Criminal Justice and Courts Bill

Lord Faulks Excerpts

Monday 21st July 2014 Lords Chamber

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, Clause 25 would put in place a minimum custodial sentence of six months’ imprisonment for adults and a four-month detention and training order for 16 and 17 year-olds where an offender has committed a second or subsequent offence of possession of a knife or offensive weapon, unless there are particular circumstances that would make it unjust to do so. The clause also provides for a previous conviction of threatening with a knife or offensive weapon to count as a first strike.

Clause 25 was passed into the Bill in the other place and is now being considered by your Lordships’ Committee. The coalition Government are fully committed to ensuring that the public are protected. However, policy agreement has not been reached on this clause, and so it will be for the whole Committee to decide the issue. In these circumstances, noble Lords will understand why I am unable to answer many of the questions about the proper construction of the relevant clause, although I think I can simply draw the attention of those who have not had a chance to study it in detail to the fact that the initial offence has to be,

“without lawful authority or reasonable excuse”.

Then discretion is given with the words,

“unless the court is of the opinion that there are particular circumstances which … (a) relate to the offence or to the offender, and … (b) would make it unjust to do so in all the circumstances”.

The only other point that I make at this stage is that a number of noble Lords made the point that short sentences were not effective. I simply remind the Committee that only this year we passed an important Act which provided, for the first time, that those sentenced to less than 12 months would receive support in the community and support before leaving prison to assist in the resettlement process.

[Lord Foulkes of Cumnock]

I am completely confused as to who the Minister is speaking on behalf of. Is he speaking on behalf of the Government, the Conservative Party or the group of people who put the clause in the Bill? How are we therefore to treat his remarks? Is it to be a regular occurrence that we get Ministers coming to the Dispatch Box who are not speaking on behalf of this great coalition?

[Lord Faulks]

I hope it will not be a regular occurrence. I am endeavouring, in my short remarks, to assist the Committee as a whole on matters of construction but not to persuade it in one direction or another.

[Lord Richard]

Is the Minister speaking for the Government or is he merely putting this before the Committee, so to speak, as a debating issue, which we can all have a go at and then come to a conclusion on?

[Lord Faulks]

I am putting this before the Committee in circumstances in which, as I think the noble Lord well knows, a compromise has been reached.

[Lord Deben]

Does my noble friend agree that this is too important an issue for it to become a kind of joke measure for those who wish to make other party-political points? We ought to consider this seriously, in the way it ought to be considered, and make our own decisions according to the facts.

[Lord Faulks]

I agree with my noble friend that it should be considered seriously and a judgment exercised by the Committee as to what it thinks the appropriate response to this particular clause is.

[Lord Reid of Cardowan (Lab)]

I am grateful to the Minister. Whoever he is speaking on behalf of, he should regard me as a floating voter. I came in with my mind pretty well made up to support the clause, whoever’s it is—I was going to say it was the Government’s. However, I had the misfortune to sit next to my noble and learned friend Lady Scotland, who gave me an enlightened commentary to supplement everything that was being said and tried, as she did when she was my Minister in the Home Office, to soften my hard heart on this issue.

Subject to the response to one question asked by my noble and learned friend, I am still inclined to vote with whatever entity is in favour of the clause. I hope the Minister can answer the question and help me decide. What consideration was given to outlining this in sentencing guidelines, without the need to put it in the Bill? I am not suggesting for a minute that judges always follow sentencing guidelines. Indeed, the Committee may be amused to learn that when we put forward sentencing guidelines to diminish hugely the number of four and six-month sentences when we were bringing in indeterminate sentences at the other end, judges proved very reluctant not to send people to jail. It was suggested to me by the Lord Chief Justice at a meeting of the Criminal Justice Board that I should write and remind them of that. When I did, I was massacred in public for suggesting that judges may not need to send people to jail. I understand that they do not have to follow guidelines, but I hope the Minister has had time to consult his notes and to let us know whether, before going to the mandatory statutory sentence, such a course of action was considered, as my noble and learned friend asked.

[Lord Faulks]

Before the noble Lord’s intervention, I was going to conclude by saying that this is not a clause that could ultimately find its way to the statute book. If the vote results in the Bill remaining in its current form, the Government will bring back amendments to make various alterations—not to the effect or the substance, but to the detail—and in particular to make sure that the provision is consistent with the sentencing framework as a whole. There are also various other technical amendments that will have to be made.

[Lord Reid of Cardowan]

I am not a lawyer or a civil servant draftsman. Does that mean that if this clause is agreed to, the Government will come back with guidelines, rather than putting it into the Bill? Is that my understanding, or have I got even more confused? Perhaps the Minister would explain.

[Lord Faulks]

It is not a question of guidelines; there are a number of particular defects in the clause. For example, it would be necessary to fix the period for appealing a minimum sentence if a previous conviction upon which the minimum sentence is based is overturned. The period should be fixed at 28 days to ensure consistency. Furthermore, it is not clear in the current draft that the Attorney-General would be able to make a reference on the basis of a court’s failure to impose a minimum sentence, and the usual practice in relation to early guilty pleas for minimum sentences is a reduction of up to 20%. As currently drafted, the court would not be able to apply any discount for an early guilty plea. It is also necessary to add equivalent offences under UK and EU member state service laws to relevant previous convictions.

[Baroness Kennedy of The Shaws (Lab)]

If the Government have so many reservations about this clause, surely their position should be to oppose it. The Government’s position at this stage should be to say that they think the Committee should look closely at this clause because they are not happy with it. Surely that should be the Government’s position.

[Lord Faulks]

The Committee is looking carefully at the clause. I have endeavoured to assist with various questions to indicate that certain technical amendments would have to be made, which would not alter the fundamental purpose behind the clause, but would nevertheless make it more satisfactory.

[Lord Deben]

Would it help the Government if we voted this clause down? They could then produce a clause that was satisfactory and would listen to what the Committee had said.

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[The Earl of Listowel]

My Lords, I apologise for prolonging this still further. Following the noble Lord, Lord Harris of Haringey, I was grateful to the Minister for his response but the concern about the criminalisation of young people in care is very serious. It is one of the two main agenda items for the new chair of the Youth Justice Board, the noble Lord, Lord McNally. He is very concerned particularly that so many young people from children’s homes enter the criminal justice system. It would be helpful as background to the Bill to have some warning as to what if any impact this clause, if accepted, would have on the number of young people from care coming into custody.

[Lord Faulks]

There were quite a number of interventions. I will endeavour, very briefly, to say what I can within the terms that I speak today. On the question of sentencing guidelines, they are of course changed from time to time. It is a matter for the House to consider whether sentencing guidelines are an appropriate way to deal with this or whether it is more appropriate to use the clause as it currently appears in the Bill—whether that is called sending out a message, providing a deterrent or whatever construction one places upon that particular clause.

As to all the other matters, there is no question of a Liberal Democrat plot. I readily concede that this is an unusual situation. However, I am simply not in a position to say more than I have in answer to the various questions raised, except to say this: the issue for the House is fairly before the House, as brought by my noble friend Lord Marks, and it is whether the clause currently in the Bill should stand part.

[Lord Marks of Henley-on-Thames]

My Lords, this has been an important debate. It has been a serious and sober debate. I agree with the noble and learned Baroness, Lady Scotland, on that point. It has also not been a political debate in the sense that noble Lords on all sides have spoken both ways. My understanding of the Government’s position is that the position of Conservative Ministers remains as it was in the House of Commons; they will not support the clause as it stands, as inserted by the Back-Bench amendment; nor will they oppose it.

However, the position is that everyone in this House is agreed that we cannot, do not and never will condone knife crime. We all share the aim of driving knife crime down. I listened carefully to the points made, particularly those made by my noble and learned friend Lord Mackay of Clashfern, the noble and learned Lord, Lord Hope, and the noble Lord, Lord Blair. All of them of course have enormous experience of the criminal justice system. Other noble and learned Lords, notably the noble and learned Lord, Lord Woolf, spoke the other way.

The points made against me and in favour of Clause 25 principally concern deterrents and sending a message. However, what has been entirely unclear is the notion that there is clear evidence that a message and deterrence are better sent by a mandatory provision in a statute than they could be by judges exercising their discretion—going on television if necessary, as the noble and learned Lord, Lord Hope, described; by action outside Parliament, as the noble Lord, Lord Purvis described; or by sentencing guidelines, as the noble and learned Baroness, Lady Scotland, suggested, supported by the noble Lord, Lord Carlile.

Sentencing guidelines are daily used and daily applied, but they do not remove judicial discretion to sentence appropriately, departing from the guidelines where that is the right and just thing to do. I do not believe that deterrence by a mandatory provision in a statute is proven to have any beneficial effect at all. I believe that a mandatory provision for minimum sentences in a statute, to be imposed where judges would not—when wishing to do justice—otherwise impose them, removes judicial discretion and inevitably does injustice in a number of cases. For those reasons we oppose this clause.

Your Lordships have also heard the extent to which the clause is defective. It is not supported by either of the parties of Government. It is not supported by many of great experience who have spoken from the opposition Benches. It is not supported by many of those who have spoken from the Cross Benches. The Motion will be that this clause stands part of the Bill. I urge noble Lords to oppose the Motion and vote not content. I wish to test the opinion of the House.

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[Lord Beecham (Lab)]

My Lords, after the late excitement, we come to the more mundane world of driving while disqualified.

Clause 26, which we do not oppose, deals with what might be described only as another Grayling gimmick: the imposition of a maximum 10-year sentence for causing death while driving when disqualified—not for causing death through dangerous or careless driving while disqualified but for causing death while driving when disqualified. It is a measure of the significance of the amendment that there were 13 convictions in the past year for the offence of causing death when driving while disqualified or without insurance or a licence. This was not really a major problem. What the Government failed to do was to consider the real problem of the number of members of the public who drive while disqualified whether or not they are involved in other road traffic offences, particularly offences which cause injury. It is that problem with which this amendment deals. The current situation is that the maximum sentence is six months’ imprisonment only.

The question of causing death while driving under disqualification, now to attract a 10-year sentence, stands oddly with a five-year maximum sentence for causing death by careless driving and a two-year sentence for causing death while driving without a licence. Some 7,000 people are convicted every year for driving while disqualified. In my submission and that of the Opposition the sentence of six months is clearly inadequate for that offence. The amendment therefore proposes that the offence should carry a maximum of two years’ imprisonment and be treated as either way: it could be tried in a magistrates’ court or a higher court if necessary. That seems an appropriate way of dealing with an offence of this kind and I hope that the Government will reflect on it and accept the suggestion, if not today then on Report. We must do something to discourage the prevalence of the serious offence of driving while disqualified. At the moment, particularly given the very substantial sentence imposed under Clause 26, that looks inadequate and needs to be remedied. I beg to move.

[Lord Faulks]

My Lords, this amendment, as the noble Lord, Lord Beecham, has explained, would make the current summary-only offence of driving while disqualified an either-way offence. That would mean that the offence, currently dealt with by magistrates, could also be tried by the Crown Court with a jury, and the Crown Court would have a maximum penalty of two years’ imprisonment available. I know that an identical amendment was tabled on Report in the other place, but let me explain what the Government propose to do in relation to driving offences.

This Bill already contains proposals, welcomed from all sides, to increase the maximum penalty for causing death by driving while disqualified to 10 years’ imprisonment and to create a new offence of causing serious injury while driving while disqualified with a maximum penalty of four years. That was a pressing issue which the Government wanted to address, and we have done so in this Bill.

I agree with the noble Lord, Lord Beecham, and the question of disqualified drivers generally is of concern to the Government and all in this House. We want to ensure that we are doing what we can to keep our roads safe. Those who are disqualified from driving should not be on the road, and those who flout the law should be dealt with appropriately by the courts. I stress that where a person decides to drive when they have been disqualified and their driving is also bad, the CPS has a range of other offences it can charge—for example, dangerous driving, which is already an either-way offence with a maximum penalty of two years’ imprisonment.

However, the Government are not ruling out doing exactly what the amendment seeks to achieve. We have already made it clear that we will carry out a wider review of the offences and penalties for driving offences over the coming months. We want to look at the sentencing framework for driving offences as a whole and to address the various concerns that I know many noble Lords and the public have about specific aspects of the law in this area.

I know that my right honourable friend Jeremy Wright has already made it clear that the review would look at the specific issue of driving while disqualified. We also want to look at the most effective ways of ensuring that repeat offenders are prevented from driving and do not pose a risk to the public in future.

Noble Lords will recognise that while we can make changes to specific offences where there is a pressing need to correct a gap in the law, as we have done with the causing death and serious injury offences, looking at the wider range of offences and the rationale for the entire sentencing framework needs careful consideration and should be done over a longer period.

I hope that my undertaking that the Government are looking at the driving while disqualified offence in the wider context of its relation to other offences and sanctions will reassure the noble Lord, and that he will feel able to withdraw this amendment.

[Lord Beecham]

I am grateful for the Minister’s indication. What he said underlines the legitimacy of the charge of gesture politics laid at the door of the Secretary of State, because he said that there is now to be an intensive review of the range of driving offences. It is absolutely right that that should be the case, but for an offence that was committed 13 times last year it was found necessary to amend the Bill in advance of the review to which the Minister referred. It is lamentable that Parliament, and this Bill in particular, should be used to make a mere gesture of that kind when the Government have already decided upon a proper, thorough review of these serious matters. Having said that, the assurance that the Minister has given satisfies me and the Opposition. I beg leave to withdraw the amendment.

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Moved by

[Lord Faulks]

36: After Clause 27, insert the following new Clause—
“Meeting a child following sexual grooming etc
(1) In section 15(1)(a) of the Sexual Offences Act 2003 (meeting a child following sexual grooming etc), for “on at least two occasions” substitute “on one or more occasions”.
(2) In a case in which person A met or communicated with person B only once before the event mentioned in section 15(1)(a)(i) to (iii) of the Sexual Offences Act 2003, an offence under that section is committed only if the meeting or communication took place after this section comes into force.”

[Lord Faulks]

My Lords, this Government, and I know this House, are committed to doing their utmost to protect children from the scourge of sexual abuse. There is unity across Parliament in that regard.

Amendment 36 amends the grooming offence at Section 15 of the Sexual Offences Act 2003. It has been prompted by the sterling work of the cross-party inquiry into the effectiveness of legislation for tackling child sexual exploitation and trafficking within the UK. The inquiry was supported by the children’s charity, Barnardo’s, and chaired by the honourable Member for Rotherham, Sarah Champion MP, and the Government are very grateful to everybody who contributed.

While the report concluded that the Sexual Offences Act 2003 is generally fit for purpose, it identified a small number of amendments which would improve enforcement of specific offences, including the offence of grooming. Under the current law, a person is guilty of grooming if he or she meets or communicates with a child on at least two occasions, and subsequently they meet or arrange to meet the child, or they or the child travel to meet the other. The defendant must intend, either during or after the meeting, to commit a sexual offence against the child. It is the part of the offence which specifies that there must be two initial contacts between offender and child which is now problematic and which this amendment seeks to address.

Sarah Champion sought to deal with this issue through the amendments she tabled in the other place. She withdrew those amendments after we committed to look closely at this issue. Having considered the evidence and her representations carefully, the Government are persuaded that change is now needed.

At the time of its creation, the original offence was designed to tackle a relatively new pattern of behaviour that we commonly thought of as grooming. The aim was to protect children who may be contacted by adults repeatedly over a period of time to build their trust with the intention of subjecting them to sexual abuse in future. However, with the development of new technology and better, faster and simpler forms of communication including chat rooms and social media sites, it is easier for offenders to make contact with their victims and build their trust relatively quickly. The inquiry heard evidence that contact sexual offending against a child can now occur following just one communication or meeting. For example, the Child Exploitation and Online Protection Centre, CEOP, reported in 2013 that online child sexual exploitation has shifted in its nature, with the time between initial contact and offending behaviour often extremely short and characterised by rapid escalation to threats and intimidation. It describes a “scattergun” approach taken by perpetrators, who target a large number of potential victims. Even if they are ignored by the vast majority of children whom they target, they focus their efforts on the small number who respond positively to their communications. These views were echoed in oral evidence given to the inquiry by the police.

This amendment will therefore amend the grooming offence so that the number of initial occasions on which the defendant must meet or communicate with the child in question is reduced from two to one. This will permit more effective intervention by the police in relation to individuals who could otherwise have been prosecuted only when a second contact had been established, and in certain cases might prevent the sexual contact element of the offence occurring. It will also bring the offence in England and Wales into closer line with the equivalent Scottish offence, which requires only one initial contact.

More widely, the amendment will support the work being undertaken across government to tackle the sexual exploitation of children. My honourable friend the Minister for Crime Prevention, Norman Baker MP, is leading the Sexual Violence against Children and Vulnerable People national group. This panel of experts was brought together by the Home Office to co-ordinate and implement the learning from recent inquiries into historical sexual abuse and current sexual exploitation cases and issues around sexual violence more widely. Amendment 88 updates the Long Title of the Bill to reflect this change. For those reasons, I beg to move.

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[Baroness Thornton (Lab)]

My Lords, we on these Benches welcome the amendment. I welcome it personally because I took part in the debates in 2003 on the Sexual Offences Act and argued this case on behalf of Barnardo’s, Action for Children, the NSPCC and ECPAT. All the voluntary organisations concerned with child safety had already realised that the law would increasingly not cover the issue of the threat to children through new media. I thank Barnardo’s for its excellent briefing on this, my honourable friend Sarah Champion for leading such an excellent review of the law and the Government for bringing forward the amendment.

[Lord Faulks]

I am grateful for those brief but welcome interventions by a number of noble Lords, not least of course the noble Baroness, Lady Thornton, whose own interests in this matter she correctly recorded. I am grateful for that short debate. That concludes the debate on this issue.

Amendment 36 agreed.

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[Lord Faulks]

My Lords, I am grateful for the concern shown by the noble Baroness, Lady Thornton, and other noble Lords over these important provisions, which criminalise the possession of extreme pornographic images depicting rape. I appreciate that the intention behind the amendments is to ensure that we capture the appropriate material.

I also thank the noble Baroness, Lady Thornton, for meeting me, just as she thanked me for meeting her, to discuss these amendments. I was not invited to attend the BBFC meeting. I gather that it was a pretty horrific event, but clearly it has influenced all those who attended and I am mindful of that when considering the amendments.

I assure the Committee that I am aware of the sensitivities involved when discussing the sort of images that we are targeting. These images are at the extreme end of the scale and are most disturbing. Alongside the images targeted, however, there are of course depictions that, while deeply distasteful, might not warrant the full intervention of the criminal law. It is a difficult area but we must ensure that our distaste at some of this material is balanced, rightly, against the legitimate personal sexual freedoms of consenting adults.

Before I address the amendments, I should like to provide some background to the law as it currently stands and our proposals for reform. First, I should make it absolutely clear that the extreme pornography offence is an offence of simple possession, not one of publication, dissemination or broadcast. That is already covered by the Obscene Publications Act 1959. Section 63 of the Criminal Justice and Immigration Act 2008 makes it an offence to possess some kinds of obscene images. Such images must be pornographic and must explicitly and realistically portray necrophilia, bestiality or violence that is life-threatening or likely to result in serious injury to the anus, breasts or genitals. Clause 28 amends that category of material to include depictions of non-consensual penetration.

The offence was created following a full public consultation. There was considerable concern among respondents, and during the passage of the legislation through the other place, that the offence could have an unwarranted impact on the private sexual behaviour and personal freedoms of fully consenting adults. The offence was deliberately drafted with those sensitivities in mind, and I believe we should bear those in mind here. The offence targets only the most extreme obscene material—for example, images depicting extreme sexual violence and serious physical harm. It was not designed to make it criminal merely to possess every obscene image, however distasteful, although, as I have mentioned, the dissemination of that material will be an offence.

Last year, the Government were contacted by a campaign led by Rape Crisis South London and other women’s groups to extend the existing boundaries of the extreme pornography offence to capture extreme images depicting rape in the same terms as the equivalent Scottish offence. The Government listened to those concerns and agreed to extend the offence.

Against that background, I now turn to consider the amendments in question. Amendment 36A would remove the requirement that images of non-consensual sexual penetration be,

“grossly offensive, disgusting or otherwise of an obscene character”,

in order to be regarded as extreme pornography. Those terms are already well known to prosecutors and courts alike. They were drafted deliberately into the offence, and included in our amendment to that original offence, to ensure that the extreme pornography offence does not criminalise the simple possession of the sorts of images that it would not be illegal to circulate or distribute. To remove this necessity would be inconsistent with other aspects of the criminal law and would result in a possession offence that is too broad.

For convenience, I shall deal with Amendments 36B and 36D together, as they have similar, although not identical, effects. Amendment 36B would replace the Government’s amendments to the extreme pornography offence, including the relevant defence, with a broad provision that would criminalise the portrayal of any sexual activity that involves real or apparent lack of consent or any form of physical restraint which prevents participants indicating a withdrawal of consent. This is very broad. It could have the effect of bringing into the terms of this targeted offence the possession of pornographic images that depict any form of non-consensual sexual activity.

In the light of the balance that this Government have sought to strike with this offence, we believe that such an extension to the offence would be going too far. It would, I believe, widen inappropriately its scope and could make too wide a range of sexual activity subject to serious criminal sanction.

Amendment 36D also seeks to extend the parameters of the existing offence but would retain the necessity that the material be “explicit and realistic”. However, it would still extend the parameters of the offence too far and could capture a wide spectrum of sexual contact.

Amendment 36C seeks to explore the issue raised both at Second Reading and in the other place about the ability of the offence to deal with simulated rape scenes. I assure your Lordships that our provisions as they stand are already capable of covering the depiction of real or simulated non-consensual penetration. Both the amendment and the existing offence cover any portrayal or depiction of the acts in question. While the requirement is that the portrayal is realistic, it does not have to be real. As the noble Baroness, Lady Howe, mentioned, we have clarified this point in the Explanatory Notes to the Bill in response to these concerns.

Amendment 36E seeks to widen the scope of the existing offence to cover depictions that appear to portray incest, underage sexual activity and scenes involving sexual threats, humiliation or abuse. The protection of the country’s children from sexual abuse is a government priority. We have a robust range of offences and sanctions to deal with this truly dreadful offending, and it is a credit to the efforts of this House that our legislation in this area is rightly respected across the world. It is of course right that we keep the law in this area under review to ensure that it is fully equipped to protect our children.

Images of children are not specifically excluded from our extension of the extreme pornography offence, but we already have offences to cover the possession of indecent photographs and films of children. These offences have suitably robust sentencing levels and much lower thresholds in respect of the content of the images than the extreme pornography offence.

Finally, Amendment 36F would add to our provisions a requirement that, when evaluating images for the purposes of the offence, contextual material of certain kinds is taken into account. I appreciate that this reflects the drafting approach taken in the equivalent legislation in Scotland. However, we do not believe that the amendment is necessary: the court is already entitled to take into account all relevant evidence in determining whether material meets, or indeed does not meet, the requirements of the extreme pornography offence. Prosecutors and the courts already take the “context” of images into account when considering the existing extreme pornography offence. I hope that provides some reassurance to the noble Baroness.

The extension of this offence is well structured to ensure that the images we wish to capture fall within its parameters. The extension is in the spirit of the original offence and balances the need to criminalise the most extreme and potentially harmful or damaging material with the need to protect the lawful sexual freedoms and rights of others. Given the sensitivities involved, that balance has not been easy to achieve but I believe that we have achieved it with this reasonable, proportionate and important provision.

For those reasons, while I entirely understand the concerns expressed, the Government do not feel able to support these amendments. I hope that, with those assurances, the noble Baroness will feel able to withdraw her amendment.

[Baroness Thornton]

I thank the Minister for his considered, if somewhat disappointing, response. The point of the Committee stage of this sort of legislation—the House of Lords is particularly good at this—is to test whether this kind of clause does its job. I appreciate that the Minister thinks it does but I have to say that some of us think that one or two things in this clause need some attention. I am not going to delay the House any further by repeating what they are. The Minister said that the Government thought they had the balance right all the way through. I think there are one or two things to do with context that suggest the Government may not have got the balance right. We do not want to find ourselves in five years’ time with either no prosecutions because we did not get the balance right or with people not being prosecuted because we did not look at the things that experts are telling us are loopholes. Obviously I am happy to withdraw the amendment at this stage—apart from anything else I do not think it and my other amendments are as competent as they should be, for which I apologise—but I fear that we will be returning to this at a later stage in the Bill. I beg leave to withdraw the amendment.

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[Baroness Thornton]

My Lords, this has been a very good and interesting debate. We on these Benches support the principle of bringing forward legislation, probably along the lines that my noble friend Lady Kennedy suggested. We do not think that either of these amendments get us to the point where we want to be, as I think those who tabled them would admit, but they take us along that road and I hope we will see something emerge that does get us there.

Images described as “revenge pornography” are indeed a form of harassment and abuse. They constitute stalking and are humiliating. However, as well as a specific offence, what is also needed is the strong political will to tackle the underlying culture that creates and legitimises sexual violence, abuse and harassment in all its forms. That requires not only a government commitment to headline-making legislative reform but to ensuring effective implementation of any new offence and bringing forward compulsory sex and relationship education in our schools. The noble Baroness, Lady Brinton, referred to what goes in our schools. It is not good enough that this is done by voluntary organisations; it should be part of our curriculum. For the protection of our children, it really needs to be mandatory in our schools.

We on these Benches have problems with both these amendments, for different reasons, some of which have already been mentioned. For example, the amendment in the names of the noble Baronesses, Lady Berridge and Lady Morris, says that to commit the offence, the defendant must distribute the images,

“with the intention that he or a third person will”,

gain “sexual gratification” from doing so. That provision is problematic. As it is framed, no offence will be committed if the defendant discloses the image with a view purely to humiliate and embarrass the person in it. The motivation behind revenge porn is not typically to distribute pornography but to humiliate, embarrass and harass the victim. We need legislation that emphasises that, not the pornography aspect.

Likewise, with the amendment in the name of the noble Lord, Lord Marks, and his colleagues, we do not see why the offence should be limited to the circumstances where the individual is identifiable. As noble Lords have said, the motivation for this offence is to harass and abuse victims, and the harm will be done whether or not he or she is identifiable to others. There is some work to be done and, because we will have a long summer break before Report, I hope that we have time to undertake it. We on these Benches would be very happy to help to do that.

[Lord Faulks]

My Lords, this has been a very useful debate indeed. I will deal with Amendments 37, 38, 39 and 40 together, as they are clearly designed to deal with broadly the same issue, albeit in slightly different ways. They all seek to create a new offence banning the uploading or publishing of material that has come to be known as “revenge porn”. First, I will say that I have great sympathy for the intention that lies behind these amendments, as I said at Second Reading. The posting or publication of intimate material is despicable and cowardly, and we must ensure that such behaviour is appropriately dealt with by the criminal law.

Revenge porn is a broad term used to describe a range of offending behaviour. Usually, it involves an individual, often an adult ex-partner, uploading on to the internet sexualised images of the victim to cause them distress. Although revenge porn does not always specifically involve content that would be regarded as obscene, there is no doubt that the online sharing of intimate images without the subject’s consent can cause great distress and upset to the victim. Some of these images are posted widely across the internet and are often extremely difficult to remove.