Police, Crime, Sentencing and Courts Bill

Lord Falconer of Thoroton Excerpts

Lords Hansard - part two & Committee stage
Monday 22nd November 2021 Lords Chamber

Moved by

[Lord Falconer of Thoroton]

284: After Clause 170, insert the following new Clause—
“Harassment in a public place
(1) A person must not engage in any conduct in a public place— (a) which amounts to harassment of another, and(b) which he or she knows or ought to know amounts to harassment of the other.(2) For the purposes of this section, the person whose conduct is in question ought to know that it amounts to harassment of another if a reasonable person would think the conduct amounted to harassment of the other.(3) For the purposes of this section—“conduct” includes speech;“harassment” of a person includes causing the person alarm or distress.(4) Subsection (1) does not apply to conduct if the person can show—(a) that it was for the purpose of preventing or detecting crime,(b) that it was under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or(c) that in the particular circumstances it was reasonable.(5) A person who engages in any conduct in breach of subsection (1) is guilty of an offence.(6) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.”Member’s explanatory statement
This would create a specific offence of street harassment.

[Lord Falconer of Thoroton (Lab)]

These important amendments deal with the attempts to make this Bill a reset as far as violence against women and girls is concerned. They create a number of new offences and indicate that there should be reviews in certain areas in relation to harassment and other related things. I will go through each one in turn.

Amendment 284, in my name, would create a specific offence of street harassment. It is not limited to sexual harassment because the experience of men and women on the street is not restricted to sexual harassment. In July 2021, the Home Secretary indicated that she was thinking of introducing a crime of sexual harassment. There are a whole range of studies about the effect, particularly on women, of harassment in the street. A United Nations study, not restricted to the United Kingdom, said that 70% of women had been affected by street harassment, 4% said that it was worth complaining about it and 45% said that it was not. The sort of harassment that one has in mind in relation to this offence is wolf-whistling, people being called out to, people being the victim of people treating them with a total lack of respect in a way that might cause alarm or distress. As I say, it is not restricted to women; other groups are affected as well. Members of the LGBTQ community speak of harassment that they suffer in particular places. It would be wrong to restrict the terms of this offence to a particular type of harassment or a particular group of people, but this proposed new clause makes it an offence to subject somebody to what a reasonable person would regard as harassment, and harassment includes causing that person alarm or distress.

I very much hope that the Government will take up the opportunity that the Home Secretary herself indicated was worth taking up. That would indicate that the sorts of behaviour that in many cases occur throughout the length and breadth of the country would no longer be acceptable, and if people behave better and do not commit acts of harassment, that will have an affect right up the scale. In terms of the drafting, the proposed new clause sets it out very clearly, but we are open to any suggestions about how it may be drafted better.

Amendment 285 makes it an offence to kerb-crawl. We define it as

“an offence for a person, from a motor vehicle while it is in a street or public place … to engage in conduct which amounts to harassment in such manner or in such circumstances as to be likely to cause annoyance, alarm, distress or nuisance to any other person.”

That seeks to deal with people in their cars winding down their windows and shouting, barracking and making life difficult, often with a sexual undertone or more than an undertone. Again, that should be a crime, and something that we very much hope that the Government will treat as a serious matter. We hope that they will take up the suggestion that has been made. Again, if there are better ways of drafting it, we are more than open to hearing them, but Amendment 285 provides the basis for such a crime.

Amendments 292A and 292B are about sex for rent, which should be a crime. This is where an individual offers accommodation at a reduced cost or free in exchange for sex. This arrangement can be either at the beginning of a tenancy or enforced during a tenancy, often when tenants are experiencing difficulties in finding somewhere to live or in paying the rent. Sex for rent arrangements force people, especially women, into the most vulnerable of situations, often in enclosed private spaces to which a perpetrator has constant and unrestricted access. This has been a matter of campaign for a considerable period, particularly from groups such as Generation Rent. Politicians from all parties have picked it up and investigative journalists have too.

This Bill provides an opportunity to do something about it. A 2016 Shelter survey found that 8% of women had been offered a sex-for-rent arrangement at some point in their lives. In 2018, YouGov and Shelter estimated that 250,000 women had been asked for sexual favours by their landlords in exchange for free or discounted accommodation at some point between 2013 and 2018. More recent research by Shelter, which regards this as a serious issue, suggested that 30,000 women in the United Kingdom were propositioned with such arrangements between the start of the pandemic in March 2020 and January 2021. It is not difficult to imagine that the question of how one affords accommodation became more and more difficult for certain people during the pandemic.

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[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I am grateful to the noble and learned Lord, Lord Falconer, for setting out these amendments, which call for new offences to tackle street harassment and so-called sex for rent, propose a review of the offences of exposure and administering a substance with intent, and seek to address cases which involve the so-called rough sex defence.

On Amendments 284 and 285, tabled by the noble and learned Lord, no one can doubt the gravity of the issue these amendments seek to address. Like the Committee, the House and the whole country, I was very shocked by the tragic events of September; first, Sabina Nessa and then the revelations about how the murderer of Sarah Everard had abused his position as a police officer to commit his awful crimes. While these are the most serious violent crimes which can happen to women, they form just one part of what Her Majesty’s Inspectorate of Constabulary referred to in its recent report as an epidemic of violence against women and girls.

What is so striking is how these crimes have galvanised so many women and girls across the country to talk about their experiences and their suffering. To many of us—although not, of course, to those who experience it—the sheer scale of the problem has been shocking. Many of the more than 180,000 responses which we received to the call for evidence on the Tackling Violence Against Women and Girls strategy addressed this issue, as did the report published by Plan International UK in September. Figures released by the Office for National Statistics in August about perceptions of personal safety and experiences of harassment were equally shocking. For example, two out of three women aged between 16 and 34 had experienced one form of harassment in the previous 12 months. Thankfully, those experiences are not of the same level of gravity as what happened to the women who I have just spoken about, but they are still deeply traumatic to their victims.

I assure noble Lords that tackling violence against women and girls is a huge priority for this Government. We published our new Tackling Violence Against Women and Girls strategy in July. As the Home Secretary wrote in her foreword, violence against women and girls is not inevitable, and

“This Strategy will help bring about real and lasting change.”


On the issue of sexual harassment in public places, it sets out a number of commitments. A national communications campaign will challenge this kind of behaviour and ensure victims know how and where to report it. To ensure police are confident about how to respond to public sexual harassment, the College of Policing will provide new guidance for officers; this work is already well advanced. To prevent the behaviour happening in the first place, we will work to deepen our understanding of who commits these crimes, why they do it and how this behaviour may escalate, including through our new funding on what works to tackle violence against women and girls.

The strategy confirmed that we will pilot a tool, StreetSafe, which will enable the public to anonymously report areas where they feel unsafe and identify what it was about the location that made them feel that way, so that police can use that information to improve community safety. The pilot launched in August. The strategy also confirmed that the Government are investing a further £25 million in the safer streets fund to enable local areas to put in place innovative crime prevention measures to ensure that women and girls feel safe in public spaces. The successful bids were announced in October. The strategy also confirmed that the Home Office would launch a £5 million safety of women at night fund focused on the prevention of violence against women and girls in public spaces at night. The successful bids were announced on 10 November, and our commitment to this issue cannot be in doubt.

However, there is rightly considerable interest in the legal position, including whether there should be a new law specifically targeted at this type of behaviour. I pay tribute to parliamentarians in both Houses for their campaigning on this issue and to the organisations Plan International UK and Our Streets Now—the latter, as the noble Baroness, Lady Kennedy of Cradley, said, set up by two sisters out of a determination that other women and girls should not suffer sexual harassment as they had.

As noble Lords will know from the tackling VAWG strategy, while there is not a specific offence of street harassment, there are a number of offences in place that capture that behaviour—I think it was the noble Lord, Lord Marks, who talked about behaviours—depending on the specific circumstances, including offences under the Protection from Harassment Act 1997, the Public Order Act 1986 and the Sexual Offences Act 2003. However, we are looking carefully at where there might be gaps in existing law and how a specific offence of public sexual harassment could address those. That work continues and is being informed by the results of the call for evidence and by our direct engagement with campaigners on this issue. We have not yet reached a position on it and I cannot commit to have done so ahead of Report; as the strategy notes, this is a complex area and it is important that we take time to ensure that any potential legislation is necessary, proportionate and reasonably defined.

On Amendments 292A and 292B, we can all agree that so-called sex for rent is an exploitative and abhorrent phenomenon that has no place in our society. That said, there are existing offences under the Sexual Offences Act 2003 that might be used to prosecute the practice, including the Section 52 offence of causing or inciting prostitution for gain and the Section 53 offence of controlling prostitution for gain. Both offences carry a maximum penalty of seven years’ imprisonment and can capture instances of “sex for rent”, dependent on the circumstances of the individual case. The Section 52 offence would apply when the identified victim had been caused or incited to engage in prostitution. In addition, the online safety Bill will also place duties on sites that host user-generated content, such as social media companies, to protect their users from illegal content. This would include posts that are committing the offence of inciting—

[Lord Falconer of Thoroton (Lab)]

I apologise for interrupting, but is it right that those existing sexual offences all require the victims in “sex for rent” cases to be characterised as engaging in prostitution?

[Baroness Williams of Trafford (Con)]

I was going to get on to that, because I had noted the noble and learned Lord’s point. There are two answers. The first is that anyone who makes the report to the police will benefit from the anonymity provisions in the Sexual Offences (Amendment) Act 1992. The second is that the Section 52 offence applies when an identified victim has been caused to engage in prostitution or incited to do so, whether or not the prostitution takes place. In other words, a victim does not have to identify as a prostitute for the Sections 52 and 53 offences to be used. I hope that partly answers his question, although he does not look entirely convinced.

[Lord Falconer of Thoroton (Lab)]

How can the Minister tell when I am wearing my mask?

[Baroness Williams of Trafford (Con)]

I can see the noble and learned Lord’s eyebrows.

In 2019, the Crown Prosecution Service amended its guidance Prostitution and Exploitation of Prostitution to include specific reference to the potential availability of charges under the Sections 52 and 53 offences where there is evidence to support the existence of “sex for rent” arrangements, and—as the noble and learned Lord, Lord Falconer, and the noble Baroness, Lady Kennedy of Cradley, pointed out—in January this year the CPS authorised the first charge for “sex for rent” allegations under Section 52.

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In conclusion, we agree with the sentiments behind these amendments. We need to ensure that the criminal justice system, and indeed wider society, responds effectively to these offences, but it is important that we create new offences only where there is a clear need to do so. As I said, we continue to explore whether further legislation is needed to tackle street harassment, and we continue to keep the law as it applies to so-called “sex for rent”, exposure, spiking and the so-called “rough sex defence” under review. On this basis, I hope that the noble and learned Lord, Lord Falconer, would be happy to withdraw his amendment.

[Lord Falconer of Thoroton (Lab)]

I am very much obliged to everybody who has taken part in this incredibly important debate. It is terribly unfortunate that this debate is happening at this particular time—I am very glad to see the Minister nodding. This is incredibly unfortunate when we are talking about violence against women and girls, which is the big issue in relation to this Bill. This is no attack on the Whips, but they asked prior to the dinner break that we get on as quickly as possible. It is an incredibly unfortunate way for this House to look at legislation such as this.

I thank the noble and learned Lord, Lord Hope, for his support for Amendment 284, which concerns street harassment. I take note of what he said in relation to Amendment 285 and the difference between the penalties. He was suggesting that there might be a way to amalgamate the two. That suggestion seems to be very well made, and I hope that when we come back with this on Report, we might try to follow it up. I was grateful to the noble Baroness, Lady Bennett, for her support in relation to all of the amendments.

I take note of what the noble Baroness, Lady Fox, said in respect of the review on spiking. One is in a bit of a dilemma: there is already some degree of anxiety in relation to spiking. I think that what she was saying was, “Do not have an immediate review because that increases the anxiety,” but if you do nothing about it, the anxiety continues. My own judgment would be that one should have the review.

Separately, the noble Baroness, Lady Fox, asked whether one should be worried if one is criminalising through harassment conduct including speech. I do not think that that criminalises free speech, because the sorts of speech that we would intend to criminalise under the harassment crime would be cajoling, offensive behaviour—not expressing an opinion but insulting people or demanding sex or other things of people in a wholly inappropriate way. I do not think that would give rise to the risk of an attack on free speech.

[Baroness Fox of Buckley (Non-Afl)]

I suppose it is following on from what the noble Lord, Lord Marks, pointed out, about the broadness of that amendment. Since 2016, I have been subjected to a “fair amount of verbal”, as they say, walking around the Westminster village, from people who did not approve of my Brexit views. It was not pleasant: it was not sexual, but it was particularly obnoxious and offensive; but I do not know whether that should be against the law. I might have a moral view of it, but I would not want them all to be arrested. I am saying that, while verbal harassment is unpleasant, there is a question as to whether it should be made criminal. I just do not want everyone being locked up for things they say, even if what they say causes distress.

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[Lord Falconer of Thoroton (Lab)]

I completely take the noble Baroness’s point. The law has been very, very aware of that. There is a difference between people saying to you on the street, “I very much disagree with your views on Brexit” and others saying, “Why are you such a stupid, awful” and then a series of expletives, and chasing you down the street, just abusing you. The law is capable of making distinction.

[Baroness Fox of Buckley (Non-Afl)]

It was the latter rather than the former, I have to say.

[Lord Falconer of Thoroton (Lab)]

Then there might be a point where that becomes harassment.

I found the speech of the noble Lord, Lord Marks of Henley-on-Thames, to be terrible. He sounded like a Government Minister in relation to this, thinking of excuses why not to do something about harassment, not just against women—against other people as well—but particularly against women. I was very struck by the fact that the Minister at least acknowledged that there is a real problem in relation to this. Her speech accepted that something had to be done about it, which that of the noble Lord, Lord Marks, did not.

There was a difference between the view of the noble and learned Lord, Lord Hope of Craighead, which was broadly to accept the proposals that I am making in Amendment 284, and that of the noble Lord, Lord Marks, who raised two particular points in relation to street harassment. One was about the breadth of the offence, which is not limited to sexual matters. I do not think it should be limited to sexual matters. If somebody who is disabled is chased down the street by a group of people taunting them for being disabled, that should be harassment. The second point the noble Lord was worrying about was “ought to know”. The sort of conduct that we are seeking to criminalise here is where people behave in a way that is wholly unacceptable. If you say, “I did not know that it was criminal to wolf-whistle and chase somebody down the street,” the fact that you did not know that should not be any defence. Those were the only two points he made in relation to it.

[Lord Marks of Henley-on-Thames (LD)]

I am grateful to the noble and learned Lord for giving way and I am sorry that he found my speech terrible. I think he missed the point. I am not suggesting that there should be no criminalisation of the sexual offences. It may well be that the behaviour about disability that he mentions is already criminal. The point I am making is that you have to be very careful to delineate offences so that they are criminalising only conduct that ought to be criminal.

The noble Baroness, Lady Fox of Buckley, with whom I do not always agree, made the distinction very well. In my understanding of the Minister’s speech, she and I were on exactly the same page. We both believe that violence against women and girls has to be treated extremely seriously. We both believe—and if I sound like a Government Minister, the noble and learned Lord knows that I am not and never have been one—that the Government have a responsibility to ensure that the ambit of the criminal law is kept within the ambit of the law that people can trust and have confidence in. They cannot do that if you randomly criminalise behaviour that ought to be without the criminal law.

[Lord Falconer of Thoroton (Lab)]

I do not know where to start in relation to that intervention. I agree with the noble Lord that we need a clear delineation. We need to come forward with something. We have come forward with something that, interestingly enough, the former Lord President of the Court of Session in Scotland found completely acceptable but the noble Lord, Lord Marks, does not, for the two reasons that he has given that seem to me to be ill founded. We need to make progress in relation to it. We are not going to have an opportunity to do it. What I take the noble Lord, Lord Marks, as saying is that he will co-operate with us in trying to delineate an offence for the purposes of this Bill because something needs to be done now.

[Lord Marks of Henley-on-Thames (LD)]

The noble and learned Lord invites a response. I can certainly say that we will co-operate with that and I completely agree with him that the degree to which we are forced to rush this legislation inhibits progress on the kinds of proposals he is making. The difficulty is that one has to look at these offences in detail.

The noble and learned Lord suggested—rather unfairly, I think—that the two points I made against the street harassment offence he was particularly concerned with were the only two points I had. I made it absolutely clear in my speech that these were just examples. I agree with the Minister that you have to look very carefully at the whole area of new offences. That is why the reviews are important in relation to the spiking and exposure offences. You simply cannot legislate in a hurry to create new offences, as his amendment seeks to do.

[Lord Falconer of Thoroton (Lab)]

I have no idea whether that was a yes or a no to my question. I assume the two points the noble Lord made were his two best points and the other two were no better than that, so I do not know where the Liberal Democrats stand in relation to that now.

In relation to the sex-for-rent offence, various points were made about whether the case of the landlady who seduces the male tenant and then does not charge rent should be an offence. I am more than happy to work out whether there should be certain defences available. As the noble Baroness, Lady Kennedy of Cradley, made clear, it is something that urgently needs criminalisation—and criminalisation that does not require the victim to be either characterised as engaged in prostitution or incited to commit prostitution. The implication of the law, even if it gives the victim anonymity, is that by succumbing to the sex-for-rent proposal the person is forced to become engaged in prostitution. That is not the way the law should be. There should just be a straightforward criminalisation of it.

Of course, I am sure that the offence can be made better in terms of its drafting but it is a drafting issue, not an issue of substance between us. If we do not do it in this Bill, when will we do it? The point that the noble Baroness, Lady Kennedy of Cradley, makes is almost unanswerable: there has been one prosecution. I could not work out whether there is maybe another one coming, from what she said. That would make it two, over years, and it is wholly unacceptable that that is the position.