Policing and Crime Bill — House of Lords, 2016-11-16
Topic: Law and Crime
Jonathan Marks (Liberal Democrats, Centre to centre-left): My Lords, with the consent of my noble friends Lord Paddick, Lady Hamwee and Lady Grender, and at their request, I rise to move and speak to Amendments 216 to 219 in this group. It was intended that my name should be added to Amendments 216 to 219A, but there has been a disconnect between intention and implementation, for which I apologise. Nevertheless, I support these amendments No one now disputes the need for the law to outlaw revenge porn. Disclosing private sexual photographs or films, usually acquired during a relationship, and publishing them on the internet with intent to cause distress to a former partner, is nasty and hurtful behaviour. To the victims it causes untold pain, embarrassment and humiliation. It is an appalling violation of privacy and a gross breach of trust Sections 33 to 35 of the Criminal Justice and Courts Act 2015 came into force in April of that year, and there were 200-plus prosecutions in the first year. To that extent, the criminalisation of revenge porn has been a success. However, responses to BBC freedom of information requests showed that out of 1,160 reported instances between April and December 2015, no action was taken in no less than 61% of cases, and many of the victims were children, some as young as 11. Many cases were not prosecuted because of insufficient evidence or because the victim did not proceed with the complaint, but of course that does not mean that the incidents did not occur. We are seeing an ever-increasing use of the internet to hurt people, often hiding behind anonymity or disguised identity. It is reasonable to assume that revenge porn will continue to be posted on the internet, despite its criminalisation Especially worrying is the persistent and, I suspect, increasing prevalence of the practice known as sexting, particularly among children and young people. In addition to pursuing offenders through the criminal law, we must ensure that we increase public awareness and that police forces take these offences seriously—consistently seriously across the country—and develop a social culture which treats this behaviour as beyond the pale. An NSPCC study in 2012 estimated that between 15% and 40% of young people had been involved in sexting; that much of that was under pressure, whether peer pressure or personal pressure from people with whom they were involved in a relationship; and that many images were shared with others by those who received them without the consent of their subjects. There is no evidence that with the increasing use of social media by young people, that number has decreased. Of course, there is a strong link between sexting and revenge porn These amendments are designed to tighten up the law. They also to a large extent bring the law into line with the equivalent legislation in Scotland, the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, where the wider provisions have worked well. Proposed subsections (1) and (2) of Amendment 216 would extend the scope of the disclosure offence to bring photographs and films of breasts and buttocks within the range of sexual images and therefore within scope of the offence in the same way as such images of the victim’s exposed genitals or pubic area. That is in the Scottish legislation and it is quite clear from the evidence we have seen that such images are likely to cause distress, particularly to young girls, in the same way and to the same extent as the images presently within the scope of the Act. Of course, disclosure of such images would be an offence only if the threshold criteria were met: that the image was private, that it was disclosed without consent, and that it was disclosed with the intention of causing distress. There is no reason for the legislation to restrict the images that are not to be disclosed in the way that it currently does In the second part of the amendment, proposed subsections (3) and (4) would remove Sections 35(4) and (5), which are the current exception in the legislation for photographs or films that are created by altering originals or combining them with other photographs or films in such a way as to bring them within the statutory definition of "private" and "sexual", so doctoring films and images to make them offensive. We do not accept the need or the justification for that exception. If a photograph or film as finished and published has the effect of a private and sexual image and is disclosed without the consent of the subject and with the relevant intent, I suggest that is ample reason to bring it within the section rather than to except it from it The first two subsections of Amendment 217 would amend Section 33 of the 2015 Act to extend the disclosure offence to bring threats to disclose private sexual photographs and films within the scope of the offence, as well as actual disclosure. There can be no reason to exclude threats to disclose from the legislation and, although it is true that the actual disclosure is what causes much of the harm, a threatened disclosure by the holder of sexual images of a victim can be used to put real and painful pressure on the victim, usually a previous partner, causing very real distress. That is why the amendment would bring threatened disclosures into scope Secondly, proposed subsection (3) would broaden the category of the unnecessary emotional consequences for the victim necessary to sustain a conviction so as to include "fear or alarm" as well as "distress" as an alternative form of consequence. That extension is particularly relevant in the context of threatened rather than actual disclosure Thirdly, the amendment by the proposed subsection (3) would also make proof of recklessness regarding the distress, fear or alarm likely to be caused sufficient to found a conviction as an alternative to proof of intention. Again, this is in the Scottish legislation. In this context, reckless disclosure means disclosure that is deliberate but that is made entirely without regard to the distress, fear or alarm that it is likely to cause to the victim. The perpetrator knows he is making the disclosure. He should not escape criminal liability just because the prosecution cannot prove that he positively intended its obvious consequences. We suggest that he should be equally criminally liable if he turns a blind eye to those consequences. It is right that intention should be supplemented by guilt in respect of disclosure that is reckless as to the likelihood of the harm it will cause. The deletion of Section 33(8) that is proposed by subsection (5) is also necessary to achieve that end Lastly, the proposed subsection (4) in the amendment would introduce a clear and explicit ban on promoting, soliciting or profiting from photographs or films that are themselves in breach of the Act. I apologise that, as drafted, the use of the words, "reasonably believed to have been disclosed without consent", is perhaps inappropriate; I am not sure that reasonable belief is correctly used there. I suspect the proposed new clause would better read if it were expressed as, "disclosed without consent in the knowledge or belief that they had been so disclosed", and we would redraft subsection (4) in that regard before Report Amendment 218 would introduce a provision for compensation for victims of offences under these provisions. It is plainly right that these revenge porn offences should give rise to a power to award compensation, but I would add to that self-evident assertion two particular points. First, this offence is unlikely to give rise to civil proceedings— victims will generally be unwilling to go through civil cases because of the embarrassment that could cause, and they will rarely have the means to do so Secondly, there will be many cases of revenge porn offences where the perpetrator is gainfully employed and will have the means to pay compensation ordered by the court for the hurt he has caused. We suggest that a power to award compensation, to include compensation for anxiety as well as for direct financial loss, is therefore an important part of a judge’s power to deal with an offender and publicly to recognise the harm caused by the offender directly to the victim.