Voyeurism (Offences) (No. 2) Bill (Third sitting)

Liz Saville Roberts Excerpts

Committee Debate: 3rd sitting: House of Commons
Thursday 12th July 2018 Public Bill Committees

[The Chair]

Before we begin, Members may remove their jackets if they wish. Can everyone please ensure that all electronic devices are switched off? Tea and coffee are not permitted.

The selection list, which shows the order of debates, is available in the room. However, I remind Members that decisions on amendments take place in the order in which they appear on the amendment paper. I will use my discretion to decide whether to allow a separate stand part debate on individual clauses following the debates on the relevant amendments.

Clause 1

Voyeurism: additional offences

[Liz Saville Roberts (Dwyfor Meirionnydd) (PC)]

I beg to move amendment 2, in clause 1, page 1, line 9, leave out

“, for a purpose mentioned in subsection (3),”.

This amendment is consequential to Amendment 1

[The Chair]

With this it will be convenient to discuss the following:

Amendment 3, in clause 1, page 2, line 1, leave out paragraph (c).

This amendment is consequential to Amendment 1

Amendment 1, in clause 1, page 2, line 6, leave out subsection (3) and insert—

“(3) It is a defence for a person (A) charged with an offence under this section to prove—

(a) in respect of an offence under subsection (1)—

(i) that operating the equipment was necessary for the purposes of preventing or detecting crime, or

(ii) that A did not operate the equipment with the intent of observing another person’s genitals, buttocks or underwear, and

(b) in respect of an offence under subsection (2)—

(i) that recording the image was necessary for the purposes of preventing or detecting crime, or

(ii) that A did not record the image with the intent of recording an image of another person’s genitals, buttocks or underwear.”

[Liz Saville Roberts]

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

Amendment 2, along with amendments 3 and 1, was tabled by the right hon. Member for Basingstoke (Mrs Miller) and has support from Members of every single political party in the House. The group of amendments seeks to change the purposes mentioned in the Bill to ensure that all upskirting is illegal, regardless of the motivation.

The common issue in all upskirting cases is that the victims did not know that a picture was taken, nor did they consent. The amendments seek to ensure that the Bill, which intends to close a loophole, does not enable another on the motivation of the perpetrator. That view is supported by the Director of Public Prosecutions; victims who presented evidence to the Committee, whose anonymity should be respected; the victims’ lead of the Association of Police and Crime Commissioners, Dame Vera Baird; and Victim Support, in the most recent written evidence presented to the Committee.

As we are amending the Sexual Offences Act 2003, consent should surely be considered, given the significance of establishing consent and the degree to which the complainant has capacity to give consent in other sexual crimes. Upskirting by its very nature is committed without the victim’s knowledge or consent. The Bill does not adequately cover financial motives such as selling to the media, as is common in celebrity upskirting shots. Public order offences might cover such situations, but if they can be covered by the Bill simply by changing the focus to consent, that should be done.

The Bill does not cover situations where the motivation to take a picture is group bonding or banter. In such situations, images are taken not always for sexual gratification or to distress the victim, but purely to have a laugh with friends. The amendments would cover that situation.

I beg the Committee’s leave to refer to the views presented by Alison Saunders, who notes:

“The Bill criminalises observation or recording without the complainant’s consent. Unlike other sexual offences, this offence is commonly committed without the complainant’s knowledge.”

She states that consideration must therefore be given

“to providing that the offence is committed where the complainant either does not know or consent.”

Alison Saunders notes concerns about the specific purposes for which the activities in question must be committed. She anticipates that most offending would fall within the specified categories, but warns that

“this is another element that the prosecution will need to prove. It is not inconceivable that suspects will advance the defence that this purpose is not made out beyond reasonable doubt and/or that they had another purpose, such as ‘high jinks’.”

Some of the evidence that has been presented to us—again, I respect the anonymity of the victims—lays out the range of defences people will put forward with success, which brings into question whether we should not be more cautious in our approach to purposes. Ms Saunders also notes

“Consideration could be given as to whether purpose is a necessary or relevant element of the offence (once it has been proved that the conduct is intentional, and given that it involves an affront to the integrity and dignity of the victim).”

The right hon. Member for Basingstoke set out many of those arguments in her oral evidence on Tuesday.

As this legislation is necessary, I do not intend to hold up the Committee or to press the amendments at this stage. I would, however, like to stress again that the point of legislation is to be fit for purpose and effective, not simply to exist. Nor should we be expected to revisit it within an unreasonably short period of time. I hope that the Government will give proper consideration to this issue, since I and many colleagues believe that the amendments are needed to ensure that the legislation protects victims, whatever the motive of the perpetrator. Legislation should be clear and consistent, and in the case of sexual offences it should be mindful of proportionality in the degree to which the onus is on the complainant to prove a motive for the defendant’s choice of action.

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

It is an honour and a privilege to serve under your chairmanship, Ms Buck.

I am grateful to the hon. Lady for providing an opportunity to discuss this important issue, and I appreciate the impact that this activity can have on the individuals affected. I am also grateful to my right hon. Friend the Member for Basingstoke; I know she spent much time considering the Bill, including giving up her time on Tuesday to give evidence to the Committee. I am grateful for the leadership she provides as Chair of the Women and Equalities Committee, and the powerful position she has taken on tackling ongoing challenges around sexual harassment.

The three amendments that were tabled by my right hon. Friend and have been moved today by the hon. Member for Dwyfor Meirionnydd would remove the element of purpose, so that upskirting is caught in all circumstances, save for when a defence is established. Those defences are outlined in amendment 1. We understand the objective of ensuring that the offences are wide enough to catch all those who should be criminalised for taking upskirting photographs, and we understand the hon. Lady’s motivation in moving the amendments. It is important to raise and consider these issues, and I am grateful for the opportunity to do so.

Before turning to the amendments, it might be helpful to explain why the Bill has been drafted as it has. The Bill seeks to rectify a gap in the law. That gap exists in relation to where the act takes place: it is possible to prosecute for upskirting in a private place or a public place, but possibly not in a place that is neither private nor public, such as a school. A school is not open to the general public, so it is not public, but it is open to many, so one could not expect privacy.

The Bill specifies two purposes for which an offence can be committed: to obtain sexual gratification or to humiliate, alarm or distress the victim. The reason these purposes are identified is not only that they are clear and appropriate, but that they use language that is familiar to criminal justice agencies. These motivations are used in current legislation. They are used, word for word, in Scotland. They are also familiar to the English system. That means that the Bill as drafted has precedent in law, and we know it will catch inappropriate wrongdoing.

I will deal with a few criticisms that have been made of the Bill’s breadth. It has been said that it will not catch all those who should be caught—for example journalists, as the hon. Lady mentioned—but if a person takes a photograph with the intention of uploading it to a website where others will look at it for sexual gratification, the uploader will be caught. It will not matter that the person who took the image is not obtaining sexual gratification themselves—for example, if they just want to get paid for the photograph. If they share it with another person with the intention that that person obtains sexual gratification, they will still be caught by the new offences.

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[Lucy Frazer]

I will deal with the hon. Lady’s point in a moment, after I have dealt with the one about proving sexual gratification.

Assistant Commissioner Hewitt acknowledged that sexual gratification already has to be proved under existing legislation—the Sexual Offences Act 2003—and that it is well understood by the police, prosecutors and the judiciary. He said that motivation can be assessed by interviewing the offender and through digital evidence, such as the website an image is uploaded to, and that it is then for the magistrate or the jury to decide whether there is a sexual purpose.

[Liz Saville Roberts]

rose—

[Stella Creasy]

rose—

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[Lucy Frazer]

Yes, my hon. Friend is right, and I am grateful to have his expertise in Committee as a criminal barrister who is used to prosecuting offences. There is no need to show a primary motivation; it just has to be a purpose, and there may be many purposes. Equally, that would apply to commercial gain.

[Liz Saville Roberts]

Does the Minister none the less share the concerns of the Director of Public Prosecutions about putting the onus on the prosecution? We are concerned about the effectiveness of this law because the complications implicit in having to tease out the different levels of motivation to find the one that we want, at a time when the police have limited resources and might not initially regard this as a serious crime, might just put too many hurdles in the way.

[Lucy Frazer]

People may have different views about that question. When activities are criminalised, it is right that the Crown Prosecution Service has the burden of proving the offence. We need to strike the right balance between victims and people who are accused of offences. Amendment 1 would reverse the burden of proof to the extent that it would rest on the defendant to show that they acted for a different purpose, and it is very limited, with only two reasons. It would put the burden of proving a defence on the defendant, but I see no issue with the fact that in our law it is for the CPS to prove its case and to prove that people should be criminalised for what is an extremely significant offence. It is wrong that people do this activity, but when they do it and they are criminalised for it, they will have a criminal record for a sex activity for which they could go to prison for two years.

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[Alex Chalk]

The hon. Lady is absolutely right. Ultimately, we are trying to prevent offending so that victims can get justice. One aspect of victims getting justice is ensuring that something is put on the statute book as quickly and efficiently as possible. The key evidence, if I may say so—the centre of effort that came from Gina Martin’s evidence—is that she wants to see this on the statute book. For it to mirror the situation in Scotland has an added advantage.

The second point, over and above the inconsistency, is about the sexual offenders register, which is critically important for this reason. If someone is put on the sexual offenders register, that is major deal, because if they act in breach of that they will go inside. It is absolutely right, by the way, that that happens. If somebody commits an offence such as this for a sexual motive, it is quite correct that they should go on the sexual offenders register. Indeed, the overall tenor of the evidence is that the Bill is right to draw a distinction between those who commit the offence to humiliate or degrade and those who commit it to achieve sexual gratification.

[Liz Saville Roberts]

rose—

[Alex Chalk]

I will give way to the hon. Lady in a moment.

Most people recognise that only people in the latter category should go on the register. Let us imagine for a second that this amendment were carried. The defendant would say, “I’m not guilty of this crime. I want to have a trial, please.” He would go before a judge and jury and say, “My phone was operating by accident. I didn’t mean to do it,” and the jury would say, “Pull the other one. Guilty.” At that point, who would decide whether that person went on the sexual offenders register or not? The jury would not have been able to give any kind of verdict on the individual’s purpose when he took the photo. In other words, the judge might sit there and say, “I’ve no idea. It wasn’t really relevant to the offence. Am I, the judge, going to make the decision about what his motivation was?” How does that serve justice?

[Liz Saville Roberts]

I question the hon. Gentleman’s statement that the overwhelming tenor of the evidence is in favour of what he is arguing. What has been presented to us, particularly since yesterday, is quite strong, especially if we look at what both the victims lead for the Association of Police and Crime Commissioners and the Director of Public Prosecutions have said. In response to the balance of power in sexual offences, Dame Vera Baird QC, Northumbria’s police and crime commissioner, said:

“We do not regard a specific motive as the important characteristic of this behaviour. More important is that this behaviour is done without the consent of the person being photographed. Its impact is that it is a violation of her/him in an intimate way and is thus more closely related to rape and sexual abuse than might at first be considered. It appears to be based on the concerning notion that women’s bodies are public property over which any one has a right to take advantage, for any motive, if they can find a way of doing so.”

[Alex Chalk]

I absolutely accept that the purpose of consideration in Committee is to drill down on such matters and see how they would work in practice. No one should misread my representation on this; of course victims come first—that is why we are here and why the Government have moved so quickly to get the Bill on to the statute book. We recognise that there is a socking great hole in the law that needs to be filled. The question is how that can be done as effectively, efficiently and fairly as possible. Apart from anything else, if the view is taken in due course that we did not think about that in Committee, the people who will be most upset about that are the victims, who will think it bad law.

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[The Chair]

If no one else wishes to speak, I call Liz Saville Roberts.

[Liz Saville Roberts]

Diolch yn fawr, Ms Buck. I shall seek the Committee’s leave to withdraw the amendment at this stage, but I will work with others to redraft and refine amendments, in discussion with Members in the other place, with the intention of tabling them on Report.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Liz Saville Roberts]

I beg to move amendment 4, in clause 1, page 2, line 8, at end insert—

“(3A) It is an offence for a person (A) to disclose an image of another person (B) recorded during the commission of an offence under subsection (2) if the disclosure is made without B’s consent.

(3B) It is a defence for a person (A) charged with an offence under subsection (3A) to prove—

(a) that disclosure of the image was necessary for the purposes of preventing or detecting crime, or

(b) that A did not disclose the image with the intent of disclosing an image of another person’s genitals, buttocks or underwear.”

Again, amendment 4 was tabled by the right hon. Member for Basingstoke and is supported by Members from every party. It seeks to ensure that the sharing or distribution of upskirting images taken without the complainant’s consent is a criminal offence.

As we all know, the Bill is modelled on the equivalent Scottish legislation, which had to be supplemented, relatively soon after its introduction, by additional legislation to stop the distribution of images. That was necessary to make the original legislation effective. It therefore does not logically follow that the Government will bring forward part of what is necessary—measures to prevent sharing—to address this issue effectively.

As the right hon. Lady pointed out in evidence to the Committee, current legislation might stop the distribution of upskirting images, but only in cases where such images would cause distress. As we have already discussed, sharing an image on a group chat for the purpose of banter is not necessarily intended to cause distress, so it may well not be covered. The amendment would close that clear loophole.

Another potential loophole was raised by the Director of Public Prosecutions, who noted in her submission to the Committee that

“the Bill does not criminalise a person who is in possession of images which have been recorded”

without the consent of another person or people

“but where it cannot be shown that”

that individual was responsible for recording the images. For example, someone might have hundreds of such photographs on their computer or digital device or devices, but there might be no forensic evidence to reveal how they came to be taken. It should also be noted that there is no power of forfeiture over such images, so someone may have a really quite unpleasant collection but, unless those other pieces were in place, there would be nothing we could do about it. It could be claimed as a collection—a collection of women being distressed. We have not addressed that.

I also draw the Committee’s attention to the precedent set by existing law in relation to revenge porn. There may be an offence under section 33 of the Criminal Justice and Courts Act 2015 if it can be proved that the sharing of images was done with the direct intention of causing distress to the victim. As we know, that does not cover distribution motivated by finance, entertainment, amusement or indeed sexual gratification. That means that commonplace activities such as sharing among groups of friends are not covered. Once again, rather than acknowledging that distress is implicit in the objectification of women through this deliberately demeaning and humiliating act, we will place the onus on the complainant—the victim—and the prosecution to quantify distress.

Let me say in passing that I welcome the Law Commission’s ongoing review of online abuse. I took part in one of its consultations last night. On the basis of its recommendations, which are relevant to what we are discussing, I understand that the Department for Digital, Culture, Media and Sport intends to bring forward a White Paper on internet safety by the end of 2018. I look forward to the Minister’s response.

[Lucy Frazer]

I reiterate that the Government are introducing this Bill to protect victims. That is absolutely why we have sought to introduce this legislation swiftly.

The amendment seeks to create an additional offence of disclosing the upskirt image, where such an image is caught by the Bill. It would create two defences to this offence, which are the same as those created by the other amendments tabled by my right hon. Friend the Member for Basingstoke for the existing offences in the Bill.

I sympathise with the position of the hon. Member for Dwyfor Meirionnydd on forwarding and sharing upskirting images. I very much share the desire to ensure that victims are protected by the law from this distressing practice and to ensure that the law is sufficiently robust to address this issue. Upskirting is an inappropriate act that we all agree needs to be addressed.

The amendment raises an important question about the distribution of images, but this issue is not confined to upskirting. Sharing images and inappropriate material online is a significant issue; indeed, it is a wider problem than this specific offence.

As the hon. Lady mentioned, there is already good work under way across Government to consider these issues closely. As she said, DCMS has asked the Law Commission to look into the onward sharing of images as part of its review in relation to online abuse, and in May we published our response to the Green Paper on internet safety strategy.

Therefore, although the hon. Lady makes an important point, it seems both prudent and beneficial to be careful not to cut across the ongoing work. It would be better to wait until we know the outcome of these reviews so that we can consider them properly, in slower time, to decide what steps are necessary, if any, to take this matter forward. Tackling image sharing more widely is complex and requires detailed consideration and analysis.

[Liz Saville Roberts]

In that case, could the Minister indicate to me, given that there is now a sense of speed in moving forward with this piece of legislation, how she would incorporate anything that was recommended? Frankly, bearing in mind the experience in Scotland, we should be considering addressing this issue now, rather than holding back.

[Lucy Frazer]

The hon. Lady makes a good point. DCMS is looking at this issue. Its report will come forward in due course and then we will need to consider it—both its scope and whether there is anything else that needs to be considered. Sharing images is a wide issue and the Government are very aware that they need to consider new technologies, how they are affecting women and children, the issue of the distribution of images, and all the horrors, as well as benefits, that come with the internet.

We are concerned that using the Bill, which is moving at pace, to deal with this issue could result in unforeseen consequences. I will mention a few of those in the context of the amendment.

First, the amendment suggests that a person would be guilty if they received and shared an image even if they did not know that it had been taken without consent. Secondly, under the amendment, a person would also be liable if the image was passed on to them by email and they passed it on by email, social media or messenger app without opening it.

So, while we must of course consider carefully those who are victims, it is also important to point out that other laws and a number of other offences relate to this area, which will potentially catch perpetrators of this sort of crime. So, onward sharing is captured by the revenge porn offence, if it is done without consent and with the intention of causing distress to the victim.

There are also offences that might capture the distribution of such photos. The offence of improper use of a public electronic communications network is captured by section 127(1) of the Communications Act 2003, while section 1 of the Malicious Communications Act 1988 captures the sending of letters and other articles with intent to cause distress or anxiety. There are also harassment offences.

The sharing of images is not just a question for the criminal law; we also need to consider the responsibility of the platforms on which those images are shared. Victims need to know that such images will be taken down rapidly, and it is good to know that YouTube, Facebook and Twitter all have terms and conditions that state they will remove upskirting images when they identify them or are requested to do so by a user.

If someone takes an upskirt image and subsequently shares it, they will be fully punished for taking it, and any harm caused by the sharing of it would be taken into account in sentencing. The two-year maximum sentence for the new offence is a serious penalty that fully reflects the harm caused.

The offences in the Bill will tackle the taking of the photo. Existing offences already capture the misuse of communication networks, but, importantly, that issue is wider than the Bill can cover, and the Government are already looking at the broader issue of online abuse. In those circumstances, I urge that the amendment be withdrawn.

[Liz Saville Roberts]

Once again, I shall work with others to redraft and refine the amendment, in discussion with Members in the other place, with the intention of tabling it on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Stella Creasy]

I beg to move amendment 6, in clause 1, page 2, line 13, at end insert—

“(4A) Where a court is considering for the purposes of sentencing the seriousness of an offence under this section, and either or both of the facts in subsection (4B) are true, the court—

(a) must treat the fact mentioned in subsection (4B) as an aggravating factor (that is to say, a factor that increases the seriousness of an offence), and

(b) must state in open court that the offence is so aggravated.

(4B) The facts referred to in subsection (4A) are—

(a) if, at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim having (or being presumed to have) a particular sex characteristic, or

(b) if the offence is motivated (wholly or partly) by hostility towards persons of who share a particular sex characteristic based on them sharing that characteristic.

(4C) For the purposes of subsection (4B), ‘sex characteristic’ means the protected characteristic of sex in section 11 of the Equality Act 2010.”

This amendment ensures that if the crime is motivated by misogyny then that will be considered by a court as an aggravating factor when considering the seriousness of the crime for the purposes of sentencing.