Policing and Crime Bill

Lord Faulks Excerpts

Committee: 5th sitting (Hansard): House of Lords
Wednesday 16th November 2016 Lords Chamber

[Baroness Grender (LD)]

My Lords, I support the amendments in this group. I am delighted to see the noble Lord, Lord Faulks, in his place, as the Minister who announced the changes in the legislation when some of us were campaigning to get it transformed. It was a very proud moment when he announced it—quite late in the evening, as I recall—and we had watching in the Gallery a whole row of ladies, plus one man, who had broken their anonymity and shared with us the appalling experiences that each of them had been through as a result of revenge porn.

I am very proud that, even with the limited amendments that we managed to get through to the Criminal Justice and Courts Act 2015, we are now as a nation a little further ahead than most others in trying to deal with a very difficult issue. But there are so many more who are not caught in the current legislation. While in 2015-16 we know that 206 individuals were prosecuted under the new law, a survey by “Good Morning Britain” revealed that police forces in England and Wales had dealt with a total of 2,130 cases. There is quite a difference between these numbers in terms of what is going forward to prosecution, and we have already heard what some of the difficulties in that area are likely to be.

It is also critical that we as parliamentarians stay ahead of the speed of change in attitudes and behaviour that smartphones and social media bring in their wake. In the US, a McAfee study revealed that 36% of people had sent or intended to send an intimate picture. As legislators, we have to understand that, whatever our attitude to and opinion of that, we need to create laws that foresee the way that society is changing. These amendments therefore necessarily go further and we must credit the Women’s Equality Party for its part in doing some of the drafting, which resulted in us trying to amend this in the other place.

I particularly want to address the issue of anonymity. When we ran this campaign a year ago, some women stepped forward and were prepared to be named when they recounted what they had gone through. But part of the problem was that many victims were too scared to put their names out there. This happened to one lady whom we dealt with—because her name was out there and she was campaigning against this, it ensured that she got far more coverage on some of the websites that she was deliberately trying to avoid. It has now been accepted in current legislation by this Government that victims of forced marriage are given that anonymity; I see this as being a very similar area.

I will conclude here. I think that we are aware that in this area there are issues of suicide, self-harm and damaged reputation. As we talk now there are hundreds, perhaps thousands, of young men and women who are sharing intimate images that, frankly, will have a devastating impact on their future. It is up to us, through some of these amendments, to be ahead of the law at every stage.

[Lord Faulks (Con)]

My Lords, I am most grateful to the noble Baroness, Lady Grender, for mentioning my small part in the acceptance of revenge porn as part of the list of criminal offences that the Government accepted ought to enter the calendar of criminal offences. The Government looked carefully at this and, in many ways, some of the conduct that was embraced within so-called revenge porn was probably covered by existing criminal offences. However, it was accepted that such was the need to identify specifically this sort of behaviour that it was appropriate to include it as part of the Criminal Justice and Courts Act 2015.

While I entirely accept what lies behind these amendments and the evil that they are directed against, I think that one has to bear in mind that we have had only a very short time for this legislation to bed down. I am glad that there have been prosecutions; it appears that there was a need and the prosecuting authorities have acted accordingly. But I am not sure that I am, at the moment, satisfied that there is a need to go further in terms of definition. For example, Amendment 217 talks about threats to disclose. The Minister will no doubt correct me, but all these areas are probably covered by existing criminal law—for example, blackmail, threatening behaviour, theft or other offences. A threat may be something substantial but it may be something very trivial and we do not want to have relatively trivial matters embraced in what is often a very serious offence.

As to Amendment 218, of course, on the face of it, it seems attractive that there should be some compensation. I am a little concerned, however, about a judge in a criminal case having to assess anxiety and the degree of anxiety in terms of the appropriate quantum of damages. How is he or she going to do that? Will there be evidence from somebody expressing how affected they were, and the degree of the affection—whether, for example, it caused them to go to a doctor? There is a slight danger that we could lose sight of what is really important—a criminal offence, rather than whether there should be compensation.

Quite apart from the questions of appeal raised by my noble friend Lord Hailsham, there is some work to be done on this. On the question of appeal, surely there would be an appeal from the magistrates’ court to the Crown Court as of right, and to the court of criminal appeal in appropriate, and possibly restrictive, circumstances. It may be that in due course there would be some informal tariff, perhaps involving the Sentencing Council—but I would not like it to be thought that the criminal prosecution of matters should be used as some proxy for obtaining compensation.

[Lord Rosser (Lab)]

My Lords, I will be brief. These amendments cover a serious and disturbing issue that has received considerable publicity in recent months. The purpose of the amendments, as I understand it, is to tighten and extend the reach and scope of the law in respect of disclosure of private sexual photographs and films without consent and with malicious intent. They include new clauses on compensation and anonymity for victims. At this stage we will listen with interest to the Government’s response, including the extent to which they consider that the law as it stands is sufficient—or, alternatively, needed—to deal with any or all of the issues addressed in the amendments.

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[Lord Faulks]

My Lords, we know that this is an issue on which it is very difficult to find a satisfactory compromise. I am also conscious of not taking drafting points which might serve to divert us from the central issue. However, I am a bit concerned about this proviso. I understand that it is a sensible idea to have one, so that a judge can be satisfied that it is in the public interest to remove the restriction in respect of a person. If that is to be meaningful, will the noble Lord, Lord Paddick, explain to the Committee in what circumstances he envisages an application being made and who will make it? How is the public interest going to be defined? Whose interest is the public interest? Reference was made to a case where there was corroborating or forensic evidence being circumstances in which a judge would be satisfied. However, many of these claims may concern young people who did not know they could complain. Many years have gone past; there is no forensic evidence. As far as they know, there may be no corroborating evidence. Are they to come within that exception? How is the judge to assess this? If this is to be a meaningful exception to change the law, we need to set out with some precision the sorts of factors that ought to be taken into account.

[Lord Beith (LD)]

My Lords, I have great respect for both my noble friend Lord Paddick and the noble Lord, Lord Pannick. On this occasion, it is with the former, rather than the latter, that I agree, although one takes on either of them with a measure of reluctance and trepidation. I was partly struck to say something in this debate when the noble Lord, Lord Pannick, asserted that to impose obstacles to convicting the guilty is a very high cost. We actually pay this cost throughout our criminal justice system. It would be a lot easier to convict some people that we and the police think are guilty if we did not have to prove that they actually are, to the satisfaction of a jury, or if various procedures, such as disclosure, did not have to operate—the prosecution must disclose any evidence it comes across that might support the innocence of the accused. Many of these things make it more difficult to convict people, but they are part of the protection for the innocent and uphold the principle that someone has to be proven to have committed an offence.

Much of the argument about whether the kind of prohibition which my noble friend has advanced—and I agree this should be done—revolves around whether people who have had similar experiences of the accused will come forward. There are several points at which, if this clause were in operation, they would still be able to do so: between charge and trial or between the various stages of a trial process, for example between committal and trial. I am not an expert in this, but it appears that in most of the cases where this has happened it has been at that stage, rather than at the stage of initial accusation, except perhaps in some of the most notorious cases, which have been referred to this afternoon, where injustice has been done by publicity.

As the noble Lord, Lord Faulks, correctly pointed out, the proviso has to be precisely worded. The point of the proviso is that anonymity might be broken if the police and prosecuting authority consider that they would like to go to trial and the evidence is not quite strong enough for them to do so but there is some knowledge that it is likely that people will come forward. A case where there is substantial evidence that does not quite meet the Crown Prosecution Service’s normal criteria, yet there is reason to believe that there may be others, might be just the circumstances in which an earlier breach of anonymity would be justified.

The weakest point put forward by the noble Lord, Lord Pannick, was the one about gossip and speculation. The whole process is attended by the risk of these. If the name of an accused person cannot be disclosed prior to charge, there may be those who seek to gossip about it. That is something we should try to deal with in whatever way we can. But of course the same applies to the anonymity of the victim. Most of us have read newspaper stories which speculate and hint at who the victim might be in such a case. We cannot use that as a reason not to afford protection to the victim, and we should not use it as a reason not to afford protection to the accused at a stage in the process when it is unreasonable to visit a punishment more severe than applies in many other criminal offences, arising out of the publicity and shame and loss of office and other consequences that have attended some of the cases that we have heard about.

The noble Lord, Lord Pannick, produced several convincing examples of drafting that might be improved in this Bill, but that is what it was—the principle needs to be addressed, and it is not adequately satisfied by guidelines. Even though the better the guidelines the better the situation, guidelines fall short of the value of a firm principle enshrined in law, which the criminal justice system can itself uphold.

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[Lord Paddick]

My Lords, I am very grateful to the Minister and to all noble Lords who have participated in this debate. I am particularly grateful to the noble Lord, Lord Campbell-Savours, for supporting this amendment.

I have to make it clear to the noble Earl, Lord Attlee, that this amendment is not an attack on the Metropolitan Police. It operates in what some might find a very strange way but there are reasons the commissioner is distanced from the operational decisions made by his officers, although I will not go into them now. The police have always had the problem that when things go wrong they are held back from apologising by their own lawyers, for reasons which will be apparent to the lawyers in the Chamber.

On what the noble Lord, Lord Pannick, said, I agree with my noble friends that these are drafting issues. I said that the reason for this amendment was to allow a debate. The wording is actually a copy and paste of the protections provided to the victims of sexual offences; no doubt many of the noble Lord’s criticisms could therefore be directed at the current legislation. I will not go over what he said as criticisms have been made by other noble Lords and I do not want to carry on in that vein.

I am grateful to the noble Viscount, Lord Hailsham, for saying that, in principle, he felt this was correct. It is interesting that he said that the unauthorised disclosure of information by police officers should be addressed, particularly in light of the fact that the Government want to put a stop to part two of the Leveson inquiry, which is supposed to look at the relationship between the police and the press. The Government seem determined not to allow it to go ahead so maybe we should sidestep it and include this issue in the amendment, which we will no doubt return to on Report.

In response to the noble Lord, Lord Faulks, I gave an exact example of an exceptional circumstance where such an exemption might take place and I do not want to detain the Committee by repeating it. However, perhaps “in the interests of justice” might be a better phrase to use than “in the public interest”.

[Lord Faulks]

I am grateful to the noble Lord for giving way. Perhaps he could help the Committee with this: the amendment would change the moment when anonymity is lost from arrest to charge. As the decision an officer takes about whether to charge is a very difficult one, does the noble Lord not think that there might be a temptation on the part of the police to charge rather earlier than they should—or at all—because then anonymity would be lost and they might be able to get more evidence? That would be a distortion of proper police practice.

[Lord Paddick]

I am quite surprised that that argument is being put forward. The noble Lord will know that in serious cases such as sexual offences the police cannot charge on their own account but have to have the agreement of the Crown Prosecution Service. I am sure that the noble Lord is not suggesting that the Crown Prosecution Service would be tempted to charge somebody in the absence of available evidence—the police would argue that the contrary is the case.

I take my life in my hands in addressing the comments of the noble and learned Lord, Lord Judge. In answer to his question, yes, it is important, and my noble friend Lord Marks has come up with the solution of including in the amendment the proposal that the identity of the accused should not be put into the public domain without his consent. That would cover the example that the noble and learned Lord gave of alibi witnesses being sought.

We are not saying that sexual offences are more serious than murder or terrorism. We are saying that there are many sexual offences and that particularly when it comes to historic offences there are questions of consent—perhaps—or there is no evidence at all and it is one person’s word against the other. That is not the case with murder or terrorism. Even when there is conspiracy to commit a terrorist act, evidence is gathered, whether, for example, from emails or through security services bugging rooms in which these people are operating. For those offences, there is some tangible evidence and that is what makes sexual offences different in a real sense. That is not to say that they are more serious—they might be so in terms of the reputational damage done to the individuals concerned but not in terms of the offence.

As a police officer who exercised the power of arrest on hundreds of occasions, I am not as confident that the level of reasonable cause to suspect that leads the police to arrest somebody is as high as the noble and learned Lord suggested. Yes, liberty is taken away, and somebody should not be deprived of their liberty without anybody knowing about it. However, if we put it into the amendment that the identity of the person should not be released without their consent, that issue would be addressed. Presumably it could also be given by the lawyer in particular circumstances.

I am very interested in what the noble Lord, Lord Lexden, said about the presumption of innocence and what he referred to as a cultural shift away from it. Everybody agrees that the presumption of innocence is at the heart of our criminal justice system, but, in practice, it is not being reflected in the minds of the public or the editors of certain newspapers. We have to deal with that reality and not some theoretical construct, and regrettably that is where we are going as far as the presumption of innocence is concerned in the minds of many members of the public.

The noble Lord, Lord Rosser, cited Stuart Hall as an example of a case in which more people came forward as a result of an arrest, but Stuart Hall was arrested and charged on the same day. In the case of Jimmy Savile, people did come forward to the police and were not believed; that was not because he was given anonymity but because there was something fundamentally wrong with the culture of the police at the time and they did not believe vulnerable victims. That is the issue that needs to be addressed.

We also have to ask ourselves about publicising cases which inevitably collapse. What impact does that have on victims of sexual offences who may be afraid that their genuine concerns will also result in a collapsed case? That is no doubt what is happening at the moment with the man who made these allegations and is known only as Nick. I am sure there are tabloid newspapers trying to identify that individual in order to give him negative publicity.

In response to the Minister, this is a difficult and sensitive issue. It is a question of balance and we have heard from noble Lords who have spoken in the debate that the majority feel that it is not right at the present time. The noble Baroness said that legislation is not the way forward at this time, but times have changed, as the noble Lord, Lord Lexden, said. People’s attitude towards those accused of sexual offences has changed so we need to look at this again, which is why I have brought forward the amendment and why we are having this discussion.

As I said in my opening remarks, everything needs to be done to encourage any victim of a sexual offence to come forward and report it to the police. Systems need to be in place within policing so that if allegations are made in different parts of the country against a long-distance lorry driver, for example, they are then matched up in order to reinforce the situation. But in saying that the College of Policing is doing a review when guidance is already in place which says that the presumption should be against identifying the accused, how on earth does that square, for example, with the way Sir Cliff Richard was treated by South Yorkshire Police? How does that follow College of Policing guidance, and how is a review of that guidance going to change police practice in the future?

On guidance to editors or the code of practice for the press, I have to question whether the noble Baroness reads the press and the attitude taken by its members and how a coach and horses is driven through the guidance to editors on an almost daily basis. This is why guidance is proven not to work. In marginal cases there may be some loss in terms of people not coming forward after someone has been arrested if no publicity is given, but people come forward predominantly when someone is charged and there is some certainty that a court case will happen, not at the point of arrest. That is why we will return to this on Report, but at this stage I beg leave to withdraw the amendment.