Amendment 162

Domestic Abuse Bill - Committee (5th Day) – in the House of Lords at 11:00 pm on 8 February 2021.

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Baroness Morgan of Cotes:

Moved by Baroness Morgan of Cotes

162: After Clause 72, insert the following new Clause—“Threats to disclose private sexual photographs and films with intent to cause distress(1) Section 33 of the Criminal Justice and Courts Act 2015 is amended as follows.(2) After subsection (1) insert—“(1A) It is an offence for a person to threaten to disclose a private sexual photograph or film if the threat is made—(a) without the consent to the threatened disclosure of an individual who appears, or is stated to appear, in the photograph or film, and(b) with the intention of causing that individual distress.”(3) In subsection (2), for “subsection (1)(a) and (b)” substitute “subsections (1)(a) and (b) and (1A)(a) and (b)”.(4) In subsection (3), after “disclosure” insert “or threat to disclose”.(5) In subsection (4)(a), after “disclosure” insert “or threat to disclose”.(6) In subsection (5), for “this section” substitute “subsection (1)”.(7) In subsection (8)—(a) after “disclosed” insert “or threatened to disclose”;(b) after “disclosure” insert “or threat to disclose”.”Member’s explanatory statementThis Clause will make the threat to disclose private sexual photographs and films with intent to cause distress a criminal offence.

Photo of Baroness Morgan of Cotes Baroness Morgan of Cotes Conservative

My Lords, Amendment 162 is in my name and the names of the noble Baronesses, Lady Hodgson of Abinger, Lady Crawley and Lady Grey-Thompson. I thank them, and the noble Lord, Lord Macdonald of River Glaven, for their support. I am grateful to all noble Lords who indicated their support to me for this change in the law. I also thank Ministers in both Houses for their constructive engagement on this matter so far and, in particular, the Secretary of State for Justice, who was himself involved in securing the change to the law in 2015 to criminalise the sharing of intimate images, otherwise known as “revenge porn”.

As I said on Second Reading, more and more of us are using technology and living our lives online, and never more so than in the last 12 months. I want to thank the charity Refuge which, with its Naked Threat campaign, has a specific tech abuse team. It launched its campaign because one of the abuses reported to them in more and more cases was the making of threats to share intimate images. Even before the pandemic, 72% of women accessing Refuge’s services said they had been subjected to technology-facilitated abuse. Most often, these images had been taken in the course of a relationship, and the majority of women who had been threatened in this way had been threatened by a current or former partner. That is why I would argue that this Bill is the right place for this House to recognise and criminalise these threats.

At its core, this is an issue about the exercise of control by one person—the abuser, the maker of the threats—over another. Too often, the threats are followed by physical abuse. If anyone should doubt the prevalence, the research conducted by Refuge as part of its campaign found that one in 14 adults in England and Wales had experienced the threat to share. That is equivalent to around 4.4 million people, and younger women were disproportionately impacted by threats to share, with one in seven having experienced this form of abuse.

What is the impact of the making of such threats? Figures from Refuge show 83% of threatened women said the threats to share their intimate photos or videos impacted their mental health and well-being. About 78% said they changed the way they behaved as a result of the threats. But more worrying is that one in 10 women said the threats had forced them to allow the perpetrator to have contact with their children, and almost one in 10 said they were forced to continue or resume their relationship with the perpetrator and/or tell them where they now were.

I want to pay tribute to those victims who have told their stories and been prepared to come forward. The hour is late, and I do not want to detain the House, because I know there are other noble Lords who want to speak on this amendment, too. But I want to mention one victim who has come forward. Natasha was threatened by her ex-husband. He is now in prison and I am pleased to say she is happily remarried. She said:

“Knowing an abuser has intimate photos feels like you’re being violated. Those images were for his own gratification and a tool to keep me compliant. I had no way of proving my ex had shared these images but the threat of sharing them was equally distressing and compounded my isolation.”

The reason these brave victims and, sadly, millions of others, are not getting the protection they should is that they are too often told that no police action can be taken until the images are actually shared. Of course, the actual sharing of the images might take place, but just as likely, if a partner or ex-partner wants to exercise control over and play havoc with their victim’s life, they will leave the threat hanging out there, often for many years. So the police and everyone else need to know and be clear in their own minds that the making of threats is an offence and should be prosecuted, in the same way as the actual sharing of intimate images was made a crime by this Government under Section 33 of the Criminal Justice and Courts Act 2015. I should also point out that in Scotland, the threat to share is already an offence.

Having said all of this, and hopefully made the case for why the law should be changed, I do not think that there is too great a difference between those of us who support the amendment and my noble friend the Minister on this matter. I believe that the Government accept that there is a gap in the law which needs to be addressed. The real issue is one of timing. As I understand it, the Government would prefer to wait until the Law Commission has published its consultation on image-based abuse overall and then made its recommendations. But we were promised this consultation early this year; I suspect Ministers hoped that it would be published before we reached this stage of the Bill, but we are still waiting, and this is only a consultation. The recommendations to follow and then the change in the law could take several more years.

I do not disagree that a full review of the law on image-based abuse would be welcome, but in the meantime we have a Bill before us which, as I said at Second Reading, provides an opportunity to tackle this abuse now. Ultimately, this amendment would not make it more difficult to eventually extend the law on broader image-based abuse, but approving it now, and including it in the Bill, would protect millions of women and victims of domestic abuse sooner than some indefinite date in the future. I hope the Minister will therefore accept that the time for action against these threats is now. I urge all noble Lords to support this amendment, and I beg to move it.

Photo of Baroness Crawley Baroness Crawley Labour

My Lords, it is a pleasure to follow the noble Baroness, Lady Morgan, and to add my name to her important and transformative amendment, alongside the noble Baronesses, Lady Hodgson and Lady Grey-Thompson. The noble Baroness, Lady Morgan, has set out with great clarity and passion the urgent need for this amendment to fill the very obvious gap in the current law on sharing intimate images.

In my many years of making the case for women’s rights, both here and internationally, I have come to the conclusion that technology is a wonderful thing—until it becomes an instrument of control and abuse, directed so often at women and girls as they are bullied, harassed and threatened online. We may hear the Government’s response to this amendment asking us—as the noble Baroness, Lady Morgan, has said—to wait for the relevant Law Commission review. We know that that review began in 2019, following on from a scoping review in 2018, and that it is not going to report until the end of this year, 2021. There will then be a government review, and that will take us into 2022. There is no guarantee that any legislative action will take place immediately, in the medium term or in the long term—or before the next general election, for that matter. This is not good enough.

There can be horrendous consequences of so-called revenge porn: anxiety, depression, life-changing behaviour and, while suicide is not common, neither is it unheard of. Rachel lived in absolute fear of having intimate images taken without her knowledge sent to her family. It left her so hopeless and desperate that she became suicidal. The anxiety also left her unable to report the other horrendous abuse by her partner that she was suffering, because, as is so often the case, the threat to disclose intimate images is part of a pattern of abuse that is extreme. Refuge tells us that one in 10 women said that the threat to share images forced them to allow the perpetrator not only to have contact with their children but to resume the relationship because of the threat. Revenge porn crimes are undoubtedly linked to other forms of criminal behaviour. We know this because the majority of all image-based charges are brought alongside family violence offences.

This amendment specifically relates to an escalation of offending and co-offending that adds up to the domestic abuse that this Bill seeks to address. As we have heard from the noble Baroness, Lady Morgan, younger women are in the eye of this storm of abuse. Alison’s story is shocking, but not rare. Her ex-partner told her he had drugged and raped her and recorded the incidents on his phone. The police could not act before he did. However, they spoke to him, and he told them that he had deleted the images. Needless to say, he had not. He contacted Alison and told her that he still had the videos and threatened again to share them. I ask the Minister to take the temperature of the Committee tonight on this vital amendment and to work with us and the courageous women—Alison, Natasha, Rachel and all those young women who stand in ranks behind them—to ensure that this amendment forms part of the Bill. It is time to put a stop to this particularly insidious form of 21st-century patriarchal sadism.

Photo of Baroness Hodgson of Abinger Baroness Hodgson of Abinger Conservative

My Lords, it is a pleasure to follow the noble Baroness, Lady Crawley, and I am pleased to stand in support of Amendment 162, which is tabled in my name and that of my noble friend Lady Morgan, and the noble Baronesses, Lady Crawley and Lady Grey-Thompson. It aims to close the criminal loophole that the ease of smartphones and modern technology has afforded perpetrators of domestic violence.

In her introduction to the amendment, my noble friend Lady Morgan set out the sheer scale of how simple threats to share sexual images or videos without consent are being used as a tool of coercive control and domestic abuse with devastating effect. Sadly, this seems to be a growing problem. The time is late, and I do not propose to repeat the statistic that we have already heard: that 4.4 million people are affected. The impact of these threats from current or ex-partners has huge negative results on mental and emotional well-being, creating enormous fear and anxiety, and, sadly, they are very effective. Four out of five women surveyed changed the way they behaved as a result of threats. They feel ashamed, anxious, isolated, frightened and even suicidal.

On Second Reading, my noble friend the Minister acknowledged these concerns and highlighted that the Law Commission has launched a review of the law relating to the non-consensual taking and sharing of intimate images, including, but not limited to, the revenge porn offence in Section 33 of the Criminal Justice and Courts Act 2015. However, as she has already said, waiting for the results of the review may take a long time, because once it is concluded it can take up to six months for the Government to provide an interim response to the findings and a full year before a final formal response. While the Government often accept Law Commission findings, as your Lordships well know, they are then subject to the Government finding a suitable piece of legislation and parliamentary time to make the legal changes enabling a recommendation to come into force. As has already been mentioned, it could be years, so why wait when this Bill provides the perfect opportunity for the change today? We do not need a review to tell us that this is a serious issue that needs to be dealt with, as do our concerns about the effectiveness of the law as it stands. I ask the Minister: why not accept this amendment, even if it is not perfect? This change, which we can make now, will provide victims with the support they need to fight back against such abusive, despicable behaviour as revenge porn and give the police the power they require to be able to act.

Photo of Baroness Grey-Thompson Baroness Grey-Thompson Crossbench

My Lords, I draw your Lordships’ attention to my declaration of interest, in that I am a vice-chair of the Local Government Association.

The noble Baroness, Lady Morgan, and others who have put their name to this amendment have comprehensively covered it and I commend them all on their ongoing commitment in this area. It is a privilege to add my name to this amendment. I also thank Refuge for providing an overwhelming picture of the scale and impact of this threat. The data and figures are compelling.

The impact on its victims is devastating. I ask that, if anyone is unsure of this amendment, they look at The Naked Threat, which recounts examples from survivors. Due to threats, one in five women experienced panic attacks. More than one in 10 felt suicidal. A third of threatened women said that the threat made them feel ashamed, anxious and used, and a quarter felt isolated. Almost one in five said that the threats directly impacted their relationships with friends and family.

Threats to share intimate images also had a direct impact on women’s physical safety. Almost one in five threatened women feared for their physical safety. And it cannot be right that almost one in 10 was forced, they said, to continue or resume the relationship with the perpetrator. It is appalling that one in seven young women is affected by the threat to share intimate images.

The case studies that the noble Baroness, Lady Crawley, raised—of Natasha, Alison and Rachel—should make us all think about this amendment. Threats to share images cause women to alter their behaviour, a point that the noble Baroness, Lady Morgan, has already covered. The real worry, however, is that because this is not illegal, 63% of women affected did not report the threats to the police.

The Domestic Abuse Bill is the right vehicle to enhance protection against threats to share, because the majority—72%—of threatened women were threatened by a current or former partner. Moreover, more than one in four women was sexually abused alongside the threats to share. More than one in six was physically abused alongside the threats.

The main issue that I want to cover, however, is that while I welcome the Law Commission review of image-based crimes, it could take many years to come to fruition. Other noble Lords with their names on this amendment have mentioned the review. Even after that process is complete, the Government will need to review the recommendations, respond to each in turn and decide whether to accept them. That will take time —and then we will need to find time in the parliamentary schedule. This Bill, which has so much support in your Lordships’ Chamber, has been almost four years in the making. While the Government insist that we wait, how many more women are expected to suffer?

Photo of Lord Judge Lord Judge Convenor of the Crossbench Peers 11:15, 8 February 2021

My Lords, I apologise for unavoidably missing Second Reading. I will only add something that is based on my own experience. We are dealing with the instruments of power. The more personal they are, the more powerful they can be; the greater their use, the greater the risk of their misuse. I approach this amendment—the spirit of which I strongly support—on the basis of experience, or experiences, of the way in which all the horrors and indignities can now be heaped on victims in a non-domestic situation: it is rape by strangers, pervertedly using modern technology to add to the humiliation of their victim by taking intimate images before leaving them to all their harrowing distress.

What is the purpose of those photographs? Is it to humiliate, or to threaten? They can be circulated to others with potentially rather perverted sexual titillation in mind, who themselves will have the power to threaten the victim with yet further circulation of the images. Such threats are appalling and should be criminalised. I hear the Minister thinking, immediately, “But this is a Domestic Abuse Bill.” There is a link, however, between that sort of behaviour and the behaviour to which I now come.

I am assuming for present purposes that, far from being rape cases, the images which we are now discussing are based on participation in the taking of images at times of cherished joy by two perfectly happy, willing people. I know that is not always the case, but I am taking it at the other extreme end. They are taken consensually, on the basis of trust—that they will remain private and personal, that they will never be circulated, that the power they give to one participant over the other will never be abused, whether via circulation or threat of circulation, and trust in particular that they will never be abused as a weapon of power, pressure, or control. I emphasise that to me, a threat alone constitutes a grotesque breach of the trust which was once reposed in the other half to the relationship. It leaves the victim with an impossible choice to make: to risk circulation—how awful—or give way to what may be utterly outrageous demands by someone who was once trusted.

We criminalised the sharing of intimate pictures. Section 33 of the 2015 Act is a perfectly simple piece of legislation. We do not require the Law Commission. We do not require very much time to be able to adapt the Section 33 provision so as to make criminal the circulation and the threat to circulate or share images such as this. It is simple and obvious.

Photo of Lord Lucas Lord Lucas Conservative

My Lords, I add my name to those saying that this is a change we should make, and now. I would like to be sure, which I am not at the moment, that the wording will cover an image which does not actually exist but is merely asserted to exist. On some of these occasions, a recording will have been made or said to have been made without the victim’s knowledge, but she may well believe that the allegation is true because it is a believable one. Under those circumstances, it should be clear that this offence is activated. I would also like to understand better how one can consent to a threat. If it is a threat, what does consent look like? What would it take for someone to consent to a threat? How would that be phrased; how would it work? Is “publish and be damned” consent? If not, what would be?

Photo of Lord Macdonald of River Glaven Lord Macdonald of River Glaven Crossbench

My Lords, I am grateful to the noble Baroness, Lady Morgan, for putting down this amendment, which I strongly support.

One way to judge the gravity of a crime is to assess the anguish it brings to its victims. Usually, this emotional suffering comes as a by-product of, say, physical harm or financial loss. However, sometimes the creation of anguish is deliberate, the whole point of the crime, and a source of great satisfaction to the criminal. It is perhaps no surprise that our courts have reserved special condemnation for those responsible for this sort of behaviour. In 2015, amid mounting evidence of a growing problem, the Government decided to tackle the ugly phenomenon of so-called revenge porn: the sadistic online dissemination without consent of sexually explicit photos and videos, usually of young women, and usually by disgruntled former boyfriends. Ministers recognised that this behaviour is particularly nasty because it targets the most private and personal aspects of life, exploiting intimacy to create ridicule, contempt and public shame. Indeed, each of these emotions is precisely what is intended by the perpetrator, particularly the public shaming. This conduct was thus made a crime that could lead straight to prison.

However, it is now clear that the present law does not go far enough, for what about threats to share intimate images? As your Lordships have been told, at present, these attract no criminal sanction at all, although the evidence shows that significant numbers of women and girls face this menacing behaviour.

Much has been said in this debate about the survey carried out by Refuge, the country’s largest provider of domestic abuse services. That is not surprising when the results of this survey appear to show that as many as one in seven young women in England and Wales have faced these threats.

These figures portray a world of anxiety and dread. Because most of these threats come from current or former partners, they also speak of deliberate schemes of domination and control that we should acknowledge for what they are: straightforward examples of domestic abuse. Like all crimes in this category, they gift a gratifying sense of power to the abuser, who is intent on using this power to signal the victim’s utter lack of worth.

Amendment 162 provides the opportunity to change the law to criminalise this behaviour, granting thousands of women and girls access to justice and protection—the first duty of the law. At present the Government prefer to push this issue off into the future, awaiting a Law Commission review into all forms of image-based abuse. But for all the reasons set out by the noble Baroness, Lady Morgan, people subjected right now to this behaviour should not have to wait. I hope the Government will accept what is widely acknowledged: that this is a gap in the law and the Government’s duty is to plug it without delay.

Photo of Lord Alderdice Lord Alderdice Deputy Chairman of Committees

The noble Baroness, Lady Fox of Buckley, has withdrawn, so I call the noble Lord, Lord Russell of Liverpool.

Photo of Lord Russell of Liverpool Lord Russell of Liverpool Deputy Chairman of Committees

My Lords, in this morning’s Times there is an article in which the National Police Chiefs’ Council lead officer for child protection, Simon Bailey, said that arresting hundreds of sex offenders every month has little effect, because millions of abuse images are readily available online. Mr Bailey pointed out that the number of indecent images in circulation has risen exponentially, from 7,000 in 1990 to 17 million today. They predominantly involve girls aged between 11 and 13, because 44% of these images were or are self-generated. This is part of the ever-growing online library of intimate images, curated—in the loosest sense of the word—by technology and social media platforms, only some of which grudgingly acknowledge a limited degree of responsibility.

Consider the 11 to 13 year-old girls of today and how they may feel about these images existing and getting into the wrong hands as they navigate through adolescence and towards adulthood. Consider those women who were the 11 to 13 year-olds five, 10 or 15 years ago, who not only have their legacy images stored in the cloud but who may have continued to populate that library in the interceding years. This is the reality of the scale of the problem we are discussing tonight.

The statistics are compelling and depressing. An estimated 130,000 young people aged between 18 and 20 have experienced threats to share their intimate images, and almost 1 million people now in their 20s have experienced similar threats. Whether we like it or not, the sending and receiving of intimate images is an increasingly common part of dating and relationships. In 40% of cases in which individuals have received threats to share intimate images, they did not consent to those photos or videos being taken in the first place.

The amendment from the noble Baroness, Lady Morgan, which I wholeheartedly support, is an important and necessary part of what must be a legal and societal assault on the myriad ways in which technology can be used to abuse, control and coerce. Whether individuals consented to their images being taken is irrelevant; they should have ironclad protection under the law from those images being used without their consent. Their bodies, their self-esteem and their right to privacy and protection should be theirs and theirs alone.

On 28 December last year, as we enjoyed a later-than-usual Boxing Day bank holiday in England, and your Lordships prepared themselves for the rigours of the 30 December debate on the TCA with the EU, in Dublin, President Higgins signed the Harassment, Harmful Communications and Related Offences Bill into law. This created two new offences. One deals with the taking, distribution or publication of, or threat to distribute, intimate images without consent and with intent to cause harm, with the penalty of an unlimited fine or up to seven years in prison.

The second offence deals with the taking, distribution or publication of intimate images without consent, without a requirement that the person intended to cause harm to the victim, with a maximum penalty of a €5,000 fine or up to 12 months in prison. It is irrelevant that a person may have consented to the taking of an image if it is subsequently published or distributed without their consent. It will be an aggravating factor for the purposes of sentencing if the perpetrator of the offence is or was in an intimate relationship with the victim of the offence.

The Irish Minister for Justice—a woman—said that

“taking or sharing intimate images without consent is abuse and will not be tolerated”.

This is an Irish protocol that we should warmly welcome and aspire to emulate at the earliest opportunity—which is to say, in this Bill, now.

Photo of Baroness Sanderson of Welton Baroness Sanderson of Welton Conservative 11:30, 8 February 2021

My Lords, I too will speak to Amendment 162, although, by this stage in the evening, the arguments have already been made. It is not necessary for me to outline the damage that is done by threats to share intimate images or how distressing it is for victims. Anyway, the Government recognise the problem, which is why they have asked the Law Commission to conduct a review.

I understand why the Government wish to wait for the outcome of that review, but we already know that these threats are carried out largely in the context of domestic abuse, which seems to make this Bill the appropriate legislative vehicle. So that leaves us with a conundrum. I appreciate the difficulty, so simply ask my noble friend the Minister how the Government intend to address this issue, in a timely way, if they cannot consider this amendment at this moment in time.

Photo of Lord Alderdice Lord Alderdice Deputy Chairman of Committees

The noble Baronesses, Lady Newlove and Lady Jones, have withdrawn, so I call the next speaker, the noble Baroness, Lady Bertin.

Photo of Baroness Bertin Baroness Bertin Conservative

My Lords, absolutely it is late in the day, and so many other noble Lords have made brilliant speeches to which I cannot add a great deal. I wholeheartedly support Amendment 162 and thank my noble friend Lady Morgan for setting out the case so well.

We have heard a lot about why we are waiting for the Law Commission. I do not think that we should wait, because threats to share intimate images make up such a small part of this review. Amendment 162 is a simple, narrow yet powerful amendment to extend an existing offence. I ask the Minister how many more victims will live without the legal protection they need while we wait years for the law to change—a change that we can make right now in this Bill. I hope that the Government consider and take on board this amendment.

Photo of Baroness Primarolo Baroness Primarolo Labour

My Lords, I will speak only briefly on Amendment 162. I too thank those organisations that have provided a briefing for this debate, particularly Refuge, which has been excellent throughout. Like other noble Lords, I commend its report, The Naked Threat.

At the beginning of the debate, the noble Baroness, Lady Morgan of Cotes, eloquently outlined why we need to act now. It is impossible to imagine the horror that someone might feel when their phone pings with a message from their ex-partner with photos attached, perhaps ones that they did not even know had been taken, and a threatening message saying, “How bad would it be if these were sent to your work colleagues?” By threatening to share the photographs, your ex-partner is escalating a campaign of intimidation and coercive control to make you do what they want. You can try to deal with it, but he is going to continue with those threats. He had been volatile and controlling, which is why you left him, and now he is trying to get you to go back to him or he wants to prove that he can still control you.

Over time, those threats become darker and more unsettling. You become anxious, you feel unsafe, you are not sure whether he is coming to your home or your work, following you or contacting your friends. He is now frightening you and threatening your physical well-being. Finally, you go to the police, but they decline to help on the basis that he has not done anything wrong and has not committed an offence, so there is nothing they can do. You feel deeply depressed, isolated and fearful. You stay away from friends and virtually go into hiding, not knowing where to turn for help.

As noble Lords have said, young women are disproportionately affected by these threats. The noble Lord, Lord Russell of Liverpool, has compellingly set out the statistics. This issue is only going to grow, so any form of protection now needs to be brought in rapidly. The data is clear and illustrates why it is vital that an amendment is made to this Bill. No doubt, as other noble Lords have said, the Minister will cite the Law Commission review. However, as we know, those reviews can take years to come to a conclusion, as well as the Government deciding which recommendations they will accept. The Government then need to find parliamentary time. In replying to the debate, the Minister really does have to answer the question put by other noble Lords: if we are to wait for the outcome of the review and the Government’s decision on which recommendations they will apply, how long will that take? How long are the Government asking the survivors of this abuse to wait?

The Law Commission review covers a vast area of policy. Amendment 162 is not about pre-empting the full review. The changes it would make are small, straightforward amendments to an existing law that would not have a broader impact on the legal landscape. There really is nothing to stop the Government making this small change now, given that we have appropriate legislation before us.

This debate has clearly demonstrated that the threat to share intimate images is widespread. It is linked to domestic abuse and is having a devastating impact on the survivors of abuse. It is an issue that is going to increase and will continue to put power in the hands of the perpetrator, leaving survivors traumatised and isolated, perhaps forced to change their lives and move away from their homes, simply because the Government refuse to make this small change to the law. I hope that, in replying to the debate, the Minister will explain clearly, if the Government are unable to accept the amendment, how they propose to protect the survivors of this abuse.

Photo of Lord Alderdice Lord Alderdice Deputy Chairman of Committees

The noble Baroness, Lady Burt of Solihull, has withdrawn, so I call the noble Baroness, Lady Wilcox of Newport.

Photo of Baroness Wilcox of Newport Baroness Wilcox of Newport Opposition Whip (Lords), Shadow Spokesperson (Equalities and Women's Issues)

I thank the noble Baroness, Lady Morgan, for bringing this much-needed amendment to the House and recognising that the changes that have occurred in the past few decades, since the widespread introduction of mobile phone technologies and social media coverage, have irreversibly changed the way in which we communicate. The inherent dangers of the misuse of that communication have become increasingly prevalent. As the noble Baroness said, we are living our lives online, and today’s debate is into its ninth hour.

As a former teacher of media studies, I taught my students that the medium is the message—but, like many of my colleagues, I had no idea at that time how exploitative the medium would become. The key element to this amendment is that the Bill as it stands does not do enough to ensure that survivors of technology-facilitated abuse have sufficient protection in the criminal law. Threats to share intimate or sexual images and films are an increasingly common tool of coercive control that can have enormous negative impacts on survivors of abuse. While the sharing of intimate and sexual images without consent is a crime, threatening to share is not, leaving survivors of this form of abuse without the protection of the criminal law.

During my reading for this topic, I was powerfully moved by a key report, Shattering Lives and Myths, by Professor Clare McGlynn and others at Durham Law School. This was launched at the Supreme Court last year, and it sets out the appalling consequences to victims of intimate images being posted without consent on the internet. Nearly half of the victim-survivors the researchers spoke to had experienced threats to share nude or sexual images and videos without consent. While many of these threats were followed by non-consensual sharing, there must be a recognition that threats to share such images can in and of themselves have significant life-threatening impacts.

The domestic abuse commissioner designate has also supported this addition to the law, saying:

“The threat to share an intimate image … is an insidious and powerful way that perpetrators of domestic abuse seek to control their victims, and yet the law does not provide the protection that is needed. Threats to share these images play on fear and shame, and can be particularly dangerous where there might be multiple perpetrators or so-called ‘honour-based’ abuse is a factor. What’s more, the advent of new technologies enables perpetrators to make these threats even where such images do not exist, but there is no clear criminal sanction for this behaviour.”

Lack of support leaves victim-survivors isolated, often attempting to navigate alone an unfamiliar, complex and shifting terrain of legal provisions and online regulation. There needs to be a recognition in the Bill that image-based sexual abuse is a sexual offence, and an adoption of a comprehensive criminal law to cover all forms of image-based sexual abuse, including threats.

The Domestic Abuse Bill is the most appropriate vehicle to make this change: victims and survivors would benefit almost immediately, and it would help them in preventing further abuse and getting away from their perpetrator. This amendment can close that gap in the law, and I urge its support in this Committee.

Photo of Lord Wolfson of Tredegar Lord Wolfson of Tredegar The Parliamentary Under-Secretary of State for Justice

My Lords, I will start with the point made by my noble friend Lady Bertin. It is of course late; I am conscious of that. But I have to say that it is worth staying up late to hear the debate we have just had, with the quality of the contributions to which we have all just listened. Therefore, I will take a little time—I hope not too long—to respond to the debate, because this is obviously a very important issue.

I listened with great care to the way in which the amendment was presented and explained by the four noble Baronesses who proposed it. My noble friend Lady Morgan of Cotes explained in detail how the threat to disclose such images can lead women to give way on matters that are of the utmost importance, whether that be contact with children or telling the perpetrator where they are now living. The story of Natasha that she shared was powerful and was added to by the stories of Rachel and Alison, which we heard from the noble Baroness, Lady Crawley. It is right to say, as my noble friend Lady Morgan put it, that this is an issue essentially of timing and not necessarily of principle. I will come back to that point a little later.

My noble friend Lady Hodgson of Abinger said that we did not need a review to tell us that this is a serious issue. That is right, but, as I will seek to explain, we need the Law Commission and should take the opportunity to hear from it about how best we deal with what is plainly a serious issue. Among those proposing the amendment was the noble Baroness, Lady Grey-Thompson, who asked how many more will suffer—a point I will come back to because it was put to me by a number of speakers.

The noble and learned Lord, Lord Judge, explained that this was an issue of power, speaking from his judicial experience. He highlighted two issues, trust and consent. When we are dealing with consent in this area, we must recognise that it is relevant in two contexts. There is consent to the taking of the image and to its distribution; that again merits the consideration of the Law Commission.

As the noble Lord, Lord Russell of Liverpool, explained, there has been an exponential increase in images in this area. His contribution showed that this issue goes wider than just domestic abuse. It may well be that the issue is most prominent in the field of domestic abuse, but it is part of a broader issue of how we deal with, and to what extent we criminalise, online harms. While I agree that there ought to be a “legal assault” on this area, to use his phrase, it is not an assault starting from the base of the mountain. We are some way up it already, as I will seek to explain.

The legal architecture of this—the background—is, as a number of noble Lords said, that Section 33 of the Criminal Justice and Courts Act 2015, commonly known as the “revenge porn offence”, applies to the sharing of images. This amendment seeks to extend it to criminalise threats to disclose such images. The starting point is that the Section 33 offence is working well. There have been over 900 convictions for the offence since its commencement in April 2015, and we believe it is working as intended. That offence was deliberately tightly drafted to target those who disclose private sexual photographs or films without consent and with the intention of causing distress to the individual depicted. We have heard this evening how the threat to disclose such images can also be extremely distressing and understand that, but we do not at present believe that the offence needs broadening as proposed by the amendment.

The noble Lord, Lord Macdonald of River Glaven, and the noble Baroness, Lady Wilcox of Newport, put their contributions on the footing that at the moment there is no criminal sanction for such conduct. With respect, I dissent from that proposition. Threats to disclose can, in many circumstances, already be captured by a range of existing offences that tackle, for example, harassment, stalking, malicious communications or blackmail. Additionally, a threat to disclose such material may, depending on the circumstances, be captured by the “coercive or controlling behaviour offence” under Section 76 of the Serious Crime Act 2015. Therefore we are not currently persuaded that the case has been made for extending the “revenge porn” offence to capture those who threaten to share such images without consent in order to cause distress, but—it is an important “but”—we are ready to listen to and consider any evidence put forward for change.

There are concerns, I accept, about the criminal law in this newly developing area, and we have to be sure that the criminal law is keeping up with the constant changes in online communication technology and, in particular, the use of social media in all its varied forms. It is against that background that the Law Commission is conducting, as we have heard, a review of abusive and offensive online communications. As part of this review, it is considering existing offences relating to the non-consensual taking and sharing of intimate images to identify whether there are any gaps and, if so, how they should be filled. I feel it is vital that the Law Commission be given adequate time to review the broader criminal law in this area. We must not be tempted, I suggest, to rush in and amend the criminal law in a piecemeal manner. It is far better that the Law Commission be allowed to consider in full the sensitivities and technicalities of the law in this area and provide substantive recommendations for change where appropriate. Indeed, that is precisely why we have a Law Commission.

I accept, of course, that telling the Committee that we should wait for the Law Commission sounds suspiciously like kicking a can down the road. That is certainly not what I intend to do. On the contrary, the position is this: the Law Commission is launching the consultation this month, and it expects to conclude its review before the end of the year. I am sure, as the noble Lord, Lord Russell of Liverpool, said, it will be looking at the Irish experience as part of that review. To give a flavour to the Committee of the sort of points the Law Commission will be looking at—and I will take this relatively quickly, if I may, given the time of the evening—it will be looking, first, at the current range of offences to ensure that the criminal law provides consistent and effective protection against the creation and sharing of intimate images without consent. It will be assessing whether the existing criminal law can deal adequately with these behaviours, and I have already set out a number of instances where such behaviour may already be caught by the existing criminal law. It will be considering the meaning of the terms “private” and “sexual” in this context. Members of the Committee will appreciate that we have to be very careful to criminalise behaviour that ought to be criminalised but not inadvertently to criminalise behaviour that ought to be outside the confines of the criminal law. The Law Commission will be looking at the potential impact of emerging technology. Finally, it will ensure that any recommendations comply with human rights obligations.

The first of the two points put to me by my noble friend Lord Lucas, on potential images and whether a threat to share an image that has not yet been created ought to be caught, is precisely the sort of point that the Law Commission will be looking at. It will of course be considering the issue of consent here and to what extent consent is vitiated by a threat to disclose, which was the second point he put to me.

I recognise that a number of Members of the Committee, in particular my noble friends Lady Morgan, Lady Sanderson and Lady Bertin and the noble Baroness, Lady Primarolo, asked me how long we are going to wait and, more importantly perhaps, what we are doing in the meantime. In the meantime, the Government have been working with the College of Policing to ensure that the police have all the information about relevant current offences that they need for the purpose of investigating threats to disclose intimate images. As a result of those efforts, the College of Policing has now published updated guidance for police that highlights and clarifies the existing offences that can be used to capture threats to disclose.

While I suspect that my reply has not satisfied all the points made by those who have been putting forward this proposed amendment, I hope that noble Lords will recognise that this is a complex issue. The Law Commission is looking at it, and the proper way forward is to allow it to complete a thorough review in this area to produce its independent recommendations. At the same time, we will continue to work with the College of Policing to ensure that the police are aware of the full gamut of the responses of the criminal law that are at present available to tackle this behaviour. In that context, I invite my noble friend to withdraw the amendment this evening.

Photo of Baroness Morgan of Cotes Baroness Morgan of Cotes Conservative 11:45, 8 February 2021

My Lords, I thank the Minister for his response. He certainly addressed the points raised in the debate, but I do not think he will be surprised to hear that, unfortunately, I do not think he satisfied many of them. Because the time is late, I will obviously not take a long time to go through the arguments in response, but I want to thank all noble Lords who have spoken at this late hour. The fact that so many noble Lords waited to make their points in the way that they did—and I would agree with the Minister that this was an excellent debate—shows the strength of feeling on all sides of the Committee in relation to this amendment.

This is an amendment and a subject that reaches beyond the House and beyond Westminster. It is of direct interest to millions of victims, survivors and their families and friends. I want to thank all those who have campaigned, particularly Refuge—who have rightly been paid tribute. I thank the designate domestic abuse commissioner for her support too. In the course of this debate, we heard clearly why this change to the law is needed, why it needs to be included in this Bill and why the change should be made now.

I will address two very specific points. We have already heard about the length of time Law Commission recommendations take to come into force, but I would say that making threats to share such matters a crime is a relatively small and straightforward change to an existing offence which would not have more complex implications for the broader legal landscape and would offer protection sooner. I particularly thank the noble Lord, Lord McDonald, a former Director of Public Prosecutions, and the former Lord Chief Justice, the noble and learned Lord, Lord Judge. They have spoken so compellingly this evening.

I have also seen the College of Policing guidance that has been issued. I do not think that any police force would feel that they knew more about how to bring prosecutions in the case of these threats than before they had read that guidance. While a small proportion of threats could be prosecuted at the moment, that is not happening in practice. Therefore, the law is not working as intended, which means that there is a gap.

I hope that Ministers will work with those of us who want to see a change in the law. I will, of course, beg leave to withdraw this amendment at this stage of the process, but I strongly suspect that—depending on the nature of future discussions—this amendment will be back at the next stage and it is possible that the feeling of the House will need to be tested.

Amendment 162 withdrawn.

Photo of Lord Parkinson of Whitley Bay Lord Parkinson of Whitley Bay Lord in Waiting (HM Household) (Whip)

My Lords, I thank all noble Lords who have enabled us to cover all the amendments listed for today.

House resumed.

House adjourned at 11.58 pm.