Lord Marks of Henley-on-Thames
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Policing and Crime Bill
Lord Marks of Henley-on-Thames ExcerptsWednesday 16th November 2016
(8 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 55-V Fifth marshalled list for Committee (PDF, 129KB) - (14 Nov 2016)
“Meaning of “private” and “sexual”
(1) Section 35 of the Criminal Justice and Courts Act 2015 (meaning of “private” and “sexual”) is amended as follows.(2) In subsection (3)(a) after “exposed genitals” insert “, breasts, buttocks”.(3) Omit subsection (4).(4) Omit subsection (5).”
Lord Marks of Henley-on-Thames (LD)
My Lords, with the consent of my noble friends Lord Paddick, Lady Hamwee and Lady Grender, and at their request, I rise to move and speak to Amendments 216 to 219 in this group. It was intended that my name should be added to Amendments 216 to 219A, but there has been a disconnect between intention and implementation, for which I apologise. Nevertheless, I support these amendments.
No one now disputes the need for the law to outlaw revenge porn. Disclosing private sexual photographs or films, usually acquired during a relationship, and publishing them on the internet with intent to cause distress to a former partner, is nasty and hurtful behaviour. To the victims it causes untold pain, embarrassment and humiliation. It is an appalling violation of privacy and a gross breach of trust.
Sections 33 to 35 of the Criminal Justice and Courts Act 2015 came into force in April of that year, and there were 200-plus prosecutions in the first year. To that extent, the criminalisation of revenge porn has been a success. However, responses to BBC freedom of information requests showed that out of 1,160 reported instances between April and December 2015, no action was taken in no less than 61% of cases, and many of the victims were children, some as young as 11. Many cases were not prosecuted because of insufficient evidence or because the victim did not proceed with the complaint, but of course that does not mean that the incidents did not occur. We are seeing an ever-increasing use of the internet to hurt people, often hiding behind anonymity or disguised identity. It is reasonable to assume that revenge porn will continue to be posted on the internet, despite its criminalisation.
Especially worrying is the persistent and, I suspect, increasing prevalence of the practice known as sexting, particularly among children and young people. In addition to pursuing offenders through the criminal law, we must ensure that we increase public awareness and that police forces take these offences seriously—consistently seriously across the country—and develop a social culture which treats this behaviour as beyond the pale. An NSPCC study in 2012 estimated that between 15% and 40% of young people had been involved in sexting; that much of that was under pressure, whether peer pressure or personal pressure from people with whom they were involved in a relationship; and that many images were shared with others by those who received them without the consent of their subjects. There is no evidence that with the increasing use of social media by young people, that number has decreased. Of course, there is a strong link between sexting and revenge porn.
These amendments are designed to tighten up the law. They also to a large extent bring the law into line with the equivalent legislation in Scotland, the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, where the wider provisions have worked well. Proposed subsections (1) and (2) of Amendment 216 would extend the scope of the disclosure offence to bring photographs and films of breasts and buttocks within the range of sexual images and therefore within scope of the offence in the same way as such images of the victim’s exposed genitals or pubic area. That is in the Scottish legislation and it is quite clear from the evidence we have seen that such images are likely to cause distress, particularly to young girls, in the same way and to the same extent as the images presently within the scope of the Act. Of course, disclosure of such images would be an offence only if the threshold criteria were met: that the image was private, that it was disclosed without consent, and that it was disclosed with the intention of causing distress. There is no reason for the legislation to restrict the images that are not to be disclosed in the way that it currently does.
In the second part of the amendment, proposed subsections (3) and (4) would remove Sections 35(4) and (5), which are the current exception in the legislation for photographs or films that are created by altering originals or combining them with other photographs or films in such a way as to bring them within the statutory definition of “private” and “sexual”, so doctoring films and images to make them offensive. We do not accept the need or the justification for that exception. If a photograph or film as finished and published has the effect of a private and sexual image and is disclosed without the consent of the subject and with the relevant intent, I suggest that is ample reason to bring it within the section rather than to except it from it.
The first two subsections of Amendment 217 would amend Section 33 of the 2015 Act to extend the disclosure offence to bring threats to disclose private sexual photographs and films within the scope of the offence, as well as actual disclosure. There can be no reason to exclude threats to disclose from the legislation and, although it is true that the actual disclosure is what causes much of the harm, a threatened disclosure by the holder of sexual images of a victim can be used to put real and painful pressure on the victim, usually a previous partner, causing very real distress. That is why the amendment would bring threatened disclosures into scope.
Secondly, proposed subsection (3) would broaden the category of the unnecessary emotional consequences for the victim necessary to sustain a conviction so as to include “fear or alarm” as well as “distress” as an alternative form of consequence. That extension is particularly relevant in the context of threatened rather than actual disclosure.
Thirdly, the amendment by the proposed subsection (3) would also make proof of recklessness regarding the distress, fear or alarm likely to be caused sufficient to found a conviction as an alternative to proof of intention. Again, this is in the Scottish legislation. In this context, reckless disclosure means disclosure that is deliberate but that is made entirely without regard to the distress, fear or alarm that it is likely to cause to the victim. The perpetrator knows he is making the disclosure. He should not escape criminal liability just because the prosecution cannot prove that he positively intended its obvious consequences. We suggest that he should be equally criminally liable if he turns a blind eye to those consequences. It is right that intention should be supplemented by guilt in respect of disclosure that is reckless as to the likelihood of the harm it will cause. The deletion of Section 33(8) that is proposed by subsection (5) is also necessary to achieve that end.
Lastly, the proposed subsection (4) in the amendment would introduce a clear and explicit ban on promoting, soliciting or profiting from photographs or films that are themselves in breach of the Act. I apologise that, as drafted, the use of the words,
“reasonably believed to have been disclosed without consent”,
is perhaps inappropriate; I am not sure that reasonable belief is correctly used there. I suspect the proposed new clause would better read if it were expressed as, “disclosed without consent in the knowledge or belief that they had been so disclosed”, and we would redraft subsection (4) in that regard before Report.
Amendment 218 would introduce a provision for compensation for victims of offences under these provisions. It is plainly right that these revenge porn offences should give rise to a power to award compensation, but I would add to that self-evident assertion two particular points. First, this offence is unlikely to give rise to civil proceedings— victims will generally be unwilling to go through civil cases because of the embarrassment that could cause, and they will rarely have the means to do so.
Secondly, there will be many cases of revenge porn offences where the perpetrator is gainfully employed and will have the means to pay compensation ordered by the court for the hurt he has caused. We suggest that a power to award compensation, to include compensation for anxiety as well as for direct financial loss, is therefore an important part of a judge’s power to deal with an offender and publicly to recognise the harm caused by the offender directly to the victim.
Viscount Hailsham (Con)
My Lords, I have a great deal of sympathy with what the noble Lord is saying. What troubles me slightly is the quantum of the compensation and, more particularly, whether there is any appeal on it. I think these offences are triable either way. In the magistrates’ court, is there an appeal to the Crown Court on the quantum contemplated? If the case is tried on indictment, where lies appeal from the compensation ordered by the Crown Court?
Lord Marks of Henley-on-Thames
My Lords, it is quite plain that there ought to be an appeal. I have not looked at the provisions and perhaps I can clear that up before Report. It is also quite clear that the appeal from the magistrates’ court on compensation would go to the Crown Court and from the Crown Court to the Court of Appeal, where the standard for an appeal is high but one would expect the judges to get it right. The noble Lord knows well that these issues of compensation are very much in the discretion of the trial judge, taking into account both the harm caused and the ability of the offender to pay the compensation. It is a perfectly good question and I undertake to look at it before Report.
Finally, Amendment 219 would simply add these offences to the list of sexual offences in respect of which a victim is entitled to anonymity. It is right that there should be anonymity for victims of revenge porn offences because these fall squarely within the category of sexual offences that are entitled to such anonymity. I think this is relatively uncontroversial. I beg to move.
Viscount Hailsham
My Lords, I give qualified support to what has just been said by the noble Lord, Lord Marks. I have a great deal of sympathy with the underlying argument which he has advanced. There is no doubt, and it is increasingly the case, that people are using private intimate photographs and films for the purpose of blackmail or revenge. Given that we have a Bill where we can extend the existing law, I see absolutely no reason why we should not extend the substantive offence of disclosure to one of intent as well. That is a perfectly sensible amendment and I would support it if given the opportunity.
Regarding extending the definition of the “damage” from distress to the enlarged category which the noble Lord spoke of, my feeling is that the word “distress” probably encompasses what he has in mind. However, I have no objection to the extension in the sense that it does at least remove any doubt that may exist and is certainly not harmful. I suspect it is not necessary but I am not against it.
I made a point about compensation when I intervened on the noble Lord and I will not repeat it at any length. In principle, I am in favour of a compensation provision, but I worry about compensation at large without any kind of regulation of the amount: that can mean injustice. I am far from clear on whether the Crown Court has an appellate role in respect of compensation awarded at the magistrates’ court, and I would be grateful if the Minister could help the Committee on this. I am even more in doubt as to whether the Court of Appeal would have a role in considering an award made at the Crown Court. Will my noble friend give some thought to this, maybe returning at some later stage? If there is no effective appeal, I have two suggestions. One is that we should impose an arbitrary cap—a ceiling—on the amount that could be awarded. That would prevent any obvious injustice. Secondly, and differently, we should consider restricting the claim for compensation to a claim made in civil proceedings, where the procedure is more clearly established.
Amendment 219 is about anonymity. I took the opportunity to look at the substantive Act and was struck by the very large number of examples which are covered by anonymity. I can see no reason of principle, and rather a lot of advantage, in accepting the amendment put forward by the noble Lord to extend anonymity to this category of case.
Lord Pannick (CB)
My Lords, I have some comments on Amendments 216 and 217 for consideration by the Committee. On Amendment 216, I am doubtful that Section 35 of the Criminal Justice and Courts Act 2015 needs amendment to add the words “breasts” and “buttocks”. The reason for that is that Section 35(3) already defines a photograph or a film as sexual if,
“it shows something that a reasonable person would consider to be sexual because of its nature”,
or if the,
“content, taken as a whole, is such that a reasonable person would consider it to be sexual”.
The reason why I anticipate that the 2015 Act does not make a photograph of a breast or a buttock necessarily sexual is that it is very easy to think of circumstances in which such a photograph is not sexual by reason of its context. It may be a photograph of your child in a swimming pool with their breast exposed; it may be a photograph of a breast-feeding mother. It may be a beach shot of my family that shows someone in the background wearing a thong. It all depends on the context—and if the context is sexual, the Act already covers it.
Subsection (4) of the proposed new clause in Amendment 217 would create a new criminal offence of promoting, soliciting or profiting from “private photographs and films”. I have no difficulty, of course, with the idea that that should be a criminal offence. I point out that that subsection, however, does not use the word “sexual”. I assume that that is a drafting error; it talks about profiting from “private photographs and films”, but I think it should say “private sexual photographs and films”. Otherwise, it has a very different scope—which I see from the nodding on the Liberal Democrat Benches was not intended.
Lord Marks of Henley-on-Thames
The noble Lord, Lord Pannick, is plainly right on that—it needs amendment.
Lord Pannick
I am grateful. My only other point on Amendment 217 is one that I think the noble Lord, Lord Marks, accepted in his helpful opening speech. The offence in subsection (4) is committed if the defendant reasonably believes that the photographs or films were “disclosed without consent”. That would be anomalous since the primary offence—the offence committed by the person who discloses private sexual photographs or films—rightly requires the prosecution to prove that the disclosure was without the consent of the individual.
Lord Marks of Henley-on-Thames
My Lords, I will be very brief in response. We will, of course, consider the Minister’s reply in detail between now and Report.
On the question of appeal and the cap on compensation, I am anxious that victims are not directed to civil proceedings as a result of the difficulties I foresee here. Rather than imposing a formal cap, I am far more sympathetic to the idea of requiring either the Sentencing Council or the Judicial College to introduce sentencing guidelines for compensation for these offences. I am not, at the moment, convinced by the Minister’s response that current compensation-awarding powers necessarily cover the kind of distress and hurt caused by these offences and I cannot see why a specific power should be otiose.
On the points made by the noble Lord, Lord Pannick, the extension of the offence in respect of the type of depictions and images that can be shown would bring this Bill in line with Scottish legislation, as I said. The threshold criteria, according to which images must be private, published without consent, and with intent to cause to distress, answers the point that a distinction should be drawn between the precise nature of the image: if images meet those criteria, the fact that it is not the pubic area but only breasts and buttocks that are shown should still be enough to make them sexual. I am not convinced by the alternative catch-all provision, although I see the force of the point.
The noble Lord, Lord Faulks, made a point about threats to disclose information already being criminalised under certain laws. He mentioned blackmail and theft and the Minister mentioned harassment. The problem with blackmail is that it involves unwarranted demands with menaces, but there is no suggestion here that the mischief at which the amended offence would be aimed is a demand; it is the desire to hurt. I am really not sure that that is covered by any existing offence. Hurt can be caused by the threat of disclosure just as it can be caused by an actual disclosure, and I am grateful to the noble Viscount, Lord Hailsham, for his support on that point.
As to doctored photographs and images, the point about the distress that they cause is that the people who see them do not know that they have been doctored —they are seen as images of the subject. That is how hurt is caused and that is why it is important to cover such photographs and films.
On anonymity, there is no reason why a victim should have to go through the hoops of satisfying a judge that it is required when generally in sexual offence cases it is given as a right. It is also particularly important that those victims who are considering whether to complain of an offence and take the matter to court are guaranteed anonymity as this is an important part of persuading them to come forward with a complaint that then gets prosecuted. The Minister did not answer that point at all.
With your Lordships’ leave, I beg to withdraw the amendment.
Viscount Hailsham
My Lords, notwithstanding the very eloquent speech made by the noble Lord, Lord Pannick, I am in favour of this amendment, subject to one or two points I am going to make. If the noble Lord will forgive me, most of his points are drafting points, which could be dealt with by way of further discussion and a further amendment. I take the point that there are defects in this amendment but in my view, the principle that the noble Lords, Lord Paddick and Lord Campbell-Savours, are aiming at is correct and the arguments that have been advanced by the noble Lord, Lord Pannick, are not correct.
I have two reservations. First, I note that one of the principal mischiefs that this amendment should capture is not dealt with at all: communication by police officers to the press, often for money. I know perfectly well that that is covered by existing legislation and I have no doubt that communication by a police officer giving private information regarding accusations is contrary to the disciplinary code, but if we are moving an amendment of this kind, we should seek to catch the very serious mischief of police officers giving private information to the press.
Lord Marks of Henley-on-Thames
My Lords, is the noble Viscount, Lord Hailsham, saying that the practice of police officers giving information to the press after a person is accused by them of an offence is not covered by the amendment as drawn? I should have thought it was.
Viscount Hailsham
I really do not think so because it is a question of publication. What is meant by “publication”? It is, I think, different from communication. I think “communication” is a private communication—made, for example, by a police officer to a journalist—and “publication” is a more overt act which happens via the press, the television or whatever. I think they are different. Perhaps that matter could be considered by the noble Lord, Lord Paddick.
The second point concerns gossip. The noble Lord, Lord Pannick, is quite right about this. There will be gossip. Among the great mischiefs are social media and foreign communications, where there is an awful lot of identification. That is a form of gossip that is simply not touched by this amendment and probably cannot be. That is a defect, which I acknowledge even though I support the broad thrust of the amendment.
On the broad thrust, I find the arguments advanced by the noble Lords, Lord Campbell-Savours and Lord Paddick, very persuasive. Harvey Proctor was an old colleague of mine in the House of Commons. We all know that he lost his job and his home, and his reputation has been irreparably damaged by what happened. The publicity regarding Sir Edward Heath is simply absurd but it will taint his long-term reputation. I was PPS to Lord Brittan when he was Chief Secretary to the Treasury. His last days were darkened by the allegations against him, which were wholly groundless. There is therefore a serious mischief that the Committee should seek to address.
The noble Lord, Lord Pannick, has made some important points here but, if he will forgive my saying so, he seems to ignore the principle of proportionality, which should come into play. If we are right in supposing that this is a very serious mischief, we should be cautious about allowing drafting points to stand in the way of confronting it. The question of witnesses coming forward is a proper point. There is no doubt that on occasion, publicity enables witnesses to come forward; that is absolutely true. Surely, though, the proviso in the amendment that would enable the police to go to a judge for the authority to disclose the fact of the accusation addresses that point. Maybe it could be improved upon but the concept of allowing the prohibition to be lifted by a judge is surely a sensible one.
The point the noble Lord makes about the accused person being prohibited from receiving exoneration is a perfectly good one and has substance, but actually it is a drafting point and it would take the noble Lord and myself but a few moments to add the necessary words to the amendment to cover it. I ask the Committee to stand back, look at the extent of the mischief and ask itself whether the drafting objections that have been put forward are sufficiently weighty to stand in the way of our doing justice.
Lord Marks of Henley-on-Thames
My Lords, I support the amendment, although there should of course be amendments to the drafting. I accept the point made by the noble Lord, Lord Pannick, about anonymity acting to the detriment of the accused without his consent. I suggest that consideration be given to redrafting the amendment to permit the accused to waive the right to anonymity. On reconsideration, I should add that I consider my earlier intervention on the noble Viscount, Lord Hailsham, to be ill advised: the amendment does not in fact cover communication privately by police officers and I accept that it should.
There has been widespread discussion in the press of the independent review by Sir Richard Henriques into the failure of Operation Midland, the reliance placed on accounts given by, in particular, one unreliable witness and baseless allegations that had been made. Those allegations were, as has been said, permitted to do untold harm to the reputations of a number of prominent men who had given their lives to public service.
The noble Lord, Lord Pannick, reminded us that Sir Richard makes the case for increased anonymity, but his recommendation is that there should be anonymity only pre-arrest. He draws back from recommending anonymity at all stages prior to charge. His reasoning, in paragraph 1.67 of his report, is as follows:
“I consider it most unlikely that a Government will protect the anonymity of suspects pre-charge. To do so would enrage the popular press whose circulation would suffer”.
If that is the reasoning behind his conclusion, I disagree. He goes on to say:
“Present arrangements, however, have caused the most dreadful unhappiness and distress to numerous suspects, their families, friends and supporters”.
In that, Sir Richard is plainly right.
The question of when anonymity should be lost is one of balance. For my part, I do not believe that protection ought to be lost at the date of arrest, when the arrest can be made—as the noble and learned Lord, Lord Judge, points out—on reasonable suspicion only. I accept that the consideration that comes into play is whether, as he suggests, anonymity should apply only to sexual offences, rather than more widely. In my view, the particular position relating to sexual offences justifies the difference when we weigh the balance. He is of course right to say that what needs to come into the balance is the risk of injustice flowing from anonymity, just as there may be—indeed, we know there is—a risk of injustice flowing from the exposure that comes from the lack of anonymity.
As we all know, suspicion—even reasonable suspicion sufficient to ground an arrest—can turn out to be entirely misplaced. There may be a reasonable and truthful explanation for the circumstances that give rise to the suspicion justifying an arrest. While those circumstances may demand that explanation, an arrest can legitimately take place before the suspect has had a chance to give the full explanation required. When a suspect is charged, however, it is on the basis of a different test and different circumstances. First, the police must have the evidence that they believe will sustain a prosecution and conviction, if not refuted. Secondly, the suspect will generally have had a full opportunity to give a considered explanation of the circumstances, if there is one. Public exposure damages a suspect’s family life, his privacy and his reputation—for we are talking about men predominantly. The damage is largely irreversible, even where allegations are later withdrawn or found to be baseless. Death has sometimes made the damage and injustice total.
When striking a balance between the right of a suspect to be protected from that damage and the right of the public to know, the balance tips, in my view, in favour of the public’s right to know at the point of charge, not at the point of arrest. I am not persuaded by the argument that pre-charge anonymity will prevent other victims coming forward altogether. It may be that there will be a delay in such victims coming forward and they will do so after charge, rather than after arrest. That gives some opportunity for witnesses to come forward—as in the case of the murder client of the noble and learned Lord, Lord Judge, which of course could happen in the case of a sexual offence client as well. There is delay to the stage at which anonymity is lost, but it is not lost for ever and there is no reason to suppose that others will not come forward at that stage. My noble friend Lady Brinton’s point, that there should be protection also for the victims from early disclosure until it is established by charge that there is going to be a case, is an important one. I agree with my noble friend Lord Beith that the point made by the noble Lord, Lord Pannick, on gossip and speculation, applies wherever there is going to be anonymity at any stage. The argument that we have to address is at what stage anonymity should be lost.
The only reasonable point that can be made against this amendment is that there may be cases where further witnesses might come forward with legitimate and admissible similar fact evidence which might justify the charge where otherwise no charge would be brought. However, for my part, I have concluded that such cases will be rare and that most can be met by the proviso included—though perhaps to be redrafted—in the amendment. It is a question of balance but, in my view, the possibility of similar fact evidence being lost and justice thereby being thwarted is of lesser weight than the inevitable damage caused by premature exposure of an innocent suspect’s identity.
Lord Rosser
My Lords, as we have seen from this debate, this issue raises strong feelings. I will say before I go any further that the overwhelming majority of those who have spoken so far will not be in agreement with what I have to say. It has not been our policy, as my noble friend Lord Campbell-Savours in effect said, to support anonymity for rape suspects before they are charged or indeed those suspected of other sexual offences. There are almost no cases, at least as I understand it, where suspects are specifically granted anonymity in this way in our legal system. I appreciate that the amendment enables a judge to remove the restriction on identifying the person concerned where they are satisfied that doing so would be in the public interest. But we have yet to be convinced that this test will not in reality lead to fewer prosecutions and fewer victims of sexual assault coming forward than is the case even now. Granting anonymity specifically for those suspected of sexual offences could imply that a person making a complaint in respect of such an offence was not to be believed in the same way as someone making a complaint involving another individual in relation to any other kind of offence, such as child cruelty.
During the passage of the Sexual Offences Act 2003, one reason we gave for not changing the law was precisely to avoid giving the impression that there is a presumption of doubt about the credibility of the complainant in sex offence cases, as well as the fact that naming a suspect in such cases can lead to other victims coming forward—as it did, for example, in the cases of Rolf Harris and Stuart Hall, and the case for a credible and successful prosecution was enhanced as a result. Many of Jimmy Savile’s victims said they thought they were the only ones, and doubted whether anyone would have believed them if they had come forward, bearing in mind the celebrity status of the offender. The position, and their approach, changed somewhat when they found out, through the absence of pre-charge anonymity, that they were not the only ones.
In the light of what has been said in the debate, perhaps it is worth stating that the victims of sexual offences have, of course, also had their lives darkened—not least when the sexual offences were committed by well- known public figures. Of course, the victims themselves rarely are well-known public figures.
I understand that the coalition floated plans to introduce anonymity for rape suspects in 2010, but after carrying out an assessment they concluded there was insufficient evidence to justify a change, and that a change would be likely to have a negative impact on justice for rape overall.
The argument is made that without anonymity, those suspected of sexual offences would suffer shame and harm to their reputation—usually as a result of how the media choose to report such cases even if the person has not been, and never is, charged with any offence. That may be quite true in some cases—more so if the police mishandle their investigation in the way highlighted in the report on the Metropolitan Police released a week or so ago. This argument would also apply, presumably, if someone were accused of murder, serious assault, child cruelty, major fraud or other forms of serious dishonesty and corruption—as we saw with the naming in the media of an alleged suspect, who had not committed the offence, in a particularly unpleasant murder case in Bristol a few years ago. The police have discretion over the naming of suspects, and should do so only when they have good reason to suspect that doing so might produce corroborating evidence that would increase the likelihood of a successful prosecution.
As for the concerns sometimes expressed about false allegations, I believe I am right in saying that the Crown Prosecution Service has found that the number of false allegations is no higher for sexual offences than for any other type of crime. Many would argue that the real problem is still the reluctance of victims to report rape and other sexual offences, and the reasons for that. It has been suggested—although I cannot vouch for this as the correct figure—that perhaps only 15% of rapes are ever reported to the police. Young people and children are targeted more than most by those who commit such offences, who are often repeat offenders. The report on child sexual abuse in Rotherham found that when offenders discovered, over time, that they could act with impunity and were unlikely to be challenged, they simply increased the scale and level of violence in their offending.
We understand why the approach called for in the amendment is being pursued. We do not argue that no case can be made for the amendment, but rather that the case that can and should be made against it is stronger and more powerful. Unless firm evidence can be produced that the terms of the amendment would not result in more perpetrators of sexual offences escaping prosecution because others who may have been the subject of similar assaults do not come forward—because they are unaware that the individual is being investigated, and instead feel that if they did come forward they would be on their own—the amendment cannot be supported.
“Evidence about complainant’s sexual history
(1) The Secretary of State shall within six months of the day on which this section comes into force, publish a report on the operation of section 41 of the Youth Justice and Criminal Evidence Act 1999 (restriction on evidence or questions about complainant's sexual history).(2) The report shall, in particular, include information regarding—(a) the number of applications made for leave in accordance with subsection 41(2) of the Act;(b) the number of such applications granted;(c) the number of such applications refused;(d) the number of prosecutions not proceeded with because of the victim’s concerns as to an application for leave;and to the extent numerical information is not available, as full information as possible regarding such matters.(3) The report shall include any proposals for the amendment or repeal of section 41 of the Act.”
Lord Marks of Henley-on-Thames
My Lords, I rise to move this amendment tabled in the names of my noble friends Lord Paddick, Lady Ludford and myself. The appeal in the Ched Evans case has raised fears that complainants will be deterred from reporting rape because they might be cross-examined about their sexual history under Section 41 of the Youth Justice and Criminal Evidence Act 1999. Those fears are real and if they are justified that would suggest that a change to Section 41 is necessary. I say at the outset that this is surprising because ever since Section 41 was passed, it has been assumed that it is very restrictive and that evidence of a complainant’s previous sexual history may be adduced or cross-examination allowed only in very unusual circumstances.
In 2001 in R v A (No 2), reported in 2002 on page 45 of 1 Appeal Cases, the noble and learned Lord, Lord Steyn, said,
“my view is that the 1999 Act deals sensibly and fairly with questioning and evidence about the complainant’s sexual experience with other men. Such matters are almost always irrelevant to the issue whether the complainant consented to sexual intercourse on the occasion alleged … or to her credibility”.
Section 41(3) of the 1999 Act provides that evidence or proposed cross-examination must relate to sexual behaviour that is so similar to the defendant’s account of the incident in issue that the similarity cannot be explained as a coincidence.
Lord Marks of Henley-on-Thames
My Lords, the noble Lord ought to be cross-examining himself because he has just secured a concession by excellent advocacy, which I failed to do—or I did, but not in such clear terms. In view of that, I will withdraw the amendment.
I disagree with the noble Viscount, Lord Hailsham, on only one point, which was his assertion that I disagreed with him because I said, when speaking to this amendment, that there may be those rare cases where a dispassionate observer might think the exclusion of a relevant account could lead to injustice and unfair convictions. The point here, and the point we seek to have reviewed, is whether, as a result of the Ched Evans case, there might be cases where the restrictive nature of Section 41 has been or may be watered down. We need to look at how it is operating. It is very important that rape gets reported and that the legislation in place is certainly as restrictive as we always thought Section 41 was and as the textbooks say it is. The public concern is that this case seems to have weakened that protection; I am sure the review will take that point on board. I beg leave to withdraw the amendment.
Lord Marks of Henley-on-Thames
Main Page: Lord Marks of Henley-on-Thames (Liberal Democrat - Life peer)Department Debates - View all Lord Marks of Henley-on-Thames's debates with the Home Office
Policing and Crime Bill
Lord Marks of Henley-on-Thames ExcerptsMonday 12th December 2016
(7 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 72-III(a) Amendment for Report, supplementary to the third marshalled list (PDF, 54KB) - (9 Dec 2016)
Lord Faulks (Con)
My Lords, I will not delay the House long, either. We have rightly concentrated on the rights of the innocent; they are fundamental to our system. But I will address your Lordships very briefly on the position of victims. Victims’ groups complain, not without justification, that in the past they have not always been taken seriously by the police or prosecuting authorities. Victims need to be encouraged to come forward. We should not underestimate the courage it takes to report offences of the sort we are concerned with to the police. You may not be believed. You may have to face—so you think—the ordeal of being cross-examined by men in wigs who suggest that you have lied. You may feel very alone, particularly if you have been abused by someone in authority.
Noble Lords will have seen the footballers coming forward many years after the event, and the courage that it took and the incredible upset that it caused them in a macho culture to admit what had happened so many years ago. I take the example given by the noble Lord, Lord Carlile, of someone in a care home. They come to the police many years later. Their evidence is the first of any sort of being abused in a care home by somebody who runs the care home. After they have given their account, the man who is running the care home denies vociferously that he abused this character. There is a suggestion that he may have come forward for financial motive. But what if others come forward? The first complainant may feel that he cannot go through with the matter at all unless some of the other people, whom he knows very well have been abused, do so.
In Committee, I raised the point with the noble Lord, Lord Paddick, that I was concerned that his amendment might result in the police charging rather earlier than they would otherwise have done because they want to flush out potential corroborative witnesses; and that that might be inappropriate. I did not suggest there was any lack of bona fides on the part of the police; this is a very difficult decision to make. However, I suggest that there is that real risk, even with CPS involvement. It is most important that people are encouraged to come forward to give evidence in appropriate cases.
Of course, safeguards have been mentioned, whether in the magistrates’ court or the High Court, but this is a police operational matter. Despite judges’ ability to deal with many difficult things, it is not the right case for them to consider. I suggest that if there is a need for a tightening of the guidelines or for further offences that deal with police behaviour, so be it. But, focusing on the victim, I am for the moment not satisfied that there needs to be a change in the law.
Lord Marks of Henley-on-Thames (LD)
My Lords, I will address a couple of points briefly. First, I will address the difference between Amendments 182 and 187 on the central question of whether it is right to extend pre-charge anonymity to all offences or to sexual offences only. I completely appreciate the logic of the position adopted by the noble Lord, Lord Marlesford, and the noble and learned Lord, Lord Mackay of Clashfern. However, I believe that there is a distinction to be drawn between sexual offences on the one hand and other offences on the other.
I believe that the noble and learned Baroness, Lady Butler-Sloss, was right about this. It seems to me that a particular stigma attaches to accusations of sexual offences, which is generally more difficult to rebut where such accusations are made than where an accusation is made of another offence against the person or of offences against property. It is often far more difficult in sexual offence cases to clear conclusively and for ever the name of a suspect who is not charged than it is in the case of other offences. As the noble and learned Baroness pointed out, there is also the interest of the press in sexual offence cases. I suggest that that is why so much publicity has been given to sexual offences, particularly historical offences, in this debate and in your Lordships’ House generally.
A further point is that the nature of the evidence in sexual offences tends to be historical and tends to involve pitting the word of the claimant against the word of the victim. In those circumstances, the no smoke without fire rubric gains currency. I see this as a question of balance in which the balance in the all-offences case mentioned by the noble Lord, Lord Marlesford, comes down against pre-charge anonymity, whereas it comes down in favour of it in respect of sexual offences. It is a case of the robustness and security that we as a society allow to the presumption of innocence.
The second question I wish to address is that of the stage at which anonymity should cease. I entirely take the point made by the noble and learned Lord, Lord Judge, that the arrest is part of the criminal process and therefore that there is, generally speaking, a public right to know because the liberty of the subject is being taken away at that early stage. However, I cannot get away from the central point that arrest can be effected by a police officer on reasonable suspicion only. That reasonable suspicion frequently arises when the suspect has been given no chance to offer a full explanation which, if he were offered that opportunity, might dispel the suspicion altogether—whereas, to justify a charge, it has to be shown that there is evidence which would, if it were accepted at a trial, lead to a conviction by a court of law. I believe that that distinction is important, and that again the balance is against lifting anonymity at arrest and keeping it therefore at charge.
I then come to the question of witnesses coming forward. I completely appreciate the concern that exists around the House and outside it that witnesses should not be deterred from coming forward. But I also agree with the point made by the noble Lord, Lord Lamont, that in most cases, if evidence from further witnesses is available, it will come forward after charge, so that forbidding pre-charge publicity will delay further evidence rather than prevent it coming to light altogether. There is nevertheless a concern, raised by the noble Lords, Lord Faulks and Lord Pannick, about the possibility of pre-charge anonymity preventing genuine witnesses—notably other victims—coming forward with allegations that might lead to a suspect being charged when he would otherwise escape justice altogether. That is why the detail of the proviso inserted in the amendment of my noble friend Lord Paddick addresses this point precisely, and it is very different from the amendment that was presented in Committee.
Under this amendment a judge is entitled to say that he is,
“satisfied that it is in the interests of justice to remove or vary a restriction provided for”,
and to,
“direct that the restriction shall be lifted or shall be limited to such extent and on such terms as the judge considers the interests of justice require”.
The amendment further states:
“In considering an application … the judge shall have particular regard to the possibility that further witnesses might volunteer evidence relating to sexual offences allegedly committed by the person”.
I believe that that is the best we can do in striking a balance between encouraging witnesses to come forward and enabling them to know about allegations in appropriate cases, and protecting suspects from unjust publicity that causes the dreadful consequences of which we have all heard.
It is all a question of balance and I appreciate that it is a very difficult balance to strike. But I suggest to your Lordships’ House that the amendment proposed by my noble friend Lord Paddick strikes that balance accurately and should be supported.
Lord Rosser (Lab)
My Lords, I note that the noble Lord, Lord Marks of Henley-on-Thames, concluded his comments by saying that it is a matter of balance. I would concur with that view, but the balance concerned depends on which side of the fence you feel you might fall. I do not intend to detain the House for too long, since we have already had a number of Members expressing a desire to hear from the Minister. Nevertheless, I do intend to set out our position.
We do not support either of these amendments. Amendment 182 provides for pre-charge anonymity in all cases, including sexual offences, except where a magistrates’ court decides otherwise. Amendment 187 provides for pre-charge anonymity where a person has been accused of committing a sexual offence unless a judge decides otherwise. I am not a lawyer, and it may well be that my lack of knowledge of the law will be displayed in what I have got to say. But at present, as I understand it, there is an assumption of anonymity before the point of charge, except where the police decide to use their discretion in cases where they believe that disclosure of the identity of the person suspected but not charged is likely, for example, to lead to further evidence coming forward which will enable a stronger case to be made, which will enhance the likelihood of a successful prosecution.
We had a lengthy debate in Committee on the issue of pre-charge anonymity. We on this side acknowledged that a case could be made for going down this road. However, we also referred to the reality that there is evidence—for example, in sexual offence cases, where disclosing the name of the person alleged to have committed such offences has led to other victims coming forward and to a stronger case being able to be made against the accused to secure a successful prosecution. We have evidence that victims of sexual offences are often reluctant to come forward because of feelings that they will not be believed if it is their word alone against that of the alleged perpetrator. This is particularly so where that individual is a well-known and respected—at least, respected at that time—figure. We know too that there are sometimes feelings of shame about such offences, or feelings that such offences have to be tolerated, and a desire not to talk about it. These are feelings that are being expressed now with respect to the rapidly emerging scandal of sexual offences against young people in the football world—people are coming forward now that they know they are not alone.
We know too that the reporting of and convictions for sexual abuse cases are very low. Perhaps we should be spending some time considering why that is the case. We also need to take into account the fact that victims of sexual abuse—innocent people in spades—have had their lives darkened, including when the sexual offences were committed by well-known public figures. Of course, the victims themselves are rarely well-known public figures. During the passage of the Sexual Offences Act 2003, one reason we gave for not changing the law was precisely to avoid giving the impression that there is a presumption of doubt about the credibility of the complainant in sexual offence cases. I am afraid I do not wholeheartedly agree with what I think the noble Lord, Lord Paddick, was saying. Frankly, granting anonymity specifically for those suspected of sexual offences could imply that a person making a complaint in respect of such an offence was not to be believed in the same way as someone making a complaint involving another individual in relation to any other kind of serious offence, such as murder, fraud or, yes, child cruelty.
“Disclosure of private sexual photographs and films without consent
(1) The Criminal Justice and Courts Act 2015 is amended as follows.(2) In section 33 (disclosing private sexual photographs and films with intent to cause distress)—(a) in subsection (1), after “disclose” insert “or threaten to disclose”;(b) in paragraph (b) of subsection (1), after “distress” insert “or recklessness as to such distress being caused”;(c) after subsection (1) insert—“(1A) It is also an offence to promote, solicit or profit from a private and sexual photograph or film that has been disclosed without the consent of an individual who appears in the photograph or film, knowing or believing that the same has been disclosed without such consent and with the intent to cause that individual distress, or recklessness as to such distress being caused.”;(d) omit subsection (8).(3) In section 35, omit subsections (4) and (5).”
Lord Marks of Henley-on-Thames
My Lords, I will speak also to Amendment 184 in this group. I will also mention the fact that my noble friend Lord Paddick will be dividing the House on Amendment 187—that would happen after the debate on Amendments 183 and 184.
“Evidence about complainant’s sexual history
(1) The Secretary of State shall within six months of the day on which this section comes into force, publish a report on the operation of section 41 of the Youth Justice and Criminal Evidence Act 1999 (restriction on evidence or questions about complainant’s sexual history).(2) The report shall, in particular, include information regarding—(a) the number of applications made for leave in accordance with subsection 41(2) of the Act;(b) the number of such applications granted;(c) the number of such applications refused;(d) the number of prosecutions not proceeded with because of the victim’s concerns as to an application for leave;and to the extent numerical information is not available, as full information as possible regarding such matters.(3) The report may include proposals for the amendment or repeal of section 41 of the Act.”
Lord Marks of Henley-on-Thames
My Lords, I move the amendment on behalf of my noble friends Lord Paddick and Lady Hamwee. We debated an exactly similar amendment in Committee. It arises from the Ched Evans case and concerns the restriction on the admission in cross-examination of evidence about a complainant’s sexual history in sexual offences cases. The amendment arose from our concern to ensure that the restriction on the admissibility of such evidence in cross-examination was as strong as we had always believed it to be under Section 41 of the Youth Justice and Criminal Evidence Act 1999.
At the end of that debate, the Minister said that the Government had carefully considered the concerns that had been raised about the provision; that they would determine how best to look at how it was working in practice before deciding whether any further action needed to be taken; and that they would do that as soon as possible. A trenchant question from the noble Lord, Lord Kennedy of Southwark, elicited the answer that that was indeed a promise of a review, which is what we had been seeking.
The reason for tabling the amendment again on Report is to ask the Minister to elaborate further on the review that she has in mind. We are interested to ask what timescale is proposed for the review; who will carry it out, and how; what the terms of reference will be; and how evidence for the review will be collated. I hope that she will be able to respond on those questions at this stage and I beg to move.
Baroness Williams of Trafford
My Lords, the noble Lord, Lord Marks, raises the important issue of the protection of complainants of rape and sexual offences from being questioned about their sexual history. As I previously made clear, it is vital that victims have the confidence to report crimes as terrible as rape, and that they have confidence that the criminal justice process will bring offenders to justice. Our message to those who are willing but currently worried about reporting such offences is that they should feel confident about doing so.
When we first debated the issue, I assured noble Lords that we would look at how Section 41 of the Youth Justice and Criminal Evidence Act 1999 was working in practice. As the noble Lord asked, perhaps I may provide a bit more detail. The Justice Secretary and the Attorney-General have advised me that this will include examining the original policy intent of Section 41, its implementation and how it is operating in practice.
I can confirm that this work will be led by officials in the Ministry of Justice and the Attorney-General’s Office. They will consider carefully the concerns that have been raised and seek views from the judiciary, practitioners and victims’ groups. This work will be completed in the first half of next year.
We have already made clear our commitment to carry out this work and, in our view, there is no benefit in making it a statutory requirement. In the light of the detail that I have provided, I hope that the noble Lord will feel happy to withdraw his amendment.
Lord Marks of Henley-on-Thames
My Lords, I am very grateful to the Minister for the further detail that she has given on the review. I quite accept her position that there is no need for a statutory requirement for it, so I propose to withdraw my amendment. However, in response to the speeches of the noble Viscount, Lord Hailsham, and the noble and learned Lord, Lord Hope, I make clear to the House, for those who may not be familiar with it, that concerns have arisen in the light of the decision of the Court of Appeal in the Ched Evans case, in which the admission of such evidence in cross-examination was permitted in a case in which many thought that it would be excluded. It is for that reason that this has become a matter of additional concern, and for that reason that we are extremely grateful that the review is to be carried out. I beg leave to withdraw the amendment.