Amendment 162

Part of Domestic Abuse Bill - Committee (5th Day) – in the House of Lords at 11:30 pm on 8th February 2021.

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Photo of Lord Wolfson of Tredegar Lord Wolfson of Tredegar The Parliamentary Under-Secretary of State for Justice 11:30 pm, 8th February 2021

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.