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

Mary Robinson Excerpts

Tuesday 10th July 2018 Public Bill Committees

[Laura Smith (Crewe and Nantwich) (Lab)]

Q Women’s Aid and Professor Clare McGlynn have argued that the Bill’s scope needs to be extended so that victims of all image-based sexual offences have the right of anonymity in court. What are your views on this?

Gina Martin: Again, we need to deal with a lot of valuable issues. Do I think this Bill needs to cover all of them now? No, I think this is an upskirting Bill and the most important thing is that we cover this problem quickly and simply, and afford women the protection they deserve as soon as possible. I would argue that this is a Bill about upskirting and that those issues that Clare has brought forward should be dealt with properly and with scrutiny at a later date.

[Mary Robinson (Cheadle) (Con)]

Q It was really disturbing when we discussed this and you relayed how it had happened to you. Part of this was the pressure of people around you. It was quite a physical event for you. There seem to be two elements to this: the upskirting and the taking of the photograph to humiliate you and the passing around. How do you view those two incidents in terms of the humiliation aspect, or is there no difference at all?

Gina Martin: It is very difficult. I think the feeling of harassment was compounded. I have not separated out in my mind which I think was worse, because it was just a very horrible blurry event. I just hated all of it, if I am being totally honest. That is my very human response to it.

[Stella Creasy (Walthamstow) (Lab/Co-op)]

Q Hello Gina. One of the debates in relation to the Bill is about the concept of motivation, about whether we need to set out in law reasons why people do what you are talking about and, therefore, why that is wrong. We are debating whether we need to do that or simply to say that this, in and of itself, is wrong whether a person does it because they want to humiliate someone, because they find the pictures sexually exciting or because they will make money out of them. What is your view on that?

Gina Martin: That is a question that is more for a lawyer. I am not a lawyer, and I am not going to sit here and talk about the legislation in detail. One thing you touched on there was monetary gain. I would like to say categorically that of course I would like to see that we could prosecute at some point the paparazzi and photographers who do this. I am of the understanding that that needs to be done very, very carefully, with a lot of detail, to ensure that there are no unexpected consequences. I do not necessarily think that we should delay this process to look at that specifically—that is for another time.

Also, having worked specifically in the media for a very long time, I am very aware that if one celebrity decided to prosecute and raised charges using outraging public decency against paparazzi that would change very quickly. There is a big amount of education that needs to go on in that area. That is my feeling on that.

--- Later in debate ---

[Helen Whately]

Thank you.

[Mary Robinson]

Q Just on that point, where would the balance be? We are differentiating between a younger person fooling around, taking photos and sharing them and someone who has a different, more sinister intent, but would the impact on the person who is the victim not be the same? How are we going to get the balance between thinking about the intent of the person committing the crime and the impact on the victim? After all, the victim comes forward because of the impact on them.

Gina Martin: In each situation that this happens in, regardless of where it is, the age of the person and so on, it is very hard for me to say specifically where it is on the spectrum of how they feel. I have friends who it has happened to. They half did not know it was happening, but it happened to them and they were embarrassed and they left. Their instance was not as violently violating as mine felt. It is difficult for me to know, but that is something where the Bill needs to look specifically at each person’s circumstance. Currently we cannot do that.

[Mary Robinson]

Q At the impact on the victim.

Gina Martin: Yes.

[The Chair]

We are doing commendably well, but we are going to run out of time, so I will call Stella Creasy and then the Minister.

--- Later in debate ---

[Kate Hollern (Blackburn) (Lab)]

Q Clause 2 of the Bill includes motives, such as obtaining sexual gratification and causing humiliation, alarm and distress. How difficult will it be for the police to secure a prosecution by establishing the motives?

Assistant Commissioner Hewitt: Establishing motive is always a challenge in any sort of crime. You will clearly have the digital evidence—that is, whatever photograph was taken. That will take you some way towards motive. Adding the element of alarm and distress is important, because the legislation should be very victim focused. Clearly, I would suggest, any person who realised or became aware that someone had taken a photograph in those circumstances would be distressed by it, so you would be able to use that.

Equally, one of the other factors we have to consider is that, often, these photographs find their way on to websites. There are websites where people will upload these kinds of photographs. Again, there is a further trail that takes you towards motivation on behalf of the person who has committed the offence.

We will always have to prove motivation, but the alarm and distress element is very strong. I suggest that, with the right kind of questioning, the right approach to interviewing and the digital evidence you would have, you would be in a reasonable place to assert the motivation.

[Mary Robinson]

Q When Gina Martin brought this to the police in the first place, she was able to get somebody on to it straight away, because there was a police officer there. The first thought was that it would be treated through the Offences Against the Person Act 1861 more generally, yet that did not come to anything. Is that because it was not previously covered or because it is difficult to prove a case? Are we going to have to guard against simply getting into another piece of legislation where it is difficult to prove the case again?

Assistant Commissioner Hewitt: I don’t think it is about difficulty. For me, that is the gap this legislation can potentially fill. The two pieces of legislation that you would most likely try to use as it currently stands are, first, outraging public decency legislation, which—let’s be honest—even with the language used in that you realise it is not necessarily fit for the time that we are now. In the first instance, that has to happen in a public place. It also requires witnesses to have been present at the time where the offence took place. An important point coming from my sexual offences lead is that it is not, per se, a sexual offence, and I think these should be treated as a sexual offence. We also have the voyeurism legislation, which has been used, but again, that requires a private setting and seeing and filming a private act.

I do not think the legislative framework as it stands is adequate for the issue that we have. It is another example where the advances and availability of technology—let’s be clear, I would guess that everyone at secondary school probably has a smartphone with them all of the time, which means they have a camera with them all of the time. This means they have the opportunity to commit an offence, amongst others. There are a number of what I believe are sexual offences that are image-based—the so-called sexting and the revenge porn as it is popularly called—all of these offences where the ability for people, universally, to take quality images quickly and potentially share those images takes us to a place where, at the moment, the legislative framework does not give us the ability to deal with that effectively. That is the gap. You always have to prove a crime and there will be always be occasions when that can be challenging. We can deal with it much more effectively with clauses that are specifically focussed on this type of offending.

[Mary Robinson]

Q Thank you for that answer. You seem to be implying that there is more scope for expanding this list of offences.

Assistant Commissioner Hewitt: I just think that this is a specific issue that needs to be dealt with. I don’t know if I really want to get into that here. It is worth making the point that we collectively need to focus on a number of image-based sexual offences. People are committing offences in ways they never did before because of the universality of the technology. Legislation can never keep up with every change, but the technology that exists, and our ability to obtain digital forensic evidence and to check things in the way that we can around offending, takes us to a place where we need legislation that fits the nature of the criminality.

[Liz Saville Roberts]

Q Thank you Assistant Commissioner for the information so far. What interests me is that you raise the issue of the exponential growth in digital imagery offences, and you also touch on the growth of 8% to 9% of the sex offenders register. Obviously we have to keep a balance to take into account capacity, but nonetheless we should not be restricting what we legislate for. Growth should not be a motivation for us to cease legislating. How could you advise us to keep the appropriate balance? Looking at this growth in digital imagery crime and in the sex offenders register, the wider question is: what practices need to be changed, and what support do police forces need in order to enforce and bring evidence for successful prosecutions?

Assistant Commissioner Hewitt: There is no doubt that we have been wrestling for some time with a dilemma in exactly the way you describe. Developments in technology have enabled a whole range of offending that previously would still have taken place, but in a very restricted and challenging way.

Consider the issue of indecent images: previously it was difficult for somebody to access indecent images. They had to find their way into very specific websites and undertake a series of acts to get there and do what they did. Indecent imagery is now almost readily available in so many spaces, and this means that far more people are accessing it either deliberately or inadvertently. Equally, there is the technology we use to spot when particular computers are accessing that imagery. We are in a situation in which there is a real volume challenge for us. The legislation point needs to be clear at the outset that doing this is illegal, and in this instance we do not have clarity around the specific issue of upskirting, so we need legislation that clearly says that—in the circumstances described—“This is an illegal act”.

The question then is how we respond, and how the system deals with that illegal act. In the first instance it would require awareness, training and understanding to be shared between police forces so that all officers were aware of the new legislation—as we would do with any new piece of legislation—and so that they understand what their powers are and what needs to be done. Then you get into the use of discretion and how you apply the legislation, as you would under any circumstances. For example, where it involves a 15-year-old and a 15-year-old, we need to think and then apply the usual logical approach that would be applied to whichever outcome you were seeking. The system would need to be able to look at whether certain offences were suitable for a caution or some form of warning. We do not want to be dragging loads of young people into the criminal justice system unnecessarily. With image-based sexual offences, you always have that challenge of trying to understand the level of risk presented by the offender, whether it is the viewing of images or upskirting. Some offenders will do no more than take a photograph or view an image, but some may be contact offenders or be escalating in the nature of the offending, and our challenge is always to have systems and processes in place that allow us to try to identify what the risk level is. Even among those registered sex offenders I spoke about, there are clearly RSOs at the top end who are the highest risk RSOs for whom we have significant control mechanisms, and then others at the lower end, where there is a much lighter level of control.

What you wrap into that, as I said at the very beginning, is what we do in terms of publicity and getting the information out there, not just to the police but to the broader public, about what this legislation says, why it is being done and what it says about what we expect and do not expect. I think that will have a really positive impact. You then broaden that out to all the spaces where this offence might take place, for people to become more aware of it. Looking at the offences we have dealt with most, there are obviously quite a few on transport systems, but they are also in supermarkets, shops and places like that. There is an awareness thing that can go on, and then it really is about dealing proportionately with the offending.

All those things are challenges, but I do not think that any of them take us away from the fact that these acts are illegal—they should be very clearly and specifically illegal. Particularly in this instance, they are also incredible distressing and harmful to the victim, but we have to try to find an ability to operate proportionately, and that gets us into some difficult debates about the images online.