Voyeurism (Offences) (No. 2) Bill

Maria Miller Excerpts

Second reading committee: House of Commons
Monday 2nd July 2018 General Committees

[The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)]

I beg to move,

That the Committee recommends that the Voyeurism (Offences) (No. 2) Bill ought to be read a Second time.

It is a pleasure to serve under your chairmanship, Ms Buck.

In my short time as an MP, one thing has struck me most: the ability of an individual MP who cares deeply about an issue to have an impact on people’s lives for the better. I therefore start by acknowledging the work of the hon. Member for Bath in campaigning tirelessly to ensure that a Bill on upskirting, which is now the Bill this Committee is considering, becomes law. We are here because of her tenacity, and it is to her credit that such an inappropriate act will become illegal.

I also acknowledge the work of two incredible people, Gina Martin and her lawyer Ryan Whelan. As MPs, we have the levers and tools to make change, but for members of the public it is much more difficult, and I very much doubt that we would be discussing the Bill’s Second Reading today without the work of Gina and Ryan. I thank them for all their hard work in highlighting the issue.

I also thank Members in all parts of the House for the progress that has been made. The Labour party, Plaid Cymru and the Scottish National party have all been very supportive of the Bill and have helped to ensure that it has progressed swiftly through the House. I am grateful for the constructive way in which the hon. Members for Bolton South East and for Dwyfor Meirionnydd have approached the legislation. The Bill has only been possible because of cross-party support. We all entered Parliament to bring about positive change, and I am proud to be leading on a Bill that will protect women and that proceeds with the support of all parties. This is Parliament at its finest.

I shall set out briefly, first, what upskirting is; secondly, what measures there are to deal with it and why there is a gap in the law; thirdly, how we are bridging that gap and ensuring that there are the tools to punish offenders appropriately; and, finally, other important areas relating to sex offences that have been raised in wider public debate.

First, what is upskirting? It is the practice of taking a photograph up a person’s skirt or clothes without their consent. Unfortunately, people are undertaking such activity across the country, from the assistant headteacher who upskirted his own pupils at a convent school to the vice-president of a ticketing company who collected more than 50,000 upskirted images for his own sexual satisfaction. We have to acknowledge that upskirting is taking place—indeed, online guides instruct others how upskirting can be done quickly and easily—and people affected by upskirting have variously described their experiences as “scarring”, “an invasion”, and “embarrassing and humiliating”. One woman, who was on the tube with her parents when she was upskirted, said that it made her feel like she wanted to “peel off her skin” and “scrub it clean”.

Secondly, we are tackling upskirting because there is a gap in the law that needs to be filled and can be filled quite simply. At the moment people can be prosecuted for upskirting through two offences, and successful prosecutions have taken place. The first possible route is through the common law offence of outraging public decency. However, under review that approach was found to be problematic, because it does not capture all the circumstances in which upskirting can happen. Convictions under the common law offence of outraging public decency require an act such as upskirting to happen in public where there is a reasonable chance of at least two other people witnessing it. Conversely, the action can also be caught under the existing offence of voyeurism but, again, there are limitations, as that act is illegal only if it takes place somewhere where there is a reasonable expectation of privacy. In certain circumstances someone is in neither a public nor a private place, and it follows that therefore the action would not be caught by the law. Worryingly, those places might include schools or workplaces.

Thirdly, how will we ensure that the offence is dealt with appropriately? It will be done in a number of ways. The Bill makes it an offence for a person to operate equipment beneath someone’s clothing to observe, allow someone else to observe, or record an image of their genitals or buttocks, whether exposed or covered by underwear. We are ensuring that people carrying out the offence with different motivations will be caught by the Bill. There are different reasons for upskirting, and we have ensured that the Bill will capture that behaviour whether the motive is to obtain sexual gratification or to cause humiliation, distress or alarm to the victim.

[Mrs Maria Miller (Basingstoke) (Con)]

The Minister is outlining the importance of the offence in great detail, and has talked about reasons why an individual might engage in upskirting. Another reason why someone might take upskirting photographs is financial gain, but the Bill does not capture that and there is concern in Scotland about whether that is an omission from the Bill. Will the Minister comment on that?

--- Later in debate ---

[Mrs Miller]

After being in the House for 13 years I thought that the time for firsts was over, but this is the first time I have ever been on a Second Reading Committee, and it is great to be here, Ms Buck, and to serve under your chairmanship.

The Bill should most definitely be read a Second time. I pay tribute to the hon. Member for Bath for her tenacity in securing support from the Government for the Bill, and to the Minister for listening, which is sometimes a difficult thing to do. I have listened to what she has said today about the importance she places on clarity in the law. It is sometimes too easy to be convinced by officials that the law is sufficient and that change is not needed. However, I pay tribute to the Minister, who did not accept that. With the support of the Prime Minister, who also was not so easily convinced, we are here to debate a long overdue new law.

I want to pause to reflect on the Minister’s response to my earlier intervention, when I raised the possibility of upskirting being done for a profit motive. She specified many existing laws that would cover it—and that might be great for someone who is, like her, an eminent QC, who understands it, but I urge her to think about the problems that the police and victims face when the law is not as clear as it needs to be.

Today we are debating public sexual harassment, non-consensual sexual behaviour and, in particular, issues to do with image-based sexual abuse. We must be clear about it: the law is wanting in that area. The hon. Member for Bath talked about the need to address inconsistencies, and the importance of fighting to the end the vile practices that are apparent. I agree that upskirting is important, but there is a need for the law to deal with far more practices.

We debated the issue of revenge pornography in the House in 2014, and it was unclear whether it was against the law. The then Minister, now the Under-Secretary of State for Northern Ireland, my hon. Friend the Member for North West Cambridgeshire (Mr Vara), recited a long list of different legal provisions that could catch revenge pornography; but for victims the reality was that that was all for naught. The police did not understand it; the courts did not seem to understand how those laws worked; and hundreds if not thousands of victims had to endure revenge pornography—the posting of intimate abuses online—without any redress. I am pleased that we are dealing with the present issue, and that the Government have dealt with revenge pornography, by legislating.

I am afraid, however, that we shall be back here again shortly to debate the fact that the law does not cover other ways in which people can be abused online. One issue is deepfake technology. Readily available software packages can be used to swap other faces for those of the actors in pornographic films. At the moment it is being done with the faces of other well-known actors, but what is to stop it happening with the faces of well-known politicians, or a person’s ex, or someone they know, or someone they saw in the street and happened to take a picture of? Today we are dealing with upskirting, but the Government need to take a long, hard look at image-based abuse, because more problems are coming down the line.

When I campaigned to make revenge pornography a crime, I was told by the Crown Prosecution Service—I remember it well—that there was not sufficient need and that only a handful of cases came across its desk. Others said that the victims were to blame for the photos being taken in the first place. Fortunately, the Government knew better and acted, and more than 500 crimes a year are now successfully prosecuted, although hundreds more could be, as I will discuss later.

Although we are congratulating ourselves on this legislation today, we need to ensure that we undertake a much broader review of sexual image-based abuse, and that we do it quickly. That will ensure that we future-proof the law, that we clearly set out to people who seek to undertake such appalling acts that they are against the law, and that we give the victims involved the redress that they deserve in the criminal system.

Secondly, in this broad debate, I ask the Minister to consider, in parallel with her consideration of this law, the changing nature of the offences that are captured by non-consensual sexual behaviour and how they are dealt with in law. There are some grave inconsistencies that appear to show disinterest in the victims or that demonstrate, at most, a lack of understanding of perpetrators’ motives when it comes to undertaking such sexual image-based abuse. For instance, flashing in a mac is a sex offence and is notifiable if the intent is to cause harm or distress, yet creating deepfake porn, where someone posts on a website a picture that has the face of an individual appearing to take part in pornography, is simple harassment. It is difficult to understand how the law can come to that conclusion, when we take into the account the impact on a victim of seeing a flasher versus the impact on a victim who has had their image put into a pornographic scene or video.

Where sexual privacy is violated, it is difficult to see why it is not categorised as a sex offence. Those issues, whether upskirting, revenge pornography or deepfake porn, are not just privacy harms; they are non-consensual sexual activity that is often very public, and they are not being sufficiently captured in law. I hope that the Minister will confirm that she will consider what has been said on the issue when she reviews the victims strategy in the coming months.

The sort of sexual harassment that the Bill highlights is important for society to think about more generally. I am delighted that, alongside the progress of the Bill, the Government are progressing another important element, which is education. If there is to be a real change in attitudes towards women and a world where upskirting is no more likely to take place than smoking on a train, it will be because we have changed people’s attitudes towards that behaviour. Of course, the impact of upskirting is even more devastating than that of smoking. I hope that in her response, the Minister may be able to tell us how she is working on, or how the Government will take forward, sex and relationship education, which is being made mandatory for all school-age children. That is an important achievement of this Government after 17 years of prevarication under successive Governments. That implementation could also further the cause of ensuring that people understand why upskirting is wrong, as well as it being wrong in the law.

As I have said, I support the Bill wholeheartedly, but it is clear that amendments could make it even stronger. I thank Professor Clare McGlynn, who has been extremely helpful in advising a number of MPs on how we might be able to strengthen the law in Committee, particularly by closing some of the gaps that are emerging in the Scottish law, under which upskirting is already a crime. That crime is set out as in the Bill before us, yet the Scots are finding that concerns are emerging, because the protection afforded by the way the Bill is currently drafted can be seen as somewhat patchy.

The first issue, which I raised in my intervention, is about those who may seek financial gain from taking upskirt photographs or those who do it simply for a “laugh”. I put that in inverted commas, because this cannot in any way be seen as a laughing matter, even though some will see the images in that way. They do not see themselves as causing immense stress or distress to the victim, and they do not seek sexual gratification from the images. Surely we should make the law incredibly clear and not leave it to our police forces and our courts to try to decipher what Parliament was trying to put in place.

A second issue on which I will seek amendments in Committee also came up in Scotland when a very similar law was passed. It should also be unlawful for images to be distributed, so we should outlaw the distribution of upskirt images clearly and succinctly in the Bill. The Scots had to pass an additional amendment to the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 to ensure that that was addressed, and it is not the same as the amendment that we passed in this country in respect of revenge pornography; it is much broader.

The third objective is to ensure that all upskirting against under-18s is a notifiable sex offence. I do not think that we should leave the Bill as it is at the moment, whereby it is notifiable, when the victim is under 18, only in certain circumstances.

I am very pleased to say that the idea of the amendments that I have described has already gained quite considerable support.

[Wera Hobhouse]

I have been considering the proposed amendments and the Minister’s explanation about not making this an offence that immediately warrants someone going on the sex offenders register. We are talking about the victim being under 18, but what about when the perpetrator is under 18? The right hon. Member for Basingstoke does not make that clear in her proposed amendments. In discussions with the Minister, I have agreed that having a large number of young people on the sex offenders register might not be a desirable outcome from the Bill.

[Mrs Miller]

I am not sure that the Bill addresses that issue. I am not a lawyer and certainly not an eminent QC, so the Minister may want to stop me if I am wrong, but I think that those sorts of issues are dealt with in the usual ways by the CPS, which decides whether to bring prosecutions. Like the hon. Lady, my understanding is that the CPS already takes the view that people should not be criminalised if that is not sensible. The issue is not addressed in this Bill—I am sure the Minister will correct me if I am wrong.

The amendments that I have talked about would strengthen the Bill so that all upskirting was a criminal offence. There would be no lack of clarity and no need to invoke other legislation. The Minister would get the clarity that she was setting out the need for—the Prime Minister has also set that out in the discussions on this law in recent weeks. We would ensure that the distribution of these images was against the law. At the moment that may not be the case, because not all distribution would fall under the revenge pornography laws or similar provisions. We would ensure that in all cases in which victims were under the age of 18, upskirting would be a notifiable sex offence, which would simply bring things in line with other parts of the Sexual Offences Act 2003.

I am pleased to say that Members from across the House support those amendments, including the hon. Member for Birmingham, Yardley (Jess Phillips), my hon. Friend the Member for Totnes (Dr Wollaston) and my right hon. Friends the Members for Meriden (Dame Caroline Spelman) and for Loughborough (Nicky Morgan). There is also my fellow Committee member, the hon. Member for Dwyfor Meirionnydd, who has indicated that she is prepared to support amendments to make sure that we have the clarity in our law that Scotland is discovering it does not have. The Bill very much replicates what has gone on north of the border.

In conclusion, I say again that I welcome the Bill. It underlines the need for a more comprehensive look at how we tackle these sorts of offences, perhaps in the same way as the New South Wales Government have done with their Crimes Amendment (Intimate Images) Act 2017, which criminalises all intentional taking and distributing of a private sexual image without consent. That is a catch-all for the many things that we struggle with at the moment, and it will hopefully be a catch-all for things that are yet to come. Education and cultural change is a huge part of this and needs to go hand in hand with changes in the law. I hope that the Minister will today give Members reassurance that, while we are taking forward this important Bill, those other issues are being taken into account as well.

--- Later in debate ---

[Alex Chalk]

It is a great pleasure to serve under your chairmanship, Ms Buck.

I will say a small number of things. First, I express credit where credit is due—it has already been done, but it bears repetition—to the hon. Member for Bath, to Gina Martin for her campaign and to the Minister, who has acted with great speed and decisiveness. To move so quickly is, if not unprecedented, certainly rare, and it is greatly to be welcomed.

I regret that the tone taken by the official Opposition spokesperson was so partisan, because the idea that the Labour party has been banging on about this since 2010 is simply untrue. Convention precludes me from going into any detail, but the first time the shadow Justice Secretary mentioned it was on 5 September 2017 following the campaign by Gina Martin, who should have the credit for the campaign. The first time the hon. Member for Bolton South East mentioned it was on 18 June 2018. I am afraid it is simply untrue to suggest that this has been a long-standing Labour campaign. The truth is that the blue touchpaper was lit by the campaigner Gina Martin, that the hon. Member for Bath moved quickly thereafter and that the Government then took up the cudgels.

The Bill strikes exactly the right balance. It is important to ensure that this pernicious conduct is properly outlawed, but also that the penalties are proportionate. Making it an either-way offence is a proportionate and appropriate step. A maximum of two years’ imprisonment is also proportionate and appropriate, although we in this House must when we talk about a two-year maximum, or 24 months, that if someone pleads guilty the maximum sentence is effectively 16 months and the maximum amount of time they could spend in custody is eight months. We must recognise that, but none the less it seems to me that it is in keeping with sentences for other offences, not least harassment under the Protection from Harassment Act 1997 and parts of the Sexual Offences Act 2003.

On the more difficult issue of notification, which I anticipate the Government will have grappled with, the balance has again been correctly struck. An offender will qualify for the notification requirements only if the offence was committed for sexual gratification and the relevant condition was met. Where it is an adult offender, the relevant condition is that the victim is under 18, which makes perfect sense—even if it is a one-off case of an adult who, for sexual gratification, upskirts a 16-year-old, it seems to me that notification should follow—or that the offender has been

“sentenced to a term of imprisonment”

and meets various other qualifying elements. Again, that makes the point that it must be a serious incident before it triggers the notification requirements. That is a difficult balance to strike, but I am entirely confident that the Minister has struck the correct one.

[Mrs Miller]

I note that my hon. Friend is another eminently qualified barrister and I am not—I have never studied the law—but is he not a little bit more concerned about the impact on the victim, rather than always looking at the motivations of the perpetrator? Surely the impact on the victim will be the same regardless of whether this has taken place for sexual gratification or not.

[Alex Chalk]

My right hon. Friend is absolutely right; the victim must be at the heart of this. Lest we forget, that is the whole reason for having this Bill. However, my view is that the court can take into account the impact on the victim in deciding what sentence is imposed. The Bill will ensure the notification requirements are engaged only for offences where the impact on the victim has been so great as to warrant a significant sentence.

Where I do agree with my right hon. Friend is on the potential to criminalise an individual’s motivation. I can well imagine circumstances where an individual goes to a festival, takes a whole load of photographs and says, “Look, I think this is disgusting stuff, but there’s a market for it. I’m going to put it online and sell it online. Frankly, whether other people get gratification from it, I don’t know. I certainly don’t want to humiliate or distress these individuals; I’m in it for the money.”

Suppose evidence to that effect emerged, such as an email that that individual had sent to the people who were going to upload those photographs to the internet. It would be rather odd if, in court, he was able to invoke by way of a defence the fact that his motivation had nothing to do with sexual gratification, because the email showed that he was not interested in that stuff, and that he had no interest in humiliating, alarming or distressing victims. If he were able to show that he was purely in it for the money, that would be a rather curious argument.

--- Later in debate ---

[Lucy Frazer]

My hon. Friend makes an important point. Going on the sex offenders register is a serious matter both with what it requires and if it is breached.

I want to touch on a number of points that my right hon. Friend the Member for Basingstoke made. She has done so much individually and through her Committee to champion a large number of issues and protect and help the lives of individuals, particularly women. Together with others, she has raised a number of issues that I would like to deal with. I reiterate that the Government continue to be alive to how new technologies are facilitating the degrading treatment of women and children on the internet, but we also need to be alive to the fact that some of the questions posed are difficult and not straightforward.

A question was asked about whether revenge porn should be a sexual offence, which would have two consequences: anonymity for the victim, and the perpetrator’s going on the sex offenders register. When the offence was first introduced, there was not universal support for it being a sexual offence. In informal consultations, victims did not universally ask for it to be a sexual offence. They often said that they just wanted images taken down. The Ministry of Justice took the views of more than 100 members of the public, many of whom had been victims of or knew victims of revenge porn. Very few suggested that they want it to be a sexual offence.

There are also unintended consequences and risks that would need to be considered. If we made such things a sexual offence, it would require notification. That gives rise to the point we are making about people being put on the sex offenders register when their intent was not sexual gratification, given all the consequences that come from being on the sex offenders register.

If we do not make these things a sexual offence, but instead just give anonymity to victims, we would be creating an inconsistency in the law. We would be extending automatic reporting restrictions—that is, putting people on the sex offenders register and giving people anonymity —to offences that are not sexual. How does that play out for other crimes where the same argument could be made that anonymity would be helpful for victims coming forward? For example, in cases of domestic violence, blackmail, or reckless transmission of HIV, more people might come forward if there was anonymity.

So, if we just say, “We’re creating an offence. We won’t make it a sex offence, because of the issue with the sex offenders register, but we will give you automatic anonymity”, the issue arises of whether we are making a special case of this offence, and whether the case should be the same for other offences that are also not sexual offences? Also, there can be reporting restrictions in any criminal case at the moment, even if someone does not have automatic anonymity.

The question of deepfake was raised. This is a real—

[Mrs Miller]

Before the Minister moves on, I just want to be really clear about something. Victims of upskirting will have anonymity, but she did not draw on the actions of the Government to give anonymity to victims of forced marriage or FGM. Why was it acceptable in those cases but not in the case of revenge pornography, for instance?

[Lucy Frazer]

My right hon. Friend makes an important point. The offence being considered today is a sex offence; it is an amendment to the voyeurism Act and is therefore a sex offence. She highlighted the FGM provision on anonymity. However, the point I am making is that we can create exceptions to a rule, but we must acknowledge that they are exceptions, and once we create one exception, or two, the general rule starts to break down and we have to ask ourselves more, and difficult, and complicated questions.

My point is that this is not a straightforward discrete decision. The Bill is discrete; it addresses a gap in the law that needs to be filled. Many other Members are raising interesting points, but those points are complicated —they are complex—and they have implications for other offences and other laws.

[Lucy Frazer]

I am always grateful for my learned junior’s assistance.

I will now move on to deepfake. Many Members have mentioned deepfake, which is a distressing act that can cause a victim to feel humiliated and can have significant consequences. Cases have been prosecuted in relation to deepfake. There is a case of a City worker who superimposed his colleague’s face on to porn websites and then told the woman’s boss in order to discredit her. He was convicted of harassment. Although there is not a specific offence in relation to deepfake, it is possible, if there is continued misconduct, for someone to be convicted under the law as it stands on harassment.

Other Members have mentioned the issue of sharing photographs and there are already—

[Mrs Miller]

My hon. and learned Friend says that an individual was convicted of harassment for superimposing a face on a pornographic image. I am not sure that she should be dissatisfied—I think she should be outraged and we should be doing something about it. This is not a problem in the future; it is a problem here and now. Should we not be acting?

[The Chair]

Before the Minister replies, I remind everyone that that is not the central topic of today’s debate, so, important though it might be, we should not devote too much time to remarks on that subject.

Voyeurism (Offences) (No. 2) Bill

Maria Miller Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Wednesday 5th September 2018 Commons Chamber

[Stella Creasy]

Absolutely. I would love it if all police forces, including the Metropolitan police—I know that the Mayor of London is looking into this issue—could learn from Nottinghamshire police and the other four forces that are acting, but I also recognise that the police are asking Parliament to offer guidance on these issues, and that is what we can do today. If we change the law and offer women new protections from hatred, we will send a clear message to women that they can report these crimes, and a clear message to the police that they should not only record them, but do something about them.

I am pleased that the Law Commission is open to reviewing this issue, and I am pleased to hear from those who work with people who deal with hate crime on a daily basis. The proposal in the new clause has the support of Refuge; the Southall Black Sisters; Stonewall; Citizens UK, which has been doing fantastic work campaigning on this issue in Nottinghamshire; the Fawcett Society; Tell MAMA; Dimensions, which works with people with disabilities; Solace Women’s Aid; and Respond, which works with children and adults with learning disabilities. There is a whole panoply of people who recognise that hate is holding our society back and that it is right that we make sure that that does not happen.

Right now, we say that if a woman is targeted in her workplace, we know who is wrong, but as soon as she steps outside, we do not know what happens. New clause 1 is about that gap in our legislation.

I know that some people—not just on Twitter—are going to ask about men. The “What about the men?”—the misandry point. The Law Commission review could look into all that, but let us be clear that it is not men who are trying to report this crime on a regular basis. It is not men who are experiencing this regularly. It is not men who are being targeted in this way. It is not men who we say are worthy of protection at work, but not if they dare to go out at night. Let us engage in all the whataboutery that we want to, but do not tell me that women’s experiences do not matter. When people argue against these proposals, they are saying that, on that basis, the existing protected characteristics are not that important—that there is a limit to how far they want equality to go.

I have had that in some of the comments I have received about this issue. A gentleman wrote to me today to say:

“Obviously this is a law to prevent perverts’ fantasies. Yet as a society why is it we have allowed women and even our daughters and granddaughters to dress even more suggestively than was the case generations ago that must be giving rise to fantasies…out there?”

Under your eye, Sir, if you have been watching. May you be blessed.

Another man wrote to me to say that I am abusing my position

“to push for Misandry to be juxtaposed with her Misogyny.”

and to

“target the bloke-hating females of the species”

because I am a

“a nasty feminist ‘I’m Offended’ snowflake whinger hell bent on emasculating male society.”

The vast majority of men in this Chamber and in our society do not want to be associated with that bile, but they do want to make sure that people are safe, and that is what this is really all about. It is not about flirting or banter. I have yet to meet a couple who have said that they met because he followed her down the street demanding that she get in the car with him. It is about how we make this a country where everybody is free.

I am really done with all the whataboutery and all the opposition to this. It is not really a lot to ask for, is it? We would like to be able to walk around this country free from fear. We would like those who target women in a hostile way to be held to account. We would like the harassment to stop.

I am fed up with being told that there have been private briefings saying that somehow this issue is too controversial—too difficult—and that we are going to delay legislation. This is 2018. This is not Gilead. It is not about all men, but it is about some men. There is only one person who can stop this legislation, and that is the gentleman sitting opposite—the Secretary of State—but I know that he does not want to do that. I know that he can hear a reasonable request to review all hate crime, and to look at new and existing legislation to get it right for the 21st century so that we can protect everyone from being targeted just for being who they are. I will tell him, though, that we will not keep waiting. We will not keep being frightened. We will not keep being hassled for going about our daily lives. Please, do not tell women to put up with this because you find it difficult. Let us get on and make 21st century laws to stop it.

[Mrs Maria Miller (Basingstoke) (Con)]

My hon. Friend the Member for Christchurch (Sir Christopher Chope) was right. In objecting, he has given Parliament the proper opportunity to scrutinise the Bill. If he had not objected, the Bill would have gone through on the nod and the amendments we are debating today would not have been possible. The failings of the private Members’ Bill procedures are not for discussion on Report. No one, least of all me, is denying the need to address swiftly the wrongdoing of upskirting, but that should not be at the expense of proper scrutiny. We have to wake up to the need to jettison antiquated, opaque procedures in this place, procedures that in this instance I believe have left a respected and longstanding hon. Member, my friend and fellow Wessex Member of Parliament, open to hostile attack for acting to ensure that this new law is subject to appropriate levels of scrutiny.

As we have just heard from the hon. Member for Walthamstow (Stella Creasy), the issues we are discussing today on upskirting are a part of far broader issues to do with image-based abuse and sexual harassment in public places. It is right that we address upskirting, but it is also right that we reject the piecemeal approach for dealing with these issues. The Women and Equalities Committee is looking at the issue of sexual harassment in public places. The hon. Member for Rotherham (Sarah Champion) is in her place. We have taken copious amounts of evidence on this issue and we will be issuing a report in autumn dealing with many of the issues that the hon. Member for Walthamstow has raised today. The Government need a cohesive strategy in this area. I believe this piecemeal approach is not the right way forward. Indeed, if we had a cohesive strategy, we would not need this Bill.

In wanting to move so swiftly to change the law, the Government are right to use the existing Scottish legislation as its base. However, the Scottish Act was passed eight years ago, and in that time the Scottish Government have themselves recognised significant shortcomings in their own law and made changes, changes that are not reflected in the Bill before us today. The amendments tabled in my name and in the names of right hon. and hon. Members from across the Conservative party, the Liberal party, Plaid Cymru, the Scottish National party and Labour seek to rectify those shortcomings and tackle the emerging problems that we are seeing with the Scottish legislation: very, very low levels of prosecutions and convictions, with legislation that has now been in place for eight years.

Amendment 3 makes all upskirting a crime. At the moment, the Bill is very narrowly defined. There should never be an instance when it is acceptable to take a photo up anyone’s skirt without their consent. The issue should be the lack of consent, not the motivation of the perpetrator. The perpetrator’s intentions can be difficult for the police to prove. Is it to humiliate? Is it to alarm? Is it to distress the victim? They may never know or care who the victim is. The picture may be shared for a laugh, or taken and sold and then sold on again. How do the police track the buyers and sellers of these photographs? The Bill explicitly does not outlaw upskirting per se; it outlaws it in certain circumstances.

[Sir Mike Penning]

I completely agree with my right hon. Friend’s vitally important amendments. Looking at the evidence of what happened in Scotland, we see that the very low number of prosecutions—as low as three, I think—was partly because the intent of the upskirting could not be proved. Instead of the offence just being, “This is wrong, let’s prosecute”, the intent had to be proven. That was the problem with the Scottish legislation and why the number of prosecutions was so low. My right hon. Friend’s amendments will address that issue. If they are not accepted today, I hope this issue can be addressed in the other place once the Select Committee’s report comes out.

[Mrs Miller]

We have to make the law work in practice, as well as on paper. Like my right hon. Friend, I believe that because these things have been made so complex, the police are finding them difficult to implement. I am not sure that we have an investigation into that. The Minister may want to talk to us further about what she has found out from her Scottish colleagues, because I think they are looking at it in a lot of detail.

[Sir Christopher Chope (Christchurch) (Con)]

I am most grateful to my right hon. Friend, particularly for the generous comments with which she began her remarks.

As a consequence of this being a Government Bill rather than a private Member’s Bill, my right hon. Friend will have seen its financial implications. The financial implications set out in the explanatory notes are on the basis that there will be 29 prosecutions a year—that is all. Is she surprised at all the hoo-hah about this, and that the Government are expecting only 29 prosecutions a year?

[Mrs Miller]

My hon. Friend will hear my thoughts on that in a few moments when I talk about my experience of estimates of the levels of revenge pornography, which were equally low. In practice, there has been much more of it. I therefore wonder how accurate the projections are.

My concern is that drawing the Bill in this way will artificially depress the number of people who come forward. The courts might think that Parliament, in its specific omission of certain groups of people who perpetrate this crime—we know they are doing it already—is artificially narrowing the number of convictions that are brought forward. I do not think that is how Parliament wants the Bill to work. Amendment 3 would make sure that it worked far more broadly and called to account all the people who are committing this crime, not just a very small section of them.

The Minister was at pains in Committee to underline that the two purposes are based “word for word”, as she said, on the Scottish Act. As we have heard, only a handful of cases have been brought under that legislation—just three a year over the past eight years. That is an extraordinarily low level in the context of the statistics that the hon. Member for Walthamstow went through. Research tells us that about one in 10 young people in this country experiences upskirting. That would mean a far higher rate than just three in Scotland or just under 30 in the UK. We need to hear from the Minister what information she has received from Scotland on why there is such a low level of conviction, and what will be done to change that.

I was interested to read the evidence of Alison Saunders of the Crown Prosecution Service. While it said that the motivations in the Bill covered the overwhelming majority of cases, it admitted that:

“It is not inconceivable that suspects will advance the defence that…they had another purpose, such as ‘high jinks’.”

That is a direct quote from her. How confident is the Minister that the CPS has a true grasp of the nature of this offence, given the data we have that implies that there are far more than just a handful of cases every year? As I said, I recall being told that there were just a handful of cases of revenge pornography—fewer than 10 every year—by the same Crown Prosecution Service. With the right legislation, which was put in place by the coalition Government, we now see more than 500 convictions a year for revenge pornography.

Adopting the Scottish model might artificially limit the number of cases that are brought forward. What will the Government do to address that? Will the Minister undertake to have a review of the way the law is working in practice, so that we are not simply having a nice debate today that has very little impact on the lived reality of people who experience this appalling invasion of their privacy and this virtual sexual assault?

Rather than requiring the police to tease out the motivation of an offender and to prove that a victim was humiliated, alarmed or distressed, amendment 3 would make upskirting of any kind a crime. It would have absolutely no impact on the ability of a court to identify the most dangerous offenders and place them on the sex offenders register. Nor would it increase the number of people who are drawn into that.

Amendment 5 directly tackles the other shortcoming in the Scottish Act by making it an offence to distribute upskirting images. Given the Government’s stated objective of copying the Scottish Act word for word, it is unclear why they have chosen to omit the pivotal amendment made to the Scottish Act in 2016 outlawing the distribution, particularly online, of upskirting images. Our existing laws on this issue are patchy at best. I am aware of the Law Commission’s long overdue inquiry into laws in the online world, but to present the Bill with an essential element missing appears to me to be at best an oversight. Will the Minister explain why she felt she should omit this element of the Bill, when it was deemed an essential change required in Scotland?

We need a broader review of the law on image distribution—I have felt that strongly since I was first approached by a constituent about revenge pornography—and I am delighted that the Law Commission is now doing work in that area, but it will take a number of years to complete. In the meantime, outlawing distribution in this Bill specifically would be a stopgap solution, with the Scottish experience as a clear legal rationale. Will the Minister speak to her Scottish counterpart to understand why the amendment was made in Scotland and perhaps even revisit this in the Lords? I am sure their lordships will also be keen to take an interest in this aspect of the Bill.

There was much talk in Committee about not wanting to unintentionally criminalise people, particularly young people, and that is absolutely right—there can be few people who see that as helpful—but rather than dwelling on the perpetrators, we also need to think about the victims and the huge damage being done, particularly to young women, who are on the receiving end of this type of sexualised assault. What message is Parliament sending to young men who are taking pictures up the skirts of their school mates for a laugh if this place excludes that from the law? What are we saying to those young women about the value we put on their right to be protected in law if we see this sort of non-consensual virtual sexual assault as a price worth paying?

I commend the hon. Member for Walthamstow for raising the issue of misogynistic hate crime. It is under active consideration by the Women and Equalities Select Committee in its current inquiry, and I would not want to prejudge that inquiry, but I will say that the scale of sex-based and gender-based crime needs to be recorded, recognised and acted upon, and it needs to be tackled much more broadly, not just in terms of upskirting. I also fully endorse her sentiments about the Law Commission, although it could be said that including that element in the Bill could be problematic in other discussions.

The hon. Member for Bath (Wera Hobhouse) is a tenacious campaigner, and it is to her credit that we are here today discussing the Bill, which deserves the full support of the House. As today’s debate proves, swift change does not have to come at the expense of proper scrutiny.

[Sarah Champion (Rotherham) (Lab)]

I want briefly to share my experiences last week in Korea, in Seoul, where upskirting has not been addressed either by society or by the law. The situation there for women and girls is truly horrific. Girls are scared to go into any sort of public toilet, whether in their school or a shopping mall, and women, when they go into public toilets, take a device with them and scan the toilet to see whether they are going to be violated in this way. I do not want us to go down that route. I want us to look at what is motivating society. Why do men seem to feel entitled literally to expose women in this way, sharing the images and seeing them as objects they can control and do whatever they want with?

We have spoken a little bit about the potential of there being only a low number of prosecutions for this crime. I see that as a good thing. What making this illegal would do is send out the clearest message to people that this is a crime and an offence and that they will have action taken against them if they carry it out.

I am incredibly pleased that relationship education is now coming into primary school for all children. A key component of that is explaining to children what is and is not acceptable and that these gender assumptions are put upon them from the very youngest age and that it is their right to challenge them and to have society challenge them on their behalf, so that they can live a full life, making the choices that they believe in and that they are able to make.

I want to reflect briefly on our society and on how we have come to this point now where we have femicide—two murders a week of women—where violence against women is commonplace and where we have this complete objectification of women without any recourse. I go right back to the very beginning when little girls are effectively told what their expectations can and should be. They are given dolls and tea sets. They are told to be complicit and they are told to be quiet. Boys are told that they will be great crusaders. They have guns and they can become world leaders. We encourage children’s expectations at the age of two or three. That then becomes amplified through social media and, specifically, through online porn.

Porn is overwhelmingly made by men for men and overwhelmingly sees the woman as an object that a man can use and abuse however they choose with no repercussion. Until we get the relationship education that shows children that this is a fantasy—in many cases, a perverse fantasy—that is what children will believe that they have to be subjected to. I am talking about boys and girls. When Members go into secondary schools, I am sure that they have young boys and girls coming up to them and asking them, “Do I have to have anal sex? Do I have to strangle my girlfriend when I have sex? Do I have to have sex with other people there?” They are genuinely anxious about this, and we are letting our children down. This legislation on upskirting is about saying, “No, this is unacceptable. It is unacceptable for you to perpetrate and it is unacceptable for it to happen to you.” It sends out a really clear message. I am incredibly grateful that the Government have introduced this Bill.

I also wish to focus on the amendments that include the distribution and the profiting from upskirting. Much of this is being done for money. In Korea, that is what is happening. People are humiliating women not just for their personal gratification, but to make money, so it would be a grave omission if that were not included.

I turn now to the substantive point that I have been trying to make: this crime is a symptom of the misogyny that we are experiencing in this country and that we are seeing escalating in this country, and it needs to be tackled in this country. I urge the Minister to carry out the review that has been proposed by my hon. Friend the Member for “Walthamshire”—[Laughter]—and to incorporate the amendments in the Bill.

--- Later in debate ---

[Sir Christopher Chope]

I have nothing but praise for the hon. Lady. Fortunately, the Opposition Whips, who are represented on the Selection Committee, obviously did not think it was necessary to allow the Bill to proceed without any amendment. It is worth putting on record that, during that Committee debate, the official Opposition spokesman said:

“The Opposition support the Bill completely, and will not propose any amendments.”––[Official Report, Second Reading Committee, 2 July 2018; c. 17.]

At that stage, the Opposition were blindly supporting the Bill, rather than being prepared to examine exactly how it might be improved.

[Mrs Miller]

My hon. Friend has referred to the procedures, processes and membership of Committees. I should like to remind him that the Second Reading of this Bill was done in Committee, and I had to fight slightly to be a member of that Committee. Does he agree that using these kinds of techniques has not really speeded up the delivery of the Bill up to this point and that it has created an opaqueness about the methodology that Parliament uses?

[Sir Christopher Chope]

It has certainly done the latter. It is quite a long time since a Second Reading Committee was set up to consider a piece of legislation, but in terms of making faster progress, there is no doubt that we are much further on than we would have been if this had remained a private Member’s Bill. Some of the other Bills that had already had their Second Reading have yet to come out of Committee and reach their Report stage. So those are some of the advantages of having a Government Bill. Another advantage is that when the Bill goes into Committee, the Committee has the opportunity to take evidence. My right hon. Friend gave potent evidence to the Committee, as did other witnesses. That would not have been possible if the Bill had stayed a private Member’s Bill.

--- Later in debate ---

[Yasmin Qureshi (Bolton South East) (Lab)]

I thank all the members of the Public Bill Committee, from both sides of the House, for their work and active participation. May I say that none of them were stooges? They all actively participated in Committee.

I want to congratulate the campaigner Gina Martin, who highlighted this very important issue and the lacuna in the law. I also acknowledge the work of the hon. Member for Bath (Wera Hobhouse), who introduced this measure as a private Member’s Bill. Mr Speaker, you could say that this is one of the lessons of the law of unintended consequences. When the hon. Member for Christchurch (Sir Christopher Chope) objected to giving that private Member’s Bill a Second Reading, that resulted in an outcry and criticism from every quarter, but it is fair to say that were it not for that, this Bill would not have seen the light of day.

In 2017, the shadow Justice Secretary, my hon. Friend the Member for Leeds East (Richard Burgon), wrote to the Lord Chancellor to ask the Government to enact such legislation in Government time, but they refused to do so. However, we are pleased that they have now been catapulted into bringing forward this Bill. We have supported the Bill at all stages and supported the Government because we recognise the urgency of a situation that needs to be addressed. The Bill was drafted by Ms Martin’s lawyers and we did not want in any way to cause difficulties or a delay in proceedings.

Let us be clear: upskirting is a depraved violation of privacy. It is shocking that in England and Wales at the moment there is no specific criminal offence to cover this, and that it is instead being prosecuted under more general offences such as outraging public decency, although we know it can be difficult to satisfy many of the requirements of such offences. The law as it stands means that the focus of the offence is often on protecting the public from potential exposure to lewd, obscene or disgusting acts, rather than on protecting the individual victim. Some people have been prosecuted for upskirting on the basis of outraging public decency, but that is not really what that specific provision in law was designed for.

The law should focus on individual victims and the crimes committed against them. A number of cases have highlighted the failings of the current law, and I start with the case in 2007 of Simon Hamilton, a barrister, who was convicted after secretly filming up the skirts of women in supermarkets. He was able to appeal on the basis that because none of the victims had been aware of the filming and no one had seen the film, public decency had not been outraged. Then there was the case of Guy Knight, a former chartered accountant, who took photographs up women’s skirts on trains over a period of five months while commuting to work. He was caught after suspicious passengers reported him to the police. More than 200 illicit images were found on his phone and laptop, and 10 of the women in the pictures were traced by the police. None of them was aware that they had been photographed.

This campaign came about because of Ms Gina Martin. About a year ago, she was at a festival in London with her sister when she noticed that the man behind her had taken photos up her skirt. Shocked and distressed, she sought help from the police, but the law was not sufficient to ensure that they could help her. That is why a change in the law is required, and it is why we have supported the Government throughout proceedings on this Bill.

We must remember that many women right across the UK are being affected. This can happen to any woman on public transport, in a park, at a concert, or even just on a walk along a busy street without the victim even realising that the photographs have been taken. It is impossible to judge how many women have been victims of upskirting, although a quick internet search will bring up hundreds of sites and thousands of images. On phones and laptops there may be millions more pictures that were taken on the streets, on escalators, in shopping centres, in supermarkets, in nightclubs and in other places. I think the hon. Member for Christchurch may be wrong to say that the Bill will cover only 29 cases per year.

There are endless web forums where amateur upskirters can exchange tips on how to get the best picture. One was posted by a man who had made a “cam-bag”—a holdall that had a specially made pocket with a hole for a digital video camera lens. The post says:

“Never forget to shoot their faces before or after to know which girls the ass belongs to…After the first…asses, they look very similar and you lose most of the fun. After upskirting them, either step back and wait for them to turn or step by them and shoot directly sidewise.”

Another poster on the forum said that he operates

“mostly at theme parks and tourist hotspots, or really anywhere that draws a large crowd of spectators and cameras”.

He finds

“an attractive young lady, preferably a teen for my tastes, and then I evaluate the situation.”

[Mrs Miller]

The hon. Lady mentioned that my hon. Friend the Member for Christchurch (Sir Christopher Chope) referred to 29 cases. It was the Government, not my hon. Friend, who said that there would be 29 cases a year. Does she not share the concern that that is a very small number, given the prevalence of the problem and the evidence that she is presenting about the number of websites on which this issue is so blatant?

[Yasmin Qureshi]

I thank the right hon. Lady for that intervention, and I stand corrected. The hon. Gentleman referred several times to the figure of 29 cases, and I sensed that he was trying to say that the estimate that 29 people a year would be affected made the Bill not very important. By referencing, as the right hon. Lady said, what is happening online, I was trying to emphasise that the Bill will potentially cover many, many more people.

--- Later in debate ---

[Lucy Frazer]

I am happy to take that away and consider it. It is appropriate that when we look at protected characteristics we do not look exclusively at sex and gender characteristics, which as I said will be included. I am very happy to consider the point the hon. Lady makes and I will get back to her on that.

Secondly, I would like to deal with amendments 1 to 4, tabled by my right hon. Friend the Member for Basingstoke (Mrs Miller), in relation to purposes. Before turning to the substance of her amendments, I would like to pay credit to her for all her work in this area. For many years, as Chair of the Women and Equalities Committee and individually as a Member of Parliament, she has continually stood up for the rights of women. I am very grateful to her for highlighting important points to me on the Bill in Committee and more informally. The Department has considered very carefully the issues she raises and reflected on them. I will set out in due course how we propose to deal with the points she has very carefully and helpfully raised for consideration, but first I will deal with the substance of the Bill as drafted.

In the Bill as drafted, upskirting is criminalised if the perpetrator takes an image with the purpose of either sexual gratification or causing humiliation, distress or alarm to their victim. The reason those motivations are identified in the Bill is that they are used in other current legislation. Amendments 1 to 4 would remove those defined purposes, effectively taking away any mens rea to the offence and therefore criminalising the taking of all upskirting photographs whatever the circumstances. As I understand it from the explanatory statement and the speeches today, the intention behind amendment 3 is to ensure that those undertaking this sort of inappropriate behaviour for group bonding or financial gain are caught.

[Mrs Miller]

My hon. and learned Friend is making very clear when it is not acceptable to take an upskirting photograph. When is it acceptable to take an upskirting photograph, because by definition there must be some instances when she thinks it is acceptable?

[Lucy Frazer]

My right hon. Friend makes an important point. It is never acceptable to take a photograph up someone’s skirt without their consent, but we as legislators have a very important duty when we pass laws, particularly criminal laws. Criminal laws set out a criminal liability and give people a criminal record, which has significant consequences for their lives. We need to take that duty and that obligation extremely seriously, so not every act that is inappropriate becomes criminal.

[Mrs Miller]

I am speaking to a QC, so I am treading very carefully here. We have an obligation as Parliament to be crystal clear to the judiciary, as my right hon. Friend the Member for Hemel Hempstead (Sir Mike Penning) said eloquently in his speech. What the Minister just said is entirely confusing to me and possibly to the judiciary. If she is saying that there are examples where upskirting is allowable, she should be clearer. She cannot have her cake and eat it, if I may be so bold, and say that there are such instances, but there aren’t really.

[Lucy Frazer]

I am very grateful for what my right hon. Friend says. I have the highest regard for the work she has done and for the importance she places on this subject. When judges look at what people should and should not be criminally responsible for as a matter of law, they will look at the legislation we have passed. It is important that that is set out in the legislation and that the legislation is clear.

I will identify three reasons why accepting the amendments proposed by my right hon. Friend would make the law less clear, less certain and less advantageous. First, we believe it is likely that those who engage in upskirting for the purposes set out in the explanatory statement on amendment 3, which she outlined, will be caught in any event by the Bill as drafted. The hon. Member for Rotherham (Sarah Champion) said that we should think about a situation where someone takes an upskirting image to upload it to a website for financial advantage, and possibly catch it in the Bill. We think that it will be caught by the Bill as drafted, because in uploading the photograph to a website where people will pay for it, the person intends others to look at it to obtain sexual gratification. Equally, if someone took an upskirting image primarily for a laugh, they would likely be captured on the basis that the amusement was caused by the humiliation, alarm or distress that they intended the victim to feel.

--- Later in debate ---

[Mrs Miller]

“Courage calls to courage everywhere”: that is what we have been saying so much this year, and I welcome the courage of Gina Martin to take action, of the hon. Member for Bath (Wera Hobhouse) for following it through, of my hon. Friend the Member for Christchurch (Sir Christopher Chope) for saying no and of the Minister for listening, and I welcome her clear undertakings today. I was reflecting that when I joined this place some years ago now in 2005, I do not think we would have passed a Bill like this. I think Parliament now has the courage to deal with these sorts of issues as well.

I welcome my hon. and learned Friend the Minister’s undertaking to have a Law Commission review of hate crime. That is an enormous step forward, and she is to be applauded for making sure that happens, as well as for making sure that we have a review of this legislation after two years and that we have a long overdue Law Commission review of non-consensual intimate images, which would make the need for this sort of piecemeal legislation redundant.

This Bill is the start of a process of creating a more coherent strategy for tackling non-consensual abusive images and, potentially, misogynistic crimes that create such a negative and demeaning environment for women and girls in this country. I wish the Bill well in its passage to the other place, and I hope that their lordships will take a further look at the issues that we have debated here today, to ensure that all victims have recourse to justice and that the Scottish experience in relation to outlawing distribution in the context of upskirting is adequately dealt with in the short term as well. I am sure that there lordships will look in great detail at the discussions that we have had today before the Bill reaches the Floor of their House.