My Lords, I thank my noble friends Lord Marks, Lady Grender, Lady Brinton and Lady Barker for Amendment 98 on the issue of revenge pornography. As the House has been told, I recently met with my noble friends to discuss this amendment,
which I believe seeks—and this has been confirmed in the course of the debate—to achieve the same aim as the Government’s Amendments 103 to 105, 113 and 186 to 188. We particularly discussed whether the government amendment’s definition of “sexual”, when defining the material that the offence will apply to, is sufficiently explanatory.
My noble friend Lord Marks asked me, in the course of the debate, whether the additional subsections added anything to “sexual” or, as he put it, widened the ambit. I confirm that they do. The use of the word “or” makes that sufficiently clear. A photograph or film is sexual if it shows an individual’s exposed genitals or pubic area or shows something that a reasonable person would consider to be sexual either because of its nature or given its overall content. However, it would not be helpful to go further than this on the face of the statute or now by, for example, listing particular types of sexual material that would be covered. Such a list is unlikely ever to be exhaustive and its inclusion could potentially hinder the judiciary’s ability to interpret the wording of the offence in a flexible way.
My noble friend’s amendment is constructed in a rather different way to the government amendment and omits some important information, but I need comment very little on those details in view of the fact that, after some useful discussions, it has now been accepted by my noble friends on the Liberal Democrat Benches that the government amendment captures what this offence is all about.
The disclosure of this sort of material is undoubtedly extremely distressing for victims. They feel humiliated and are left deeply distraught both by the disclosure of very personal, sexual images of themselves and by the breach of trust involved in sharing images that had been considered private.
I pay tribute to my officials for working extremely hard on what is a very difficult offence to capture appropriately. We all know what this is aimed at, but it has been a considerable challenge to reflect it in the legislation. My officials have been carefully considering this problem with the relevant agencies and interested stakeholders such as the NSPCC and Victim Support. The testimonies we received, together with the efforts of a number of parliamentarians—many of whom have been identified in this debate—confirmed our intention to create a specific offence that will punish this pernicious practice.
The current law can already punish instances of this behaviour in certain circumstances. A number of offences can be used, and the recently updated guidance from the CPS has made clear that, where intimate images are used to coerce victims into further sexual activity, offences in the Sexual Offences Act 2003 can be used both where the victim is an adult and where they are a child.
This offence, however, will target very different behaviour: namely, the malicious disclosure of private sexual photographs or films. The offence seeks to target material, the disclosure of which would have the potential to cause the most harm to an individual. It will therefore apply to the disclosure of private sexual photographs or films of people, such as those which
show them engaged in sexual activity or depicted in a sexual way where what is shown is not the kind of thing usually seen in public. In determining whether the picture is sexual, the court will be required to take into account both the nature of what is shown and the context provided by the whole of the pictures’ content. To commit the offence, the disclosure must take place without the consent of at least one person featured in the image and with the motivation of causing that person distress.
I will respond to a query posed by the noble Baroness, Lady Thornton, about whether this is regarded as a sexual offence in the same way as an offence in the Sexual Offences Act 2003, such as a sexual assault or voyeurism, is regarded. We absolutely agree that revenge porn is a very serious issue, with the potential to cause great harm. That is why we have introduced this criminal offence, with a substantial period of imprisonment. However, we do not think that it is appropriate to view it as a particular sexual offence in the same way as these other offences. Research in previous cases has shown that revenge porn—the emphasis here being on “revenge”—is perpetrated with the intention of making a victim feel humiliated and distressed rather than to obtain sexual gratification, which is what defines an offence as sexual. Of course, the definition says, “with the intention” of causing distress, so you do not have to have evidence of distress or some rather unnecessary distinctions about what is distress, or anger, and so on. Therefore the intention is there, and revenge lies behind it. That is not to diminish the seriousness, but more accurately to characterise what is the mischief we are aiming at.
The offence will apply equally offline as well as online—not just to images transmitted electronically but also to those which are disclosed in more traditional ways.
These amendments provide three defences available to those charged with the offence. First, it will be a defence for the defendant to prove that they reasonably believed that the disclosure of an image was necessary for the purpose of preventing, detecting or investigating crime. That, I hope, is self-explanatory, and finds its echoes in other legislation.
Secondly, where an individual adduces sufficient evidence that the disclosure in question took place in the course of, or with a view to, the publication of journalistic material and they reasonably believed that, in the particular circumstances, the publication of that journalistic material was, or would be, in the public interest it will be for the prosecution to prove the contrary. This defence will, in the rare cases to which we expect it to apply—and rare they will be—enable journalists and their sources to disclose images, for example with a view to publishing a commercial newspaper story, if they genuinely and reasonably believed there was a legitimate public interest in the publication. This is a stringent test but we believe it is necessary to ensure that the offence will not inappropriately interfere with press freedom.
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The third defence applies where a defendant can show that he or she reasonably believed that the image had previously been disclosed for reward, such as in
the form of commercial pornography, and that they had no reason to think that that previous disclosure for reward had been made without the consent of the victim. While the dissemination of such material might be distressing, we do not believe that the sharing of publicly available material should be regarded in the same way as private material, although of course if such publicly available material is used to coerce, threaten or harass the victim, other offences, depending on the circumstances, may be committed.
The focus of the offence is on photographed and filmed material which record events as they happened in real life. The offence is drafted to ensure that it will apply to material which appears wholly or partly photographic and originates from, or includes, an actual photograph or film recording. So an offence will still be committed if the private sexual part of an original photograph is transposed onto a new background. The offence will also still be committed if the original photograph or film has been manipulated in some way, for example by cosmetically enhancing it.
However, the offence will not be committed if the film or photograph disclosed only becomes private and sexual, or if the victim only appears to be depicted sexually, as a result of any manipulation or as a result of the combining of different images together. For example, the offence would not apply to an image that consisted of an individual’s head that had been superimposed on someone else’s body in order to make it look as if that person was taking part in sexual activity. Although such images can still be distressing to those featured, we do not believe that they have the potential to cause as much harm as disclosure of photographs and films that record real sexual private events.
The offence, which will extend to England and Wales, will be triable either way and punishable with a maximum custodial sentence of two years.
The amendment before you is the result—as we have heard—of much detailed consideration and discussion and is, I hope, carefully constructed to target the specific behaviour in question. I believe this offence will provide an important means of redress for victims of this cruel behaviour, and I am grateful to the right honourable Maria Miller MP and Julian Huppert MP in the other place for bringing this to the Government’s attention. The issue was subsequently debated in this House in Committee and I am similarly grateful to Peers from all sides of the House who took part in that discussion and those who have taken part in the debate today. I am also grateful to those who have no doubt had something to contribute but have sat on their hands out of consideration for the economic disposition of this amendment. I hope that the Government’s amendments will allow my noble friends—and I think they will—to withdraw the amendment.
I turn to Amendment 106 tabled by the noble Baroness, Lady Thornton. Noble Lords approved in Committee the inclusion of Clause 31 to extend the existing extreme pornography offence in Section 63 of the Criminal Justice and Immigration Act 2008 to criminalise the possession of extreme images that depict rape and other non-consensual sexual penetration. Our decision to extend the offence in this manner
followed a campaign for reform by some of the country’s leading women’s rights groups, as well passionate arguments put forward by the noble Lords in this House. The noble Baroness’s amendment would insert a requirement for the Secretary of State to arrange an independent review of the impact of the extension to the existing extreme pornography offence 18 months after the section making the extension would come into force. The Secretary of State would then be required to lay a report showing the results of the review before both Houses.
With respect, I think that such a provision is unnecessary. As I have explained previously, the Government have worked hard to ensure that this extension to the existing extreme pornography offence correctly targets the intended material. I recognise that the noble Baroness has expressed concerns about that. However, the Government already keep the general criminal law under review and the same will be true in this case. Indeed, I hope that the Government’s response to the challenge of revenge porn shows a degree of agility on their part. I am glad that, in the face of some pretty sustained criticism of the Ministry of Justice from the Front Bench of the party opposite, there is an acknowledgement of an open-door policy, referred to by my noble friend Lady Berridge. The Ministry of Justice tries to respond and will continue to try to respond to challenges. Statistics showing the number and nature of prosecutions for this offence are kept, and we work closely with key stakeholders and colleagues, such as the Crown Prosecution Service, and with the police to ensure that laws are working effectively and fairly.
I assure noble Lords that we will continue to monitor the law in this area, and I am sure that the noble Baroness will keep us up to the mark in this regard, including on the other important changes made in Clause 31. We will continue to listen to the voices of campaigners and parliamentarians who may have concerns about this sensitive and important area of the law, as well as monitoring the effectiveness of these changes.
In response to an observation made by my noble friend Lady Brinton, of course those in schools will be well aware of sexting and the developments in technology and how they are abused. I think that it would be unwise for me, at the Dispatch Box, to commit to particular responses. However, she has drawn the attention of the House to the matter, and the Department for Education and head teachers generally will no doubt be making themselves aware of these developments. I therefore hope that, given the assurances, the noble Baroness will be prepared not to press her amendment.
Finally, I will speak to government Amendment 124, tabled in my name. The amendment increases the time limit for bringing prosecutions for offences under Section 127 of the Communications Act 2003. The Government are concerned that this restricted time limit gives insufficient time to gather the appropriate evidence for communications offences, such as trolling, that may be captured under this offence. They have therefore decided to increase to three years the time within which offences under Section 127 of the 2003 Act must be prosecuted, so long as the prosecution is brought within six months of the prosecutor having sufficient evidence to justify proceedings.
As noble Lords may well be aware, the Government accepted an amendment tabled by Angie Bray MP in the other place—now Clause 29 of the Bill. One effect of this new clause is to make the related offence under Section 1 of the Malicious Communications Act 1988 a triable either way offence, with the consequence that the time limit for bringing a prosecution for a summary offence will no longer apply to it. This amendment reflects one of the intentions behind that change by similarly providing a longer time limit within which prosecutions for offences under Section 127 of the Communications Act can be brought. This will mean better protection for those at risk of becoming victims of a Section 127 offence, including vulnerable young people. Allowing more time for prosecutions to be brought will enable a greater number of prosecutions. The Government remain committed to improving the safety of children online and have a strong track record in working with the internet industries and a range of other stakeholders to drive progress.
As I am sure all noble Lords will agree, protecting children and vulnerable people online is of utmost importance to the Government and society as a whole, and the Government want to remove any unnecessary barriers to prosecutions in this area. This amendment will ensure that there is sufficient time to gather the evidence needed and prosecute those who use threatening or abusive behaviour.
I hope that this group of amendments represents a concerted effort on the part of a number of parliamentarians to produce a good response to the challenges that new technology has presented in this sensitive area. I hope that the House will, in due course, agree to Amendments 103 to 105, 113, 124 and 186 to 188.