Voyeurism (Offences) (No. 2) Bill

Debate between Lord Faulks and Lord Brown of Eaton-under-Heywood

Committee: 1st sitting (Hansard): House of Lords
Monday 26th November 2018 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I, too, fully support the underlying objective of this legislation, and apologise for not having played a part in any of the earlier processes.

Reading these amendments today has given me pause for thought along the same lines as my noble and learned friend Lord Hope of Craighead. My noble friend Lord Pannick describes this as a manhole or loophole in the legislation that can be got round. However, the whole point, surely, of new subsection (2)(c) is to limit the application of this provision. You look for a purpose and then you define the purpose in new subsection (3). However, if you include within that any invasion of the privacy of B, frankly, you might as well strike out the whole requirement for a purpose. Whether, as my noble and learned friend Lord Hope said, this is to be regarded as a purpose at all, if you do what is set out in new paragraphs (a) and (b), inevitably you are invading the privacy of B. Therefore that makes it otiose to have any reference to a purpose at all; it is unlimited.

As for an unlimited provision, I am agnostic—or hesitant—as to whether that is a good idea, but it is no good persuading yourself that you are consistently with a purpose and then accommodating the amendment.

[Lord Faulks (Con)]

My Lords, I too apologise for not having been here at Second Reading, but I have had the opportunity of reading the short debate.

In Section 67 of the Sexual Offences Act 2003, there is a mens rea, as it were, simply for the purposes of obtaining sexual gratification. Unfortunately, one has to pose the question of why anyone is doing this at all—I think it used to be assumed that it must be for some form of rather strange sexual gratification—and this addition of “humiliating, alarming or distressing” is added to cover the possibility that there might be some other motive. Those words are familiar and often interpreted in one context or another in the criminal law, whereas I am unaware—I will be corrected if I am wrong—that the concept of invading privacy finds much resonance in the criminal law, although of course it is reflected in other aspects of our law, not least in Article 8 of the European convention.

The noble Lord, Lord Pannick, rightly said that we do not want anyone who should be capable of relying on a defence to have one in circumstances where it would be unattractive if they did, and he cited a particular instance of someone having a laugh. He then gave the game away by saying it would be unfortunate if they could say this despite the distress that might be caused to the individual who had been the victim of this. Whose laugh are we talking about? Presumably we are talking about misjudged humour on the part of the perpetrator, not the amusement of the victim of this invasion. I take the point made by the noble and learned Lord, Lord Brown, that if there is to be a purposes clause, it is sufficiently wide. I think a magistrate directing himself or herself with the addition of a clerk would have no difficulty in considering this; nor would a recorder have any difficulty in directing a jury to consider this, so that if somebody said in their defence, “I was only doing it for a laugh”, they simply would not be believed.

Civil Liability Bill [HL]

Debate between Lord Faulks and Lord Brown of Eaton-under-Heywood

Committee: 1st sitting (Hansard continued): House of Lords
Thursday 10th May 2018 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I understand that the clear purpose of Part 1 of the Bill is to discourage false claims for whiplash injuries in road traffic accidents. The proposed method, besides wisely insisting henceforth on medical reports, is essentially by substantially reducing the damages recoverable in such claims to, as the noble Lord, Lord Sharkey, has just explained in some detail, figures well below those that are suggested in the 14th edition of the Judicial College guidelines, based as they are on typical court awards for such injuries.

The real question raised here is whether it is right to create especially low awards and, if so, how much lower than the norm for this particular injury suffered in this particular way specifically because disproportionate numbers of this sort of claims are likely to be false, not least because it is highly subjective and very difficult to establish objectively the reliability of the complaints. These are essentially political questions. It may be addressing the next group of amendments to say that it would make no sense whatever to involve the judiciary in answering these political policy questions. We know what the courts regard as the appropriate levels; we have those from the Judicial College guidelines.

As to what the political answer is to the precise level of damages proposed and whether or not it should be on the face of the Bill, I am essentially agnostic—although if anything I would favour that it should be. What rather surprises me is that, as I understand it, none of the amendments to the Bill is designed to challenge the whole Part 1 approach, which inevitably involves discrimination against those genuinely claiming for whiplash injuries in this context. Is the problem, one may ask, despite a number of improvements in the overall legal landscape over recent years—and indeed, no doubt consequentially, some reduction in the level of these claims—really bad enough to justify that whole approach? That does not seem to be squarely addressed in any of the amendments.

That said, I would add that I am in broad agreement with the whole idea of tariffs for injuries, certainly for lesser injuries, and indeed even of reducing awards in respect of a number of these lesser injuries. When I used to practise in this area decades ago, I used to think even then that lesser injuries were altogether too generously compensated, certainly in comparison to the graver injuries, which were not. Tariffs promote certainty and predictability, although of course always at the cost of some flexibility. That very predictability and certainty cuts down the enormous expense, the worry, the concern, the delay and the hassle of litigating expensively—as it invariably is—in this field. Indeed, that is also the effect of raising the small claims tribunal limits. I therefore also tend to support that to some degree in respect of these lesser injuries.

Overall, one must recognise that this is par excellence a policy issue, and it is for the Crown to justify Part 1 in the way that I have indicated. Part 2 raises very different questions, and to that I give my total support.

[Lord Faulks (Con)]

The amendment tabled by the noble Lords, Lord Sharkey and Lord Marks, seems at least to question the underlying premise behind these reforms. I respectfully suggest that the Government have established the premise. The Minister set out the Government’s case, as it were, at Second Reading, and the statistics seem to lead ineluctably to the conclusion that there is widespread abuse of the whole whiplash claims system. The solution, though it is inevitably somewhat rough and ready, is that there should in effect be a reduction in what claimants might have been able to claim under the system that currently obtains, although that is in relation only to damages for pain, suffering and loss of amenity and excludes loss of earnings or any other consequential losses. It is a reduction but a fairly modest one and we are speaking of injuries at the lower end of the scale, although I do not downplay the discomfort that can follow from whiplash injuries. However, the purpose behind the reforms is surely, first, to provide certainty and, secondly, to make the awards reasonably modest so as to provide less of an incentive for those who would seek to make fraudulent claims. That, combined with the ban on medical officers, should fulfil what is, as the noble and learned Lord rightly says, essentially a policy decision.

In effect, the losers about whom we should be concerned are those genuine claimants, as opposed to the many who are not genuine, who I accept will get a lesser sum than they would otherwise have obtained. In the round, though, I suggest that this is a sensible policy decision. The House may have in mind that when these reforms were initially trailed by the then Chancellor of the Exchequer George Osborne—and it came from the Treasury rather than the Ministry of Justice—the suggestion was that there would be no damages at all for whiplash injuries. This is a modification of that change, and of course there is the right of the judges to have an uplift in circumstances that we may be exploring later. Still, I suggest that it would be a mistake to pass these matters back to the judges. The Judicial College guidelines are in fact an extrapolation from individual cases decided by judges. They then, as it were, create a form of certainty, although they are variable according to individual cases.

I think the Government have made a case. They have to grasp the nettle, and they have done so in this case.