My Lords, I support all the amendments in this group. However, what I have to say on my own amendments will take up enough time without straying on to the territory of others. I ask noble colleagues to please accept my support as read. I thank the Minister for meeting me and giving context and explanation regarding all the amendments standing in my name. I also welcome the government amendments on intimate image abuse in another group and on digitally altered images, which impinge directly on the cyberflashing amendments.
It is clear that the Government’s heart is in the right place, even if their acceptance of a consent-based law is not. I also thank the Law Commission for meeting me and explaining the thinking behind and practicalities of how the new law in relation to cyberflashing will work, and how the existing court system can help, such as juries deciding whether or not they believe the defendant. Last but definitely not least, I acknowledge the help that I have received from Professor Clare McGlynn, and Morgane Taylor from Bumble—both immensely knowledgeable and practical people who have inspired, informed and helped throughout.
I start with Amendments 5C and 7A in my name and that of the noble Baroness, Lady Finlay. I understand that the Government are following the advice of the Law Commission in refusing to accept consent-based defence, but I point out gently that this is something that the Government choose, and sometimes choose not, to do. Although the Law Commission consulted widely, that consultation did not show support for its proposals from victims and victims’ organisations. I am still of the view that a consent-based requirement would have prevented many unsolicited images being received by women and girls. I still worry that young girls may be socialised and sexualised by their peers who say that they are sending these images for a laugh. These girls do not have the maturity to say that they
do not find it funny, but pretend it is okay while cringing with humiliation inside. Consent-based legislation would afford them the best protection and educate young girls and men that not only are women and girls frequently not interested in seeing a picture of a man’s willy, but girls think differently from boys about this. Who knew?
I also believe that a consent-based law would provide the most suitable foundation for education and prevention initiatives. However, I have listened to the Minister and the Law Commission. I have been told that, if it got to court, the complainant would not be humiliated all over again by having to give evidence in court and admit the distress and humiliation they felt. But according to the Minister, like the new intimate image amendment tabled by the Government themselves, it is up to the Crown Prosecution Service to follow it up and, after making their statement of complaint, my understanding is that the complainant does not have to take part further—more of that later. However, given the current success rate of only 4% of even charging alleged perpetrators in intimate image abuse cases, I worry that not only will victims continue to be reluctant to come forward but the chances of prosecution will be so slim that it will not act as a deterrent. We know from experience of sharing sexual images without consent, that the motivation thresholds have limited police investigations and prosecutions due to the evidential challenges. That is what the Law Commission has recommended as regards the introduction of a consent-based image offence.
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The only thing that would give me hope is a major education or re-education campaign in schools and society. Will the Minister confirm that such an education and publicity campaign will happen? Will there be a budget allocated to carry it out? I should like it on the record that the Government will produce the campaign within six months of the passing of the Act. Similarly, the Minister has assured me that he will monitor carefully the success of the implemented Act. Please will he make those assurances in his reply to this group and give some kind of timescale?
I come to the recklessness amendment, Amendment 6, which is new. It was originally drafted by Professor McGlynn and Maria Miller at the Commons stage to give a kind of compromise on a recklessness standard, but it has not yet been considered by either House. The specific wording follows recent laws on upskirting and down-blousing in Northern Ireland in the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022. The wording has been tested, reviewed and approved by the justice ministry and the Northern Ireland Assembly. In the Bill, there are two ways in which to prove the cyberflashing offence; first, if it is proved that the defendant either intended to cause distress; or, secondly, if the defendant was motivated by sexual gratification and was reckless in causing distress. My amendment adds a third option. The defence will be made out if the defendant was
“reckless as to whether B will be caused alarm, distress or humiliation”
and that the victim was so harmed. This third option will cover a wider range of cases, meaning that there
would be more opportunities for prosecuting this harmful practice and therefore affording greater protection for women and girls.
Recklessness means showing that a defendant was aware of a risk of causing harm but went on to take that risk anyway. There are two arms to the recklessness amendment. First, a defendant is reckless as to causing distress, alarm or humiliation and, secondly, the victim is alarmed, humiliated, et cetera. The first arm, the recklessness, is easier to prove than direct intention. The perpetrator can intend to have a laugh with his friends or send an image for a dare but is reckless as to causing distress. That means that he recognised there was a risk of causing distress but carried on anyway. In many situations, recklessness may be relatively easy to prove, as you would say that, of course, most people would know that sending images of this kind would be likely to cause distress and so on, unless you knew that the recipient would be receptive to it because you checked before sending. I am not going to talk any more about consent-based matters. I am done there. I have made my point. What many men do not get, though, is that girls—particularly girls—and women do not want to receive these images. This is why I have been arguing for a you-know-what consent-based law. The second arm states that the victim is alarmed, humiliated, et cetera. This means that the victim would need to make a statement to that effect. It is included here and in the Northern Ireland draft to raise that threshold just a little. It should not be too high a threshold to meet.
The recklessness amendment is a good compromise, especially when faith in the criminal justice system is at an all-time low among women. Otherwise, women will report cyberflashing and find that they fail at the first hurdle because of the need to prove that the person who sent the image intended to cause direct harm.
In my meeting with the Minister, he gave an example of why a consent-based offence would not work. He used an image of a complainant having to give evidence in a court. That went a long way to swinging it for me but I have taken advice on this and, as I now understand it, the complainant would need only to give a statement, which would of course be crucial to any prosecution. This means that the prosecution would not go ahead unless the complainant supported it, which is fair enough; I had visions of a victim trembling in the dock when facing her abuser. I would be most grateful if the Minister could clarify this because, as I understand it, the court issue made the difference between having a consent-based offence and the Government’s proposal. It has been known on rare occasion for me to get muddled up but I would appreciate clarification on which version is correct.
I appreciate that the Minister and the Law Commission have not had time to consider this recklessness amendment fully so I certainly do not intend to press it to a vote today. The best outcome would be the Government and the Law Commission looking at this and the Government bringing forward their own amendment before Third Reading. I am ever hopeful and thank noble Lords for their patience.