, for your answers this morning. You mentioned the desire not to unnecessarily criminalise younger people. I am keen to close this legislative gap in a proportionate way, drawing a distinction between the stupid occasion and the repeated pervert. How do the police tackle the existing offences, such as sexting, for those who are under 18?

Assistant Commissioner Hewitt: You look at all the circumstances. When the figures are produced on other sexual offending, for example, there will often be a lot of criticism levelled at us about people who get cautioned. We will, on occasion, caution people for rape offences, but if your victim and your offender have mental health issues or a mental impairment, we will take decisions based on all the circumstances. You are looking at the circumstances of the victim and of the offender, and on that basis, you will make a judgment. If you have an adult offender and a child victim, that is clearly an aggravating factor, but you will also have mitigating factors, as I said. If you have two 15-year-olds or 14-year-olds, there are mitigating factors around that, but as you alluded to in your question, if it emerges that that 14-year-old offender has done it on numerous occasions, or there is a repeated pattern of behaviour, again, that would clearly be an aggravating factor.

We would then work with the Crown Prosecution Service to identify what the correct disposal and the correct charge would be—probably the charge would be the same—and whether we would dispose of it in a charge way or whether we would use some other form of control. It is difficult to come up with a clear line. It is about individual cases and looking at the circumstances, including the nature of the offence, the nature of the victim and the circumstances of the victim and the offender. When you work against those three areas, in the centre of those criteria or questions, you come up with what you think the most appropriate position is.

We are facing that a lot with people who are sharing images. If a teenager takes an image of another teenager, having possession of that is an offence. Once you pass that around, that is another offence. We have to constantly ask the question, proportionately, what is the right thing to do? Is that the ill-advised behaviour of a 15-year-old who needs to learn some lessons and change what they do, or are they someone who needs to end up in the criminal justice system? That is a constant balancing act, particularly when you bring juveniles into play. Equally, you could get someone who does it and who has a mental health condition. They may be a 30-year-old, but they may not have the capacity of a 30-year-old. Every case will have to be dealt with on its own merits.

Oral Answers to Questions

Liz Saville Roberts Excerpts

Tuesday 10th July 2018 Commons Chamber

[Rory Stewart]

I have met the Department for Digital, Culture, Media and Sport and we have looked at two areas. We have looked at devices that can be used within the prison walls. As my hon. Friend the Member for North Cornwall (Scott Mann) pointed out in his speech on Friday, and in his question today, there is much more that we can now do by working with the mobile telephone companies to identify the exact frequencies and strengths of transmissions, to locate the mobile phones, prevent their use and analyse the traffic data.

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

24. Diolch yn fawr iawn. I rise as co-chair of the justice unions parliamentary group. Management at HMP Berwyn has made much of the use of digital technology as part of its innovative regime, but in recent days, prison officers there have lost teeth through being head-butted, have been injured, pushed down stairs and had excrement and urine thrown over them. I am told that violence against staff goes effectively unpunished, with prisoners spending only a few hours in segregation. Senior management lost a vote of confidence by prison officers last week. Given the Secretary of State’s announcement today, what will the Minister do to safeguard prison officers at Wrexham?

[Rory Stewart]

This is a very serious point and a very serious challenge. I will be following up this allegation with the governor. The governor has generally done a very good job in Berwyn, and the report that the hon. Lady raises is very disturbing. We must be clear that we have to support our prison officers. We are doing that through supporting a private Member’s Bill to double the sentence for assaults, and investing in body-worn cameras and trials of PAVA spray. But unless we have decent safety regimes, it is almost impossible to do other forms of rehabilitation. We need to learn from the prisons that are doing best in reducing violence. I pay tribute, for example, to Wandsworth, which has made a lot of progress over the past 12 months.

Voyeurism (Offences) (No. 2) Bill

Liz Saville Roberts Excerpts

Second reading committee: House of Commons
Monday 2nd July 2018 General Committees

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

It is a pleasure to serve under your chairmanship, Ms Buck. I congratulate the campaigners, and also the hon. Member for Bath on her original Bill. I also thank the Government for introducing this Bill.

Back in 2016 I brought forward a ten-minute rule Bill that included measures such as those in the Bill, although it was unfortunately not possible to bring it through to a parliamentary conclusion. That ten-minute rule Bill drew attention to the complexity of the statutes that currently apply to sexual harassment, hate crime and digital technology, which inevitably results in inaction or inconsistency in the approach of the police and the courts. The Bill is a welcome step forward, but there is a need for a complete overhaul and review of sexual offences. I support the Bill moving forward on Second Reading.

A review of all non-consensual taking and sharing of private intimate sexual images, including threats and altered images, such as revenge porn and deepfake pornography, as well as further legislation to future-proof and modernise the law, would protect more victims in an age when the present legislation simply fails to reflect the prevalence of such offences, their impact on victims and the nature of technology and how it is moving ahead. The primary test for legislation is for it to be effective, so I will work with others to amend the Bill. I encourage colleagues who believe doing so might be beneficial to do the same. I believe that it can be strengthened if we consider motivation factors, notification requirements and the distribution of images.

First, the Bill would currently make upskirting an offence only when conducted for the purposes of sexual gratification or to humiliate, which requires further definition. As has been mentioned, the Bill does not criminalise upskirting for financial gain or where the motivation is to take images and to share them among a group of friends as a means of “group bonding”. Instead of focusing on the motivation of the perpetrator, the Bill focuses on whether the victim’s consent was received, regardless of the motivation. We know how much of an impact these offences have on victims.

Secondly, the Bill subjects the offender to notification requirements only if they committed the crime for sexual gratification and when certain age and sentencing requirements are met. That disregards the fact that taking an intimate photo of someone without his or her consent is, by nature, a sexual crime, so all offenders, whatever their motivation, should be subject to notification requirements if they meet the sentencing threshold. There might well be cause to look at the prosecution specifics, if necessary, to protect against the undue criminalisation of minors—that provision is present in other sexual offences legislation, if I understand correctly.

Finally, there is an absence of a specific provision covering the distribution of images, which means that the Bill fails to reflect the ubiquity of social media and the gravity of victims’ suffering. There could be a situation in which taking an image for the purposes of sexual gratification would be illegal under the Bill, but sharing it with exactly the same motive would not be a criminal offence in itself. The Bill should therefore include an additional offence of non-consensual sharing of intimate images.

I reiterate that I am pleased that the Bill will improves the law by making upskirting an offence, but I would beg that, at the same time as reflecting the urgency of what we are all trying to do, we ensure that the law is robust and effective and will stand the test of time.

Upskirting

Liz Saville Roberts Excerpts

Monday 18th June 2018 Commons Chamber

[Lucy Frazer]

My hon. Friend makes an important point. It is something that I would wish to see.

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

Upskirting is an example of digital technology and criminality moving faster than the law. Legislation to tackle the criminal misuse of digital technologies and services includes at least 30 statutes and measures. Does not the Minister agree that a review of the sheer complexity of the legislation on digital crime is urgently required?

[Lucy Frazer]

The hon. Lady points out that technology leads to more sexual acts being disseminated, and there are economic issues relating to digital technology. As I said earlier about the matters that fall within my portfolio, the Ministry of Justice is looking at this matter as it relates to sex and criminal offences, but I reiterate that the Bill deals with a specific issue that we think needs to be tackled and can be tackled immediately.

Oral Answers to Questions

Liz Saville Roberts Excerpts

Tuesday 5th June 2018 Commons Chamber

The Secretary of State was asked—

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

1. What assessment he has made of the potential merits of introducing a Prison Service parliamentary scheme.

[The Minister of State, Ministry of Justice (Rory Stewart)]

I pay tribute to the hon. Lady and, indeed, to my hon. Friend the Member for Sittingbourne and Sheppey (Gordon Henderson). The idea is for a parliamentary scheme focused on the Prison Service, along the lines of the parliamentary schemes for the police and the armed services. This is an exceptional opportunity to show the public, through their elected representatives, the extraordinary work that prison officers do day in, day out. It is a very tough and a very challenging job, so, inspired by the hon. Lady and my hon. Friend, we have asked the Department to develop a scheme of exactly the kind that they have proposed.

[Liz Saville Roberts]

I am delighted to hear the Minister’s response, as, I am sure, are the leaders of the Prison Officers Association who are with us in the Gallery today. I am sure he will agree that this must not be just a stage-managed public affairs exercise, and I ask him to commit himself to working with the POA on the design of the scheme.

[Rory Stewart]

That seems an excellent idea, and I am glad that the POA representatives are here today. As the hon. Lady—and any other Members who have visited a prison—will know, prisons are rarely stage-managed affairs, but we will work closely with the POA to ensure that the scheme reflects the experience of working prison officers.

Housing and Access to Legal Aid

Liz Saville Roberts Excerpts

Wednesday 16th May 2018 Westminster Hall

[Ruth Cadbury]

My hon. Friend is absolutely right. There are parts of the country with no appropriate legal advice services. For people in rural areas, having to travel tens of miles to find the appropriate advice, when they are already on a low income, is shocking.

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

I congratulate the hon. Lady on securing the debate. North-west Wales has only one provider of housing legal aid for a population of more than 300,000 people. Travel has already been mentioned, but we should also note that a single provider might not have the capacity to deal with the needs of all its potential clients, and may well have to put people on lists based on their needs. Some people who need urgent help might not be reached. Secondly, that single provider may also—[Interruption.]

[Mrs Anne Main (in the Chair)]

Order. The hon. Lady is not making a speech. There should be no first and secondly; there is one intervention.

Prison Officers: Working Conditions

Liz Saville Roberts Excerpts

Wednesday 2nd May 2018 Westminster Hall

[Gordon Henderson (Sittingbourne and Sheppey) (Con)]

I beg to move,

That this House has considered the working conditions of prison officers.

Before I begin, I should explain that I have three prisons in my constituency, and I have raised regularly in this House issues that concern people working in them. As I have done on many other occasions, I pay tribute to the fantastic men and women who work in Elmley, Standford Hill and Swaleside on the Isle of Sheppey. I am immensely proud of those dedicated, hard-working professionals, who work in an extremely challenging environment, facing the threat of violence almost daily with few complaints and a great deal of courage.

Violence is not the only issue that concerns prison staff—I intend to talk about numerous other issues later —but I will start by addressing it. Ministry of Justice figures show that violence in our prisons is at its highest level since records began. In the last quarter, there were 21,270 prisoner-on-prisoner assaults, of which 3,029 were serious. At the same time, there were 8,429 assaults on prison staff, of which 864 were serious. In one quarter alone, about 4,000 serious assaults took place. Given the nature of what constitutes a serious assault, I suspect many were carried out using some form of offensive weapon.

The Serious Crime Act 2015 made it an offence to be in possession in prison of an offensive weapon, so I would expect action to have been taken against those assailants. However, during 2015 and 2016, there were just 149 prosecutions, which hardly seems to be a deterrent to potential troublemakers. Such a low prosecution rate means that offenders know that if they attack a prison officer, they will probably get away with little more than a slapped wrist.

The lack of prosecutions against violent prisoners by the police and the Crown Prosecution Service has been a long-standing bugbear of mine. I have pointed out on a number of occasions—I make no apology for doing so again—that if a police officer is attacked while on duty, the full weight of the law rightly comes down on the attacker. However, if a prison officer is attacked while on duty, too often nothing happens. That cannot be right.

There are a number of reasons for the increase in violence, and I will touch on a few of them. There has been an increase in organised crime in prisons. I have heard stories of prisoners resorting to violence to avoid the risk of early release because their criminal activities in prison are so lucrative. There has also been an increase in the number of gangs in prisons: they are behind much of the organised crime, including the supply of drugs, which is big business.

The use of drugs in prisons is a huge problem, as I am sure we are all aware. A steady supply is smuggled in by visitors, corrupt prison staff and, increasingly, drones. My local prisons have introduced drone-exclusion zones, but they have no real means of enforcing the ban. The problem will be solved only by installing in every prison a system to detect, track and jam drones before they reach their destination.

Another concern is the increased incidence of prisoners smoking Spice and other harmful drugs in their cells. When prison officers enter the cell, they are at risk of harm from inhaling the lingering smoke. I know of a young prison officer in one of my prisons who was seriously affected by the inhalation of Spice fumes and had to be sent home because he was so ill. To counter that, gas masks should be made available to prison officers who enter cells in which it is suspected that an inmate has been smoking harmful substances, such as Spice. Stemming the flow of drugs is essential, and prison officers believe that the task of detecting drugs will be improved by the use of more sniffer dogs in prisons. I urge the Minister to consider that.

Drugs are not the only issue making the management of our prisons difficult. Mobile phones are also a big problem, as they are used to conduct much of the illicit business in prisons. People perhaps do not realise that mobile phones can be used to take photographs of prison officers, which can be sent to contacts outside the prison, who then intimidate them. The Prisons (Interference with Wireless Telegraphy) Act 2012 was supposed to help solve that problem by allowing phone signals to be blocked, but I understand that there have been difficulties implementing the Act. That is why I welcome the new Bill going through Parliament, with Government support, which will make it easier to prevent the use of mobile phones in prisons.

Combating prison violence can be problematic for a number of reasons, including the lack of control in some prisons. For instance, the Prison Officers Association alleges that prison managers sometimes fail to stick to the agreed regime management plans, which are put in place to set out work practices based on the number of officers available at any given time. The POA claims that some prison managers ignore RMPs because they fear the reaction of prisoners if they are not allowed out of their cells, even if there are not sufficient prison officers to supervise them. That leads to too many prisoners being unlocked without proper supervision. I should add that there is no evidence that that is happening in my three prisons.

That leads me nicely to another problem: the lack of prison officers. The Prison Service is in the process of recruiting more officers. Like the POA, I welcome that recruitment drive, but the influx of new recruits has presented its own challenges. Under benchmarking, the Prison Service lost thousands of experienced prison officers. They have been replaced with young, inexperienced officers, who are being asked to manage increasingly violent prisoners. We must do our bit by giving them the tools they need to do their job safety and effectively. One such tool is PAVA—pelargonic acid vanillylamide—which is similar to a pepper spray and is widely used in the police force. The Prison Service is piloting the PAVA in four prisons, and the results have been extremely positive.

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

I congratulate the hon. Gentleman on securing this debate. I rise as the co-chair of the justice unions parliamentary group. He made a comparison with police forces. I have taken part in the police service parliamentary scheme, which enables MPs to gain a fuller understanding of the nature of the work that we expect public servants, including prison officers, to do. Will the Minister consider establishing in prisons something along the lines of the police service parliamentary scheme so that Members of Parliament can go into that environment? I appreciate it is very dangerous, but we could none the less learn much from it and take away much that would be of benefit to our public servants.

[Gordon Henderson]

I welcome that intervention, and I will talk about that issue later in my speech.

I met my local police chief inspector, who happens to be a very small woman, and she said that, without PAVA, she would not be able to do her job on the beat. Between November 2017 and February 2018, HMP Bedford recorded 23 assaults on staff, of which two were classified as serious, whereas, HMP Preston, which has a larger prison population, recorded just eight assaults on staff, of which one was classified as serious. It cannot be a coincidence that, during that period, officers in Preston were issued with PAVA, but those in Bedford were not. The use of PAVA seems to be a no-brainer. I urge the Minister to roll out its use and issue PAVA to all prison officers in all prisons without delay. I would also like to see made available to prison officers rigid handcuffs, radios and body-worn video cameras.

The environment in our prisons gives rise to another big concern. Unlike police officers and firefighters, prison officers have to work until they are 66 years old. Over time, that will increase to 68.

Court Closures and Reform

Liz Saville Roberts Excerpts

Tuesday 27th March 2018 Westminster Hall

[Mr Tanmanjeet Singh Dhesi (Slough) (Lab)]

I beg to move,

That this House has considered court closures and reform.

It is a pleasure to serve under your chairmanship, Mr Gray. I am very pleased to have secured this debate on an extremely important topic that is long overdue for discussion.

The justice system is to undergo a radical programme of modernisation. The Minister will no doubt tell us about the potential for information and communications technology to deliver efficient and improved justice. However, against a backdrop of 40% cuts to the Department’s budget since 2010—the most of any Department—there is serious concern that this will be done without the proper safeguards to prevent our justice system from being undermined, and that it will therefore lead to reputational damage.

In January, the Government announced a consultation on the future estates strategy for the Courts and Tribunals Service, with a focus on ensuring access to justice. Separate to that are five consultations on proposals to close a further eight courts: the Banbury magistrates and county court and Maidenhead magistrates court, which will have a direct impact on my Slough constituents; the Cambridge magistrates court; the Chorley magistrates court and the Fleetwood magistrates court; Northallerton magistrates court; and Wandsworth county court and Blackfriars Crown court. Given how many courts the Government have closed in recent years—258 since 2010—there seems little doubt about what conclusion will be reached. Are the consultations not simply a smokescreen for yet more court closures and staff losses?

Capacity should not be the only criterion used to determine court closures. Geographical coverage and the representation of the justice system throughout our country are also important. As I will set out, there remain genuine concerns and a serious lack of detail to the Government’s plan to use technology in the court system, to reduce the court estate and to change the role of case officers. There could be no better response from the Minister today than an announcement that the Government are finally publishing the draft courts Bill. I hope she will give the date for that, as only then can the reforms be subjected to full scrutiny.

Thousands of court staff have been axed in recent years—more than 5,000 since 2010. That is an incredible number; however, the consultation is silent on the impact that further closures will have on staff. Indeed, they are merely called “other impacted groups”. On top of that substantial loss of expertise and experience, the closure of the eight courts would displace more than 130 staff. Does the Minister agree that court staff should be properly included in consultations?

Against this background of funding cuts, court closures and loss of staff and their expertise, outsourcing and temporary staff costs have rocketed. Figures obtained by the Opposition show the cost of the Government’s obsession with outsourcing, privatisation and the use of agency work. The Courts and Tribunals Service spent some £50 million last year on agency and contract staff—a tenfold rise since 2010.

The Government claim that these closures are part of a £1 billion modernisation of the courts service through better use of technology. Where is the evidence to justify the push for a digital courts programme? The Government should publish the business case for their modernisation programme so that the risks of a move to online and virtual justice can be fully examined.

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

I speak as the co-chair of the justice unions cross-party group. Does the hon. Gentleman share my fears that we have not yet had an effective evaluation of the impact of digital technology on justice and on whether court proceedings carry on? That should be done as a matter of urgency before the Government introduce yet further digital technology into the court system.

[Mr Dhesi]

I thank the hon. Lady for her pertinent point and fully concur, as I will elaborate.

Virtual courts may significantly increase the number of unrepresented defendants, discriminate against vulnerable defendants or those who do not speak English well, and negatively affect the relationship between defence lawyers and their clients. There are already concerns about video equipment that is in use, including technology failure, poor sound quality and mismatches of sound and image.

In my constituency, I have a large volume of immigration cases. Reports of video links between the Taylor House tribunal hearing centre and Gatwick detention centre breaking down are frequent, as are complaints about the poor sound quality. I am told that users must shout to be heard. That has been unresolved for many years. Likewise, there are concerns about the difficulty of holding confidential discussions where there is inadequate soundproofing. The Bar Council stated last month that

“virtual hearings diminish the ability of parties to follow proceedings and to understand each other. This inevitably will have serious consequences on the quality of justice as it is done and as it is seen to be done.”

Given the current situation, what plans are in place to guarantee that legal advice discussions between clients and lawyers remain confidential when held over video link? In the rush to digitalisation, where is the evidence, rather than the mere assumption, that there will be a reduced need for court buildings in the near future? After all, the Courts and Tribunals Service has recently confirmed that virtual hearings will not be imposed where participants do not wish it, so it is likely that physical hearings will be the norm for some time to come. Has that been a factor in any of the consultations?

I would also like to discuss travel times to court, which will be a significant issue if the courts estate shrinks further. Longer journeys will have a negative impact on the delivery of justice. As the Chair of the Select Committee on Justice, the hon. Member for Bromley and Chislehurst (Robert Neill), wrote recently to the Minister:

“No convincing policy justification has been offered for the current proposal, which appears to favour the principle of value for money over the principle of access to justice.”

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[Liz Saville Roberts]

I represent Dwyfor Meirionnydd. Dolgellau, the last magistrates court in my constituency, was closed in the last round. It is now impossible to arrive at either Aberystwyth or Caernarfon, the alternative courts, from Meirionnydd by 9.30 am. Does the hon. Gentleman agree that given the situation in rural constituencies, this discriminatory approach needs to be evaluated thoroughly before we move to further changes?

[Mr Dhesi]

The hon. Lady speaks with a great deal of experience. Indeed, while this will impact everybody in our country, the impact on rural communities will be disproportionately higher.

Does the Minister agree with the Chair of the Justice Committee’s remarks? Our constituents must not be discouraged from seeking justice, and witnesses must not be put off giving evidence. Is the Minister not concerned that court closures will make it less likely that victims and witnesses will travel to courts to give evidence? The equality analysis accompanying the consultations makes no mention of the indirectly discriminatory impact of lengthy round trips on elderly people or women, who are more likely to be caring for pre-school and/or school-age children.

There are relevant points of fact on travel time that consultations neglect to take into account. The consultations assume that a court user is on time if they are there at the time when the hearing is due to start, rather than in advance, when negotiations may take place or further instructions may be given. The Minister will be aware that in a public law children’s hearing, it is a requirement that all parties attend court an hour before the hearing. Will she ensure that such factors are considered when travel time is assessed?

What assessment has been made of access to justice if court users are required to pay for overnight accommodation, leave home in the early hours or return home late at night?

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[John Howell (Henley) (Con)]

It is a pleasure to serve under your chairmanship, Mr Gray. I am here because I am a member of the Justice Committee, which is meeting now. I have permission from the Chairman, my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), to attend and speak in the debate.

The hon. Member for Slough (Mr Dhesi) has raised an important point about access to justice. We ought to keep that concept firmly in mind. We in the Committee—certainly myself—are concerned for access to justice to remain a preferred concept throughout the process, and for it to permeate everything we think and do.

There is a need to maintain a network of well-maintained and fit-for-purpose courts. I understand what the hon. Gentleman has said but, unfortunately, some courthouses are not fit for purpose, and it is necessary to root them out, look at them and make changes to the way they function.

There are three other reasons why the court system is undergoing change and why it needs to be rigorously looked at. The first reason relates to Lord Justice Briggs’s work to set up the online courts, which are not yet set up in full. Lord Justice Briggs has made proposals to change the civil rules that govern how the courts work, which are being piloted in a three-stage process. It is an attractive system for running the courts, particularly for people who wish to avoid huge legal costs. The way in which the courts are being sorted out by that process is focused on the needs of individuals, because litigants in person are expected to be its clients.

[Liz Saville Roberts]

I listen with great interest to what the hon. Gentleman says, but does he share my concern that there are discrepancies in power between a person at a distant site contacting a court through video conferencing and a person in the court itself? We need to consider the impact of that on justice outcomes before moving ahead. As the process is at such an early stage, now is the time to do that.

[John Howell]

I will speak about aspects of the technology, but postpone answering that question for now, if I may. Having discussed online courts with Lord Justice Briggs, I am enthusiastic that they will come through in the fullness he wants.

The second reason for change is the need to improve technology. I recently did an Industry and Parliament Trust fellowship in law, where I sat with a number of judges in the High Court and the Court of Appeal for two and a half weeks. I sat with Mr Justice Knowles in a hearing in the commercial courts that was conducted entirely in Portuguese, because a Portuguese lawyer had brought the case and had elected for his case to be heard in English law. The level of sophistication of the technology had to be seen to be believed. Almost instantly after the appellant said something, the judge got a transcript in English on his laptop on his desk in front of him. That was an extremely efficient way of using technology. In the Court of Appeal, I saw for myself in a number of sentence referral cases that the court had been connected via video technology to the individual who was still in prison, in order to hear the case. I am absolutely convinced that that is a correct way to try to improve the technology.

In contrast, I experienced sitting with an employment tribunal where, as far as I was concerned, it was so antique that we might as well have been using the quill pen. Three judges were sitting. I coughed and spluttered when they said they would sit for seven days, but it was seven days because a litigant was appearing in person. Nothing was done that could not have been done on the first day—the other days were scheduled in order to ensure that more time could be given to the litigant if necessary.

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[Liz Saville Roberts]

I want to alert people to the need to be very careful about how we use different languages in the courts, with reference to the last round of court closures. The Ministry of Justice has a Welsh language scheme, part of which is a requirement to carry out an impact assessment of changes. I and others had to press for that impact assessment to be carried out. Welsh speakers have a right to use their language in court, but with technology and changes to courts, that is truly a matter of concern.

[John Howell]

I will stick to the point that I started making. From what I have seen of how the courts are using technology, it is going in the right direction. The courts are making full use of the technology—indeed, they are pushing the technology beyond how we would normally expect it to be used.

The third element is alternative dispute resolution—I say that as the chairman of the all-party parliamentary group on alternative dispute resolution. Alternative dispute resolution takes cases out of the ambit of the courts and puts them in the hands of arbitrators who are able to hear the cases and resolve them, and they should do so. During the time I sat with judges in the commercial courts, it was obvious—the judge said it on many occasions—that people should have gone to arbitration before they went to court.

The last time I spoke on this issue, I was asked whether we ought to consider compulsory arbitration. I was doubtful at the time, but as I have come to consider it more, I now believe that a form of compulsory arbitration would be a good thing and should be included within the arbitration rules. This process is not just about the arbitration, or the alternative part of dispute resolution. Bodies such as Network Rail try to solve disputes before they happen by putting in place the mechanisms to solve them.

I mention that because it is an important point about how courts are not being used as much as they were. Alternative dispute resolution is cheaper, quicker and gives much more immediate access to justice—we should not forget that access to justice is one of the key elements of the process. It takes nothing away from the courts: if the alternative dispute resolution fails, there is still recourse to the courts at the end of the process.

Through all of this, there is a need to ensure that we connect with the communities that we are serving. Doing that through existing buildings without exploring the use of town halls and other buildings within a community is not the right way of proceeding.