Voyeurism (Offences) (No. 2) Bill

Lord Pannick Excerpts

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

Moved by

[Lord Pannick]

1: Clause 1, page 2, line 8, before “humiliating” insert “invading the privacy of B, whether or not by”

[Lord Pannick (CB)]

My Lords, Amendment 1 is in my name and that of the noble and learned Baroness, Lady Butler-Sloss. I apologise for not having been present at Second Reading. I was in Udaipur, India, for the wedding of my son Joel to Dhara Shah, and very enjoyable it was. However, as the Minister knows, I have taken an interest in this Bill since before it arrived in this House.

I strongly support the Bill. It will provide much-needed criminal sanctions for offences that cause substantial distress to victims, but my concern is that, as drafted, it might fail some victims. The problem is that each of the offences created by Clause 1—that is, operating equipment or recording an image beneath the clothing of another person—is dependent on proof by the prosecution that the defendant has acted for a purpose mentioned in new Section 67A(3). There are two unlawful purposes: obtaining sexual gratification, and humiliating, alarming or distressing the victim.

My concern is that it is absolutely inevitable that some men—it will almost always be men—who are accused of this offence will say that they did the act of voyeurism not for the purpose of sexual gratification or for humiliating, alarming or distressing the victim, but for the purpose of “having a laugh”. Of course, there is nothing remotely funny about these offences for the victim. I recognise that the prosecution will invite the magistrate or the jury to reject any such defence, but there is a real risk that the defence may succeed in at least some cases, perhaps because the jury will be confused by the need for the prosecution to prove one of the specified purposes.

I share the concern expressed by the noble Baroness, Lady Burt of Solihull, at Second Reading. At col. 789 of Hansard, she talked about defence barristers seeking for their clients “a legal loophole”. There is a potential loophole here; indeed, one so large that it would be more appropriate to describe it as a manhole. My amendment is designed to deal with this by providing that the defendant commits a criminal offence if the prosecution can prove that the defendant acted for the purpose of obtaining sexual gratification or for the purpose of invading the privacy of the victim, whether or not by humiliating, alarming or distressing them.

The amendment would not alter the structure of the offence. It would retain the need for a mental element—that is, proof of the defendant’s purpose. It would retain the imposition of notification requirements only on those who commit the offence for reasons of sexual gratification, which the Government are rightly concerned about. However, it would prevent defendants adding to the distress of their victims by running a wholly unmeritorious defence which may, in some cases, result in them escaping justice. I beg to move.

[Baroness Butler-Sloss (CB)]

My Lords, I have put my name to this amendment and I also support the Bill. I say to the Minister that the amendment is intended to be helpful.

I have been reflecting on the possibility that this might happen to me. From time to time, I wear very wide skirts, and more than once, in going up and down the stairs to the Tube, the skirt has come right up. I can just imagine a young man thinking it irresistible to stick his iPhone under my skirt as it goes right up for a lark. He might then say that it was not intended and that he did not think he would humiliate me. Quite simply, I would not be humiliated, alarmed or distressed. I would be extremely angry. And if I got the chance, I would put my leg exactly where you think I might. Bear this example in mind. In my view, it is not covered by the current wording of the clause because the action lacks intent and, much more importantly, was done to an elderly woman who then did not suffer any of the suggested reactions. As my noble friend Lord Pannick said, there is a gap—a manhole—and victims such as myself would not be covered.

I am sure the Minister had no hand in drafting this, but it is a well-meaning example of male paternalism. Nice, decent elderly men think that this is how all women would feel, but I am one who does not. For that reason, I strongly support this amendment.

--- Later in debate ---

I have listened carefully to all noble Lords who have contributed to the debate this afternoon. I recognise that the amendments in this group are well intentioned and designed to be helpful. However, I am confident that the Bill as drafted achieves what it sets out to do. Any amendments made in your Lordships’ House will need to be considered in the other place in due course. I do not believe that any of these amendments improves the Bill in a way that merits a potential delay. On that basis, I respectfully ask the noble Lord, Lord Pannick, to withdraw his amendment.

[Lord Pannick]

I am grateful to the Minister for her thoughtful and detailed response to my amendment, and to all noble Lords who have participated in this debate. I accept that, as the noble Lord, Lord Faulks, said, distress for the victim is almost inevitable once she knows of the act of upskirting—though not in all cases, as the noble and learned Baroness, Lady Butler-Sloss, has told the Committee. The problem is that the offence as defined in the Bill will require proof beyond a reasonable doubt that “humiliating, alarming or distressing” the victim is the purpose of the wrongdoer.

I see the force of the Minister’s point that the “laugh” can be said to be the consequence of humiliation, alarm or distress. The difficulty remains, however, as the noble Lord, Lord Marks, pointed out, that it will almost always be the intention or purpose of the wrongdoer that the victim should not know of the act of upskirting. That would enable the wrongdoer to argue that it was not his purpose to humiliate, alarm or distress, although he will be forced to concede that once the victim knows what has happened, she—with the exception of the noble and learned Baroness and others who think like her—will be humiliated, alarmed or distressed. The prosecution have to prove purpose. That is the problem, as I see it.

The noble Baroness, Lady Chakrabarti, told the House candidly that she would prefer the drafting in Amendment 1—I see her nodding. She expressed two concerns, which were echoed by the Minister. The first is a pragmatic concern that this Bill should not be sent back to the other place because that will cause delay and there are uncertainties about what would happen to it. With great respect, that is a wholly unrealistic concern. If this amendment has force, and if the Government were to accept it—I know they will not—or were to accept some redrafting that addresses the concerns that have been expressed, it would be simply inconceivable that the House of Commons could not find government time to consider the matter again. How long would it take? On ping-pong, the House of Commons deals with the most complex matters in 30 minutes or an hour. I simply do not accept that that is a real concern—it could be raised about any Bill on any important subject. It is surely our job to try to get legislation right.

The second concern related to Scotland, where these defences have not so far succeeded. There is limited experience there. Our concern is not to cast doubt on Scottish legislation but to raise real concerns about what will happen in practice. We are enacting legislation, and we should get it right, not just follow the Scottish experience if we are persuaded that amendments are required.

I found the points made by the noble and learned Lords, Lord Hope of Craighead and Lord Brown of Eaton-under-Heywood, more troubling. As I understood them, neither disputed that the noble and learned Baroness, Lady Butler-Sloss, other noble Lords and I have raised real concerns about potential loopholes—or manholes. I see the noble and learned Lord, Lord Hope of Craighead, nodding. Their concern is whether the solution we are proffering is the right one. I will consider that, as will, I am sure, the noble and learned Baroness, Lady Butler-Sloss, before Report.

I would welcome the opportunity to discuss with all interested noble Lords and the Minister whether we can reach agreement on an amendment that in no way damages the strength of the Bill but removes a potential loophole. I am not wedded to this particular solution; I am concerned about the problem. I think we have to get this right. In the other place, when this subject was discussed in June, Diana Johnson MP asked,

“how many hours of debate … will be required for Members to arrive at the conclusion that the taking of photographs underneath, mainly, women’s clothes by perverts is a bad thing?”—[Official Report, Commons, 18/6/18; col. 48.]

We have taken 45 minutes, which I think is a valuable use of parliamentary time. I think this is a subject we should return to, no doubt briefly, on Report, and a subject that may well require an amendment to the Bill, which I hope we can achieve by agreement. In the meantime, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.