Voyeurism (Offences) (No. 2) Bill

Wera Hobhouse Excerpts

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

[Wera Hobhouse (Bath) (LD)]

It is a pleasure to serve under your chairmanship, Ms Buck. I thank everyone for being here today. It is testament to the importance of the issue that we have all ensured that this, my original Bill, has been introduced by the Government and brought through the House to Second Reading so quickly.

Over the past couple of weeks, I have met many members of the Committee to ensure not only that we can change the law as quickly as possible, but that this Bill is as good as it can be. As a Committee, when we go forward with examining the Bill, we must ensure that throughout the process the victims of the crime remain at the forefront of our considerations. I have met with victims over the past few months, such as Gina Martin, who started the campaign last summer. Their bravery has ensured that this crime will stop happening and their campaign has been an inspiration to us all. Without their selflessness and hard work none of us would be here today. For that reason, it is important that we pass the Bill as quickly and effectively as possible.

By ensuring that upskirting becomes a sexual offence, we are sending a clear message that it will not be tolerated. It is a vile practice that has no place in society. If I am honest, I do not know why the law in England and Wales was not changed earlier. This Bill, however, does more than just make upskirting a specific sexual offence. The national debate the campaign has provoked will hopefully lead society to talk more widely about consent. This vile act can happen to anyone, but if we look at the victims, it is clear that it is predominantly an issue of how we, as a society, view women and their autonomy over their own bodies.

Since I have been campaigning to make upskirting a specific offence, I have heard from various groups and individuals who had similar, awful experiences of a sexual nature, albeit not upskirting, which have also not been followed by prosecutions and where there seems to be a gap in the law. The fight to protect women from violent practices does not end here. As the original proposer of the Bill, I recognise that this is not a silver bullet. I will not ignore the plight of other women now that this Bill is passing through Parliament. We must use this opportunity to raise the inconsistency of the law, as it stands, against sexual offences. Currently, for example, revenge pornography is not considered a sexual offence, but, like upskirting, it is done without consent and is humiliating and incredibly distressing to victims. I urge the Government to undertake a review of other sexual offences.

Throughout my work on the Bill, I have been incredibly grateful for support from the Government and colleagues across the House. It has been rewarding to work together so effectively on it, and I hope that we shall continue to do so to make sure that the law protects women and girls in the UK. Of course, I support giving the Bill a Second Reading.

[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 ---

[Lucy Frazer]

With the leave of the Committee, I will answer a number of points that have been raised. First, the hon. Member for Bolton South East rightly mentioned some appropriate examples where there is a gap in the law. She mentioned that Scotland had acted more quickly. We must all remember that Scotland has different laws from us. The offence of outraging public decency, which has been available to some victims and under which some people have been successfully prosecuted here, is much narrower in Scotland so the gap was therefore significantly wider when they legislated.

The hon. Lady also suggested that there had been some delay in acting on our part. I am grateful for the intervention made by my hon. Friend the Member for Cheltenham, but I also draw the hon. Lady’s attention to the fact that the previous Lord Chancellor wrote to the Home Office and the Attorney General when these issues were raised. As a result, the Home Office has been working with the College of Policing to develop police guidance on existing powers, including those under the outraging public decency offence, to tackle some cases of upskirting. The Attorney General has also spoken with the Director of Public Prosecutions and the Crown Prosecution Service, making it clear that all cases involving upskirting need to be considered carefully.

The hon. Lady also asked about the two limbs. Charging decisions are matters for the CPS, which is very used to looking at the evidence to see what charge is most appropriate in the circumstances of the offence; the CPS will do the same here.

We had excellent speeches from my hon. Friend the Member for Cheltenham, who brought his experience of criminal law to identify the right balance on the decision about the sex offenders register, and from my hon. Friend the Member for Faversham and Mid Kent, who bravely described her experience when she was much younger.

[Wera Hobhouse]

We want the Act to be a deterrent, so that these vile practices are eradicated from our society. For that to happen, we just need some successful prosecutions. I think the debate is about how we can ensure that prosecutions are as tight and successful as possible. Then it will act as a deterrent and hopefully very few people will even go that way.

[Lucy Frazer]

The hon. Lady makes an important point. In fact, her campaign and that of Gina Martin have done a significant amount to ensure that this offence, and now its potential illegality, has been brought to the attention of individuals and that they know about it. Often it is the fear of prosecution rather than prosecution itself that protects potential victims of crime.

Before I turn to the wider issues raised in the debate, I will touch on some points that have been made by various Members about the remit and ambit of the Bill. We have thought very hard about how the Bill should be put together, what the motivation should be, and when people should go on the sex offenders register. Some Members thought that motive should disappear, because it is the act and the victims we should focus on, not the perpetrator. It has been suggested to me that we should not need to prove motive, but reasonable justification. The concern with that is that a general principle of our law, particularly our criminal law, is that someone is innocent until proven guilty. To suggest that the prosecution should not have to prove motive, only reasonable justification, would reverse the burden of proof, putting it on the defendant, who is meant to be innocent until proved by the prosecution to be guilty.

In our system of law, the prosecution has to prove every element of the offence, and we say that should remain the case for this offence, too. The offence is criminal and serious, and the punishment we are proposing is serious. It is two years, with the requirement that in some circumstances people will go on the sex offenders register. We think it is appropriate in these circumstances that, as with other offences under criminal law, motivation is identified and proved.

Some Members suggested we should take a wider role in relation to the sex offenders register. We are concerned that we should strike the right balance between protecting victims and, where there are young offenders, protecting offenders. We need to strike a balance in terms of stigmatising them and putting them on the sex offenders register. They might need to be identified to the police as potential criminals for future sexual offences. We should not just expand the sex offenders register. Ultimately, if there were too many people on it, that would make it meaningless.