Lucy Frazer contributions to the Voyeurism (Offences) Act 2019

Wed 5th September 2018 Voyeurism (Offences) (No. 2) Bill (Commons Chamber)
3rd reading: House of Commons
Report stage: House of Commons
21 interactions (2,675 words)
Thu 12th July 2018 Voyeurism (Offences) (No. 2) Bill (Third sitting) (Public Bill Committees)
Committee Debate: 3rd sitting: House of Commons
36 interactions (2,969 words)

Voyeurism (Offences) (No. 2) Bill

(3rd reading: House of Commons)
(Report stage: House of Commons)
Lucy Frazer Excerpts
Wednesday 5th September 2018

(1 year, 11 months ago)

Commons Chamber
Read Full debate Bill Main Page
Ministry of Justice
Yasmin Qureshi Portrait Yasmin Qureshi - Parliament Live - Hansard
5 Sep 2018, 7:25 p.m.

I thank the hon. Gentleman for that helpful lesson in arithmetic. I can do that arithmetic, but the point I was trying to make was that he kept repeating that figure, so it seemed to me that he was trying to suggest that the Bill might not cover as many people as it purported to do.

Another man posted:

“I’ve been upskirting chicks, mostly at clubs, for almost two years. The club I go to is a great spot, real crowded, strobe lights going, loud music, so no one notices me sitting near the edge of the dance floor and if a woman in a skirt ends up by me I stick the cam under and snap.”

Legislation is needed to deal with those types of cases.

Several Back Benchers tabled amendments. My hon. Friend the Member for Walthamstow (Stella Creasy) spoke with great passion about her new clause and street harassment, and we support her on that. The Government must urgently look into bringing forward a comprehensive Bill to deal with many issues, including anonymity for victims of revenge porn; the cross-examination of victims of abuse by defendants, as occurs in civil courts; and the distribution and sharing of images. We need a fundamental review of all hate crime and sexual legislation to ensure that victims are protected and have access to justice, so it would be very welcome if the Law Commission or another body could look into this issue, with its recommendations implemented in law as soon as possible.

I commend the right hon. Member for Basingstoke (Mrs Miller) for her tremendous work as the Chair of the Women and Equalities Committee, which itself does tremendous work. I hope that the Government will address the points in her cogent and pertinent amendments and take on board the matters that she raised and the issues of concern. Hopefully, as the Bill progresses through both Houses, the Government will consider those amendments.

Lastly, on the amendment tabled by the hon. Member for Christchurch, I believe that in all cases judges should have discretion in deciding who should be put on a sexual register and when. That should not be a blanket proposal; it should be left to the individual judge in an individual case to decide whether somebody should be put on a sexual register, because being on the sexual offenders register has clear implications and repercussions for people.

Lucy Frazer Portrait The Parliamentary Under-Secretary of State for Justice (Lucy Frazer) - Parliament Live - Hansard
5 Sep 2018, 7:28 p.m.

Upskirting can be humiliating and degrading, and it is appropriate that that is recognised by the criminal law. As the hon. Member for Bolton South East (Yasmin Qureshi) rightly mentioned, although there is not currently a specific offence on our statute books, fortunately the law does already provide some protection. Prosecutions can be and have been brought under the common law offence of outraging public decency and the offence of voyeurism.

There is a gap in the law that needs to be filled, and it relates to where the offence takes place. Currently, if the offence takes place in a public place, such as a street, a person can be caught under the outraging public decency legislation, and if the offence takes place in a private place, they can be caught under the Sexual Offences Act 2003. However, there is a gap if the offence takes places somewhere that is neither public nor private. Worryingly, such places could include a school or a workplace. The Government have therefore introduced this Bill to seek to address this issue. As my hon. Friend the Member for Aberdeen South (Ross Thomson) said, it follows Gina Martin’s effective campaign.

Members have tabled a number of amendments that seek to expand the Bill’s scope. I shall address each in turn—and I assure my right hon. Friend the Member for Hemel Hempstead (Sir Mike Penning) that I will take the approach that he took when he was a Minister and consider each one in turn on its own merits, as a matter of policy and of principle.

First, I will deal with new clause 1 and amendment 7, tabled by the hon. Member for Walthamstow (Stella Creasy). They seek to ensure that when offenders of the crime of upskirting are motivated by misogyny or misandry this should be considered by the court as an aggravating factor when considering the seriousness of an upskirting offence for the purpose of sentencing. She also seeks to amend guidance to highlight this issue. As my hon. Friend the Member for Aberdeen South mentioned, it is very important to point out that the hon. Member’s amendments do not propose that misogyny becomes a hate crime, but is simply raised in the context of the upskirting offence. If the perpetrator of the offence was motivated by hostility against women, that should be taken into account on sentencing.

I am very grateful to the hon. Member for Walthamstow for providing a further opportunity to discuss these important issues. While the offence is not specific to women, it is likely that women will most often be the victims. The hon. Member is very right to highlight that this is something we in Parliament should be thinking about very carefully. I recognise her motivation, but I do not think it would be right to pass her amendments. This is because statutory aggravating factors do not usually apply to one or two offences, as would be the effect of her amendment. It would make the new offences inconsistent with all other sexual offences, and there is no rationale for the proposed amendment to apply simply to these offences.

Break in Debate

Liz Saville Roberts Portrait Liz Saville Roberts - Parliament Live - Hansard
5 Sep 2018, 7:32 p.m.

I am grateful to the Minister for announcing a review by the Law Commission. Will she commit to considering in the review a wider range of protective characteristics that are recognised by some police forces, in particular my own in north Wales, which considers English and Welsh language as hate crime protected characteristics? Will she consider those in the review as well?

Lucy Frazer Portrait Lucy Frazer - Hansard
5 Sep 2018, 7:33 p.m.

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 Maria Miller Portrait Mrs Miller - Hansard
5 Sep 2018, 7:35 p.m.

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 Portrait Lucy Frazer - Hansard
5 Sep 2018, 7:35 p.m.

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 Maria Miller Portrait Mrs Miller - Hansard
5 Sep 2018, 7:35 p.m.

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 Portrait Lucy Frazer - Hansard
5 Sep 2018, 7:37 p.m.

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.

Alex Chalk Portrait Alex Chalk - Hansard
5 Sep 2018, 7:37 p.m.

Will my hon. and learned Friend give way?

Lucy Frazer Portrait Lucy Frazer - Hansard
5 Sep 2018, 7:38 p.m.

I will continue for the moment. If I have time, I will happily take further interventions.

The reason the Government do not favour widening the scope of the purposes is that a blanket liability risks criminalising those whom we do not want to criminalise. The amendments could bring in serious unintended consequences and risk bringing too many people within the scope of criminal law. As my right hon. Friend the Member for Basingstoke recognised, the amendments risk criminalising young children who are over the age of liability, which is 10, but who do not realise the impact of their actions and mean no harm when they carry out the act.

There is one further critical issue, which my hon. Friend the Member for Cheltenham (Alex Chalk) mentioned. If all the purposes were removed by amendments 1 to 4, there would be no need for the prosecution to bring forward evidence of the perpetrator’s motivation of sexual gratification. That could mean that those who posed a threat to the public were not put on the sexual offenders register, because the issue had not been determined in court.

My hon. Friend the Member for Christchurch and my right hon. Friend the Member for Basingstoke highlighted the small number of prosecutions that have been brought, and highlighted the fact that we anticipate only a few more in the impact assessment. The reason for that, as paragraph 29 of the explanatory memorandum makes clear, is that there are already laws that catch this activity. What the impact assessment identifies are the new offences that we think will be caught by filling this narrow gap.

The hon. Member for Rotherham rightly stated that we need to change the culture, not lock up more offenders, and education is an important part of that. We recognise, however, the value of the points that my right hon. Friend the Member for Basingstoke and others made, and therefore I am happy to confirm that the Government will review the operation of these offences after two years of their coming into force. This will include working with the police and the CPS and reviewing cases so far brought.

I will briefly deal with sharing. Amendment 5 would create a further offence of disclosing and sharing an upskirt image. We in the Department share the intention and desire to ensure that the sharing of images is robustly dealt with. The best way to do that, however, is not by way of an amendment to the Bill. Legislating in one area alone is not the right way forward. The Government are already looking at this wider issue. The Department for Digital, Culture, Media and Sport has already asked the Law Commission to look into online abuse.

The first stage of that review, which is an analysis of the existing law, will be completed in October, and I am pleased to confirm that following the completion of this first phase, the Ministry of Justice, working with DCMS, will ask the Law Commission to take forward a more detailed review of the law around the taking and sharing of non-consensual intimate images. This will build on the Law Commission’s review of online abuse and allow the Government to consider how to address this issue more widely, rather than just for upskirting images. As my right hon. Friend the Member for Basingstoke said, it is not appropriate to legislate in a piecemeal way.

My right hon. Friend also mentioned the Scottish changes in 2016. My understanding of them is that they were not specific to upskirting but created a separate offence in relation to the distribution of intimate images in the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. This is the broader approach that we in government want to continue.

In his amendments, my hon. Friend the Member for Christchurch suggests that offenders under the age of 18 not be put on the sex offenders register at all. We are concerned that there will be offenders under the age of 18 who need to be on the register, and only if we put them on the register will we protect victims who need protection now and in the future. He also suggests that we need to toughen up and put everyone on it who is over 18. That will diminish the effect of the register and not allow police resources to be concentrated. For those reasons, and in the light of the fact that we are offering a review of legislation after two years and a review of offences more widely, I hope that hon. Members will not press their amendments.

Stella Creasy Portrait Stella Creasy - Hansard

I thank the Minister for listening. For the first time, we are now saying as a country that misogyny is not a part of life or something that should be tolerated but something we are going to tackle. Her commitment to the Law Commission review of all forms of hate crime, including misogyny, and the need for new and existing resources to fund it, is really welcome and a positive reflection of what this place can achieve. We have just sent a message to every young woman in this country that we are on their side. On that basis, I am very happy to withdraw the amendment. I look forward to working with the Minister and the Law Commission review in taking this forward.

Clause, by leave, withdrawn.

Sir Lindsay Hoyle Portrait Mr Deputy Speaker (Sir Lindsay Hoyle) - Hansard
5 Sep 2018, 11:54 a.m.

I remind the House that before Second Reading, as required by the Standing Order, the entire Bill was certified as relating exclusively to England and Wales and within legislative competence. The Bill has not been amended since then. Copies of the certificate are available in the Vote Office and on the parliamentary website.

Under Standing Order No. 83M, a consent motion is required for the Bill to proceed. Copies of the motion are now available Does the Minister intend to move the consent motion?

Lucy Frazer Portrait Lucy Frazer - Hansard

indicated assent.

The House forthwith resolved itself into the Legislative Grand Committee (England and Wales) (Standing Order No. 83M).

[Sir Lindsay Hoyle in the Chair]

Sir Lindsay Hoyle Portrait The Chairman of Ways and Means (Sir Lindsay Hoyle) - Hansard
5 Sep 2018, 3:05 p.m.

I remind hon. Members that if there is a Division, only Members representing constituencies in England and Wales may vote.


That the Committee consents to the Voyeurism (Offences) No. 2 Bill.—(Lucy Frazer).

The occupant of the Chair left the Chair to report the decision of the Committee (Standing Order No. 83M(6)).

The Deputy Speaker resumed the Chair; decision reported.

Third Reading

Lucy Frazer Portrait Lucy Frazer - Hansard
5 Sep 2018, 7:45 p.m.

I beg to move, That the Bill be now read a Third time.

I am very pleased to have this opportunity to speak. I cut short some of my comments on Report to ensure that I covered all the points. I would like to mention something that I did not say when I addressed the amendments tabled by my hon. Friend the Member for Christchurch (Sir Christopher Chope). It was suggested at one stage that he had opposed the legislation that will criminalise upskirting. I know that he never opposed it as a matter of substance, but objected to it as a matter of procedure, as we have heard today. Like other Members, he has made it clear that he supports criminalising this inappropriate behaviour. I spoke to him about his amendments, and I am very pleased to be able to address them at this stage.

I wish to highlight the fact that this is a simple but important piece of legislation with a very clear purpose—to fill a gap in the law in the prosecution of those who upskirt. I am grateful to Members across the House who have engaged with this Bill as it has progressed, and I hope that that spirit will continue in the other place. We can all be rightly proud of this Bill, and I would like to take this opportunity to thank everybody who has contributed to it.

There has been much discussion about the sharing of upskirting images. This is an important issue and one that we need to tackle as a Government. However, the Bill is narrow, and is not the right place to solve the many issues that have been raised. We will work with the Law Commission to look at legislation in relation to the sharing of intimate images.

We have welcomed the opportunity to debate the purposes of the Bill and whether it will capture all those who commit this offence. The Bill should catch those who should be criminalised and ensure that the reach of the criminal law does not extend to where it should not extend to. The post-legislative review in two years’ time will help ensure that the offences that the Bill will introduce are as effective and as comprehensive as intended. I am grateful to the House for its support.

I want to touch on the notification requirements, which are an important aspect of the Bill. It is not an issue that we take lightly, which is why we have committed to place those who commit this offence for reasons of sexual gratification on the sex offenders’ register, subject to certain thresholds to ensure proportionality, focusing resource on those who pose a significant risk to the community. I am confident that the Bill strikes the right balance in this regard.

We have had an interesting debate on hate crime. Although these are important issues, this Bill focuses on a narrow issue and it is not the right place to bring forward small, narrow legislation. However, hate crime is an area that the Government intend to look at closely, and we will be asking the Law Commission to conduct a review of hate crime.

Let me conclude by thanking once again and paying tribute to the hon. Member for Bath (Wera Hobhouse) for introducing the Bill and Gina Martin who first raised awareness of this important issue. I also wish to mention the important work of my right hon. Friend the Member for Basingstoke (Mrs Miller) both in her work as Chair of the Women and Equalities Committee and more broadly to ensure that the important issues in this Bill have been debated in this House. It is also important to recognise the contribution of my hon. Friend the Member for Christchurch who put forward ideas in relation to the sex offenders’ register. I am grateful to the hon. Member for Bolton South East (Yasmin Qureshi) and the Opposition for their support in getting this important Bill through the House so quickly.

Helen Whately Portrait Helen Whately (Faversham and Mid Kent) (Con) - Parliament Live - Hansard
5 Sep 2018, 7:49 p.m.

I agree with my hon. and learned Friend about the good work done by campaigners in this area. I want to make one specific point: so often women and girls have been told that it is their fault if they are harassed, because it is their fault for choosing to wear a short skirt, for example. Does she agree that the Bill puts into law the important point that the person at fault is not the woman or girl who chooses to wear the short skirt, but the person who chooses to harass them and makes the poor choice to take a photo up their skirt?

Lucy Frazer Portrait Lucy Frazer - Hansard
5 Sep 2018, 7:50 p.m.

That is a very important point, and such legislation sends a message about how people should act in relation to women.

I was mentioning those who have played a significant part in this Bill’s progress. My hon. Friend served on the Committee, and I also thank the other members of the Committee; we had an interesting debate on the provisions before the recess.

I thank, too, the other parties’ spokespeople on justice: the hon. and learned Member for Edinburgh South West (Joanna Cherry), and the hon. Members for Belfast South (Emma Little Pengelly) and for Dwyfor Meirionnydd (Liz Saville Roberts). I worked closely with them as this Bill went through the House. I also extend my thanks to our hard-working Bill team, our private offices, our parliamentary private secretaries and the Whips, who can get overlooked at times. I also thank the Clerks and the other parliamentary staff for their sterling work and support on this issue.

It has been an honour to take the Bill from Second Reading through to today, particularly given the strong support from all parties across the House. I wish the Bill a safe and speedy passage through its remaining stages.

Yasmin Qureshi Portrait Yasmin Qureshi - Hansard
5 Sep 2018, 7:52 p.m.

I, too, want to place on record my thanks and appreciation to all Members who served on the Bill Committee. They were genuinely and passionately involved; it was not one of those cases where the Whips had forced them on to the Committee; Members were engaging in the debate and on this legislation. It is a small piece of legislation, but it is also important and does need to get on to the statute book as soon as possible. I am heartened to hear the news that the Minister was able to give that the Law Commission will be looking at this whole area of the law and at the recommendations. I hope that will be done as soon as possible and that we can implement its recommendations as soon as possible, too.

I also thank the House authorities, the Clerks and the Public Bill Office for all their work in putting the amendments together and their other tremendous work. I thank, too, my colleagues for being here today; a number of them do not need to be present, but they are still here because they are interested in this Bill.

Like the Minister, this is the first Bill I have taken from the beginning to the end in this House, and I, too, wish it a speedy journey and hope it will be on the statute book soon. It addresses a particularly vile and disgusting practice that needs to be brought to an end.

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

Full Debate: Read Full Debate
Department: Ministry of Justice
Legislation Page: Voyeurism (Offences) Act 2019

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

(Committee Debate: 3rd sitting: House of Commons)
Lucy Frazer Excerpts
Thursday 12th July 2018

(2 years ago)

Public Bill Committees
Read Full debate Bill Main Page
Ministry of Justice
Liz Saville Roberts Portrait Liz Saville Roberts - Hansard
12 Jul 2018, 11:30 a.m.

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.

Lucy Frazer Portrait The Parliamentary Under-Secretary of State for Justice (Lucy Frazer) - Hansard
12 Jul 2018, 11:35 a.m.

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.

Stella Creasy Portrait Stella Creasy (Walthamstow) (Lab/Co-op) - Hansard
12 Jul 2018, 11 a.m.

Will the Minister talk us through how that would be proven? The concern for many of us is that by not taking out the differences of purpose for the actual offender, we will create a difficult investigatory chain. Will she explain how, if she keeps the requirements around purpose in the Bill, she would expect the police and courts to prove that third-party sexual gratification was part of the process?

Lucy Frazer Portrait Lucy Frazer - Hansard
12 Jul 2018, 11:40 a.m.

I was going to come on to those issues. Does the hon. Lady mind if I deal with them in a moment? I will deal with how motivation will be proven in a moment, but I will just finish the point about the breadth of the provisions.

A number of criticisms have been made; I have mentioned the one about journalists, but there are others. It has been said that the Bill will not catch those who carry out this activity for a laugh, but if the person knows that the laugh is for the purpose of humiliating the other person, they will be caught. As Assistant Commissioner Martin Hewitt said on Tuesday, it is hard to imagine any other reason for which someone would take an upskirt photo that could not be prosecuted under the new offences, as drafted. As Ryan Whelan said:

“There is no requirement that the prohibited motive be the only motive”.

The hon. Lady also referred to the Crown Prosecution Service, but it is important to point out that the CPS stated:

“We anticipate that most offending will fall comfortably within these categories.”

Wera Hobhouse Portrait Wera Hobhouse (Bath) (LD) - Hansard
12 Jul 2018, 11:40 a.m.


Lucy Frazer Portrait Lucy Frazer - Hansard
12 Jul 2018, 11:40 a.m.

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 Portrait Liz Saville Roberts - Hansard
12 Jul 2018, 11:41 a.m.


Stella Creasy Portrait Stella Creasy - Hansard
12 Jul 2018, 11:41 a.m.


Lucy Frazer Portrait Lucy Frazer - Hansard
12 Jul 2018, 11:41 a.m.

I will take the intervention of the hon. Member for Walthamstow first.

Stella Creasy Portrait Stella Creasy - Hansard
12 Jul 2018, 11:41 a.m.

For clarity, the Minister set out that if we were dealing with someone who had taken the photos not for their own sexual gratification but perhaps to make money from them, we would need to prove third-party sexual gratification. Will she explain how she expects that to be proven, as opposed to the sexual gratification of the original offender?

Lucy Frazer Portrait Lucy Frazer - Hansard
12 Jul 2018, 11:42 a.m.

I am happy to do so. Obviously, each case will depend on its own facts, but one can imagine a circumstance in which a journalist is taking photographs for money and that is his intention. However, he sells a photograph—he has taken it with the intention of selling it on—to a pornographic website on the internet. It would be difficult to suggest that that photo was being put up for any purpose other than for other people’s sexual gratification.

Wera Hobhouse Portrait Wera Hobhouse - Hansard

I would like to come back to the issue of having a laugh. I think we all intend the Bill to be victim-centred, but could there not be an instance where people were having a laugh for bonding reasons and there was no direct connection with the victim? People could share an image of someone they did not know and have a laugh about it because it was a fun image, but the victim would not be involved, so we would not be able to prove that it was done for the humiliation of that particular person.

Lucy Frazer Portrait Lucy Frazer - Hansard
12 Jul 2018, 11:43 a.m.

I refer back to the evidence of both the Assistant Commissioner and the CPS. The Assistant Commissioner was clear that he could not imagine a circumstance other than the two purposes that are set out. If people take a picture that they think is funny, but the obvious reason that it is funny is that they are humiliating someone or laughing at the humiliation, it does not really matter whether the victim knows about that humiliation. The person is taking the picture because it is humiliating and people laugh at the picture because it is humiliating.

Alex Chalk Portrait Alex Chalk (Cheltenham) (Con) - Hansard
12 Jul 2018, 11:43 a.m.

Does the Minister agree that in this offence, as with so many offences, it is possible that there is a blend of motives? Even if the principal motivation is a laugh, the fact that there might be a subsidiary or subordinate motive that involves humiliating, alarming or distressing the victim would be enough in and of itself to make out the offence under the proposed formulation.

Lucy Frazer Portrait Lucy Frazer - Hansard
12 Jul 2018, 11:44 a.m.

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 Portrait Liz Saville Roberts - Hansard
12 Jul 2018, 11:44 a.m.

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 Portrait Lucy Frazer - Hansard

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.

I will turn to our concerns about the amendments, which would broaden the scope of the purposes of the perpetrator of the crime. One concern is that some people who we do not want to criminalise through the Bill might be caught by it. It might catch young children who are above the age of criminal liability, which is 10, but who do not realise the impact of their action and mean no harm when they carry it out. It might catch a doctor who attends a medical emergency where she needs to view under a patient’s clothing using equipment, but the patient is unconscious and cannot give consent. The doctor would be captured by the offences proposed by my right hon. Friend the Member for Basingstoke. The last example simply shows that it is not possible to think of every legitimate defence that individuals might have for viewing underneath someone’s clothing.

Break in Debate

Liz Saville Roberts Portrait Liz Saville Roberts - Hansard
12 Jul 2018, 12:11 p.m.

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 Portrait Lucy Frazer - Hansard
12 Jul 2018, 12:14 p.m.

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 Portrait Liz Saville Roberts - Hansard

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 Portrait Lucy Frazer - Hansard
12 Jul 2018, 12:17 p.m.

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 Portrait Liz Saville Roberts - Hansard
12 Jul 2018, 12:20 p.m.

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.

Break in Debate

Yasmin Qureshi Portrait Yasmin Qureshi (Bolton South East) (Lab) - Hansard
12 Jul 2018, 12:30 p.m.

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

Labour’s Justice team has worked closely with Gina Martin and her lawyer, Ryan Whelan, since last year. They have done a remarkable job in attracting public and media support, gaining nearly 100,000 signatures for their petition, and then getting the issue on to the parliamentary, and now the Government’s, legislative agenda.

Under great pressure, the Government have been forced to expedite this legislation to outlaw this disgusting practice, using unusual parliamentary procedures usually reserved for when there is a broad consensus on uncontroversial legislation. In normal circumstances, the Opposition would support some of the amendments. However, given that the campaigners seek a broad consensus, it is not our position to support the amendments on this occasion, as we do not want to create an excuse for the Government to delay the legislation, including during its passage through the Lords.

I understand why my hon. Friend the Member for Walthamstow tabled her amendment, but she will be aware that the sentencing guidelines allow judges to consider misogyny when sentencing. However, it is obviously not a specific aggravating feature, as race is. We really need the Government to bring in, on a separate occasion, a domestic violence Bill or a victims of abuse Bill, during the deliberations of which these matters could be considered. My hon. Friend would have our full support on that occasion.

Lucy Frazer Portrait Lucy Frazer - Hansard
12 Jul 2018, 12:32 p.m.

The hon. Member for Walthamstow has campaigned hard on a number of issues, including this one. I am grateful to her for her interesting and thoughtful speech and for giving us the opportunity to discuss these issues.

Upskirting is a terrible crime and an horrific invasion of privacy for those affected, and it is right that offenders are appropriately punished. Creating a specific upskirting offence sends a clear message to potential perpetrators that such behaviour is serious and will not be tolerated. The offence carries a maximum sentence of two years’ imprisonment, which is a serious penalty. It is in line with the sentence for racially aggravated assault, assaulting a police constable while resisting arrest and other sexual offences, such as voyeurism and exposure. Additionally, the Bill will ensure that the most serious sexual offenders are subject to notification requirements, having been put on the sex offenders register. Those are common with sexual offences and assist the police with the management of sex offenders in the community.

Statutory aggravating factors do not usually apply to just one or two offences, as would be the effect of the amendment. Judges already take into account, on a factual basis in sentencing, the circumstances of the case. Creating an additional aggravating factor for this new offence would make it inconsistent with all other sexual offences. There is no rationale for the amendment to apply specifically to this offence alone.

Similarly, it would be wrong to suggest that patterns of offending would not be considered in sentencing. For example, if in addition to taking a photo the offender went on to share it with others, the additional harm caused would be taken into account in sentencing. If the offender took hundreds of images of women, rather than just one, the additional harm or potential harm caused would be linked directly to the seriousness of the offence and would be taken into account in sentencing. If the offender has been convicted of a similar or the same offence previously, or if a prior offence indicated intent or aggression on the basis of gender, it must be considered by the judge in determining the appropriate sentence.

In addition, the independent Sentencing Council already publishes guidelines, setting out the factors that magistrates and judges should consider in determining the seriousness of offending and the harm caused for the purposes of sentencing. An updated version of the guidelines is currently the subject of a public consultation.

Stella Creasy Portrait Stella Creasy - Hansard

Will the Minister talk us through the message she thinks we are sending? We have religiously and racially aggravated offences where we specifically say—not for individual cases, but as a matter of course—that it is a challenge where someone is motivated by hostility around someone’s race or religion. What message does she think that sends, and why does she not think we should send the same message about someone who is motivated by hostility towards a certain sex?

Lucy Frazer Portrait Lucy Frazer - Hansard
12 Jul 2018, 12:36 p.m.

The hon. Lady raises an interesting and broad issue. It is a conversation that we need to have and that it is good to have, but the question before us today is the legislation and the appropriateness of the measures we are putting forward in this Bill, which is about upskirting. It is a narrow issue. I recognise her frustration and desire to raise the issues she cares about in a broad sense in a narrow Bill, but as my hon. Friend the Member for Faversham and Mid Kent said earlier, as legislators—the Government, the Opposition and Parliament—we have an obligation to ensure that the legislation we are putting forward, debating and voting on is appropriate.

Alex Chalk Portrait Alex Chalk - Hansard
12 Jul 2018, 12:36 p.m.

Although I have a significant amount of sympathy for the points made by the hon. Member for Walthamstow, is the point not that the law would be made to look extremely foolish if sex was a statutory aggravating factor in respect of an offence of upskirting, but not in respect of rape or sexual assault? In those circumstances, the inconsistency would bring the law into disrepute. Does the Minister agree?

Lucy Frazer Portrait Lucy Frazer - Hansard
12 Jul 2018, 12:37 p.m.

That is a good point to make, as my hon. Friend’s points generally are. When we legislate, it is important that we do so with care. We should legislate when we have done a proper review of the issues we are legislating on and bring in appropriate measures within the confines of the Bill under discussion.

Stella Creasy Portrait Stella Creasy - Hansard
12 Jul 2018, 12:37 p.m.

I do not disagree with the Minister. I believe that misogyny as an aggravating factor could be ascribed to a number of offences. If she will forgive me, I will not take lessons from her about legislating. As an Opposition MP, it is not within my gift to timetable the legislation to be able to deal with these things. She said it is an interesting conversation, but will she commit to reviewing the anomaly we are pointing out with the amendments? Right now, we do not protect sex in the same way that we protect race and religion within sentencing. Through that review, the points that the hon. Member for Cheltenham and I are making could be addressed. Will she at least commit to that review? It would be welcome.

Lucy Frazer Portrait Lucy Frazer - Hansard
12 Jul 2018, 12:39 p.m.

The hon. Lady says she is a Back-Bench MP and so does not have the power or ability to change laws, but let us remember how this legislation came before the House. It was a private Member’s Bill brought forward by a Back-Bench MP. The Government have supported the Bill because it is the right Bill to take forward. It identifies a gap in the law, and we are bringing it forward.

I would also like to touch on the statutory guidance referred to in the hon. Lady’s new clause. It is important to ensure that the legislation is applied effectively by police and prosecutors so that this behaviour is tackled robustly and consistently. I should point out that we already have that in train. Following a request from the previous Lord Chancellor to the then Home Secretary and then Attorney General, work is under way to develop and update the guidance on upskirting, without the need for legislation to command us to do so.

We are committed to working together across the Government to ensure that the new offences and the existing law are used effectively to tackle upskirting. The Home Office is working with the College of Policing to develop police guidance on the powers that currently exist to tackle some cases of upskirting, including outraging public decency. The guidance will be further updated to capture the proposed changes to the law in the Bill. The guidance will be aimed at all frontline officers, control room staff and investigators and will be created in consultation with the National Police Chiefs’ Council and the CPS.

The previous Attorney General discussed this issue with the DPP, and they are clear that all cases involving upskirting need to be considered carefully. The CPS will ensure that guidance is updated to reflect the proposed new offences, as well as to raise awareness of existing offences.

Stella Creasy Portrait Stella Creasy - Hansard
12 Jul 2018, 12:40 p.m.

I am going to push the Minister on the point about a review. It is wonderful to see a Back-Bench private Member’s Bill get Government attention. All of us recognise the circumstances in which that was made an imperative, but the reality is that the Government set the timetable for dealing with these issues. If she is serious that these are issues that the Home Office is updating guidance on, and that people are starting to look at this anomaly around misogyny versus other forms of hate crime, will she commit to a review? Will she commit to going away with her assistants and looking at these issues, and asking whether there is a case for change, such that she might bring forward legislation herself? Otherwise, these are warm words and, as the suffragettes taught us, it is deeds, not words, that matter.

Lucy Frazer Portrait Lucy Frazer - Hansard

Just to clarify, the guidance I was talking about is the guidance in relation to upskirting—that is what is being updated. The Government always keep matters under review. We keep criminal law under review. I am sure that the Home Office, where matters affect it, also keeps issues under review. While I recognise the intent behind the amendments, I ask the hon. Lady not to press them.

Stella Creasy Portrait Stella Creasy - Hansard
12 Jul 2018, 12:43 p.m.

It is interesting whether people put their money where their mouth is, and how we recognise when we can make progress. Too often, especially when it comes to women’s issues, the question is to do it at some other time. I am sorry to hear the Minister not committing to a review. I would happily have worked with her on that review and the evidence. I fear that the police chiefs will be ahead of her in committing to make the recording of misogyny as a hate crime something that the police do, which would be very welcome. I am also sorry that Labour Front Benchers are not with us on the importance of making progress where we can.

I have no desire to split people on this, but I think there is support for it. I put the Minister on notice, however, that it will come back on Report. I also tell my Front Benchers that it will come back on Report, and I hope that they will be more positive.

The other thing I am worried about is that on a Bill about controlling women, it appears that some people have been told that amendments in Committee delay things. That is clearly not the case and we would not want to send a message that we are trying to deal with the symptoms, rather than the cause—which is what misogyny is—and that we are going to control women and restrict what they can change. It took 100 years for some women to get the vote. Let us not wait 100 years to make legislation that works for women. At this point, however, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.