Voyeurism (Offences) (No. 2) Bill

Lord Marks of Henley-on-Thames Excerpts

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

[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.

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

My Lords, I agree with what was said by the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss. I am not sure that invading privacy is not just as much a purpose as an activity. I shall be brief in support of Amendments 2 and 3 in my name and in the name of my noble friend Lady Burt of Solihull.

I made it relatively clear at Second Reading that I would have preferred the specified purposes provision to be omitted altogether, and in that regard I go further than the agnosticism of the noble and learned Lord, Lord Brown, and the point made by the noble Lord, Lord Faulks. That would mean that an offence would be committed by anyone taking upskirting images without the consent of the victim, though I would add a different proviso: so long as the action of taking or recording the images was not accidental. This could have been quite easily achieved in the legislation by the use of a word such as “deliberately”, and would have constituted an acceptable required level of mens rea—or guilty state of mind—to constitute the behaviour criminal. But my chief concern, and that of my noble friend Lady Burt and others, has been to ensure that no one is permitted to avoid criminal liability by running the defence that he lacked the required purpose. The amendment by the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, is designed to achieve that end.

I would add another problem that has not been covered. There is a concern that the specified purpose in new Section 67A(3)(b)—that is “humiliating, alarming or distressing” the victim, would be entirely absent, not only in the case of the robust constitution professed by the noble and learned Lady, Lady Butler-Sloss, but also in a case where the perpetrator intends to avoid detection by the victim by taking or recording the images without the victim knowing. If the victim is not to know of the behaviour, then she cannot be humiliated, alarmed or distressed by it. In such a case, the only remaining—

[Lord Faulks]

I thank the noble Lord for giving way. The distress may not be something the victim is aware of at the time it takes place, but were they to become aware—which ex hypothesi they would in the case of a prosecution—surely then they would suffer humiliation and distress, having found out what had been done to them.

[Lord Marks of Henley-on-Thames]

I do not accept that, because in some cases these images would be published and a prosecution would follow without the victim ever being traced. The victim may not know the images are of her—there may be distinctive parts, there may not—but there may be cases where distress can come either with the prosecution or later. In the proposed new section as it stands, the prosecution has to prove that the intention of the perpetrator was to bring about that distress. That seems an unnecessary complication and hurdle to erect in front of the prosecution so that it has to prove that purpose to secure a conviction.

There may well be cases in which the perpetrator can say that sexual gratification, whether for himself or another person, was not his intention or purpose—the example has been given of “having a laugh”. In Amendment 2, we have identified financial gain, where these images are to be published to make money, as another intention. In Amendment 3, we have identified entertainment or amusement, which is another way of saying “having a laugh”, as another.

The noble and learned Lord, Lord Keen, has argued that financial gain will be achieved by the creation of these images or recordings only if they are to be sold for someone’s sexual gratification. I am not sure that this is entirely true. I believe that, in some circumstances, financial gain may be made by unscrupulous individuals peddling sick humour arising from such images, with no intention on the perpetrator’s part to secure sexual gratification for anyone, whether others may view them for that purpose or not. The purpose of the perpetrator must be proved, not the coincidental fact that others may get sexual gratification from viewing such images later.

The amendment moved by the noble Lord, Lord Pannick, is elegant and cleverly covers our point. However, the noble and learned Lord, Lord Keen, indicated to us that he might look on that amendment favourably even if I have not persuaded the Government—I am not sure that I have persuaded the Minister—of the merits of our amendments. I hope that I have done so; I do not see the difficulty in accepting our amendments. We regard them as improving the Bill by specifically outlawing taking or recording images for financial gain or for entertainment or amusement. Our amendments can be taken with those in the names of the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, which I hope the Government will accept in any event. The point is to avoid people who clearly should be convicted of offences under this new and welcome legislation unjustly running defences of absence of the relevant purpose and getting away with it.

[Baroness Burt of Solihull (LD)]

My Lords, I will add briefly to the comments of the noble Lord, Lord Pannick, the noble and learned Baroness, Lady Butler-Sloss and my noble friend Lord Marks. As the noble Lord, Lord Pannick, will already have gathered, we welcome Amendment 1, which would widen the offence to include,

“invading the privacy of B, whether or not by”,

humiliating, alarming or distressing them, for the reasons he has given.

Amendment 2 would widen the motivations to include financial gain by the person who took the photo or whoever has distributed it. Upskirting images are freely and easily available on the internet; this amendment spells out that anyone profiting from their distribution is committing a criminal offence.

Amendment 3 cuts off the defence that a group of “lads”—however old they may be—were bonding, having a laugh and did not mean any harm. It is not okay, whatever the motivation of the perpetrator or perpetrators, if the person has not consented. I believe that it is worth spelling that out. These points deserve to be made even if they do not make it into the Bill.