Amendment 107A

Police, Crime, Sentencing and Courts Bill - Report (5th Day) – in the House of Lords at 9:15 pm on 12th January 2022.

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Lord Wolfson of Tredegar:

Moved by Lord Wolfson of Tredegar

107A: After Clause 46, insert the following new Clause—“Voyeurism: breast-feeding(1) Section 67A of the Sexual Offences Act 2003 (voyeurism: additional offences) is amended as follows.(2) After subsection (2) insert—“(2A) A person (A) commits an offence if—(a) A operates equipment,(b) A does so with the intention of enabling A or another person (C), for a purpose mentioned in subsection (3), to observe another (B) while B is breast-feeding a child, and(c) A does so—(i) without B’s consent, and(ii) without reasonably believing that B consents.(2B) A person (A) commits an offence if—(a) A records an image of another (B) while B is breast-feeding a child,(b) A does so with the intention that A or another person (C) will look at the image for a purpose mentioned in subsection (3), and(c) A does so—(i) without B’s consent, and(ii) without reasonably believing that B consents.”(3) In subsection (3), for “and (2)” substitute “to (2B)”. (4) After subsection (3) insert—“(3A) In this section a reference to B breast-feeding a child includes B re-arranging B’s clothing—(a) in the course of preparing to breast-feed the child, or(b) having just finished breast-feeding the child.(3B) It is irrelevant for the purposes of subsections (2A) and (2B)—(a) whether or not B is in a public place while B is breast-feeding the child,(b) whether or not B’s breasts are exposed while B is breast-feeding the child, and(c) what part of B’s body—(i) is, or is intended by A to be, visible in the recorded image, or(ii) is intended by A to be observed.””Member’s explanatory statementThis new Clause creates new offences of recording images of, or otherwise observing, breast-feeding without consent or a reasonable belief as to consent. To be guilty of the offence the perpetrator must be acting for the purpose of obtaining sexual gratification or of humiliating, alarming or distressing the victim.

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

My Lords, in moving government Amendment 107A, I first thank sincerely all those in both Houses who have campaigned on this important issue, particularly the noble Baroness, Lady Hayman, and all those who spoke in the debate in Committee in this House. I know that she wanted to be here this evening, but I am afraid the hour has prevented her doing so. It is right to put on record my thanks for the tireless work she has done in this area, and for the time she gave on a number of occasions to discuss this issue with me. The noble Lord, Lord Pannick, has also been extremely helpful on this point, and I thank them for joining me in putting their names to the amendment.

I made it clear in Committee that the Government supported the aims of the original amendment put down by the noble Baroness but considered that it was too broadly drawn and would capture conduct that ought not to be criminalised. In particular, I explained in a series of to-and-fro discussions with the noble Lord, Lord Pannick, that the issue of intention needed to be more carefully addressed.

What I thought was an interesting and, indeed, constructive legal discussion in your Lordships’ House in Committee led—no doubt because of the subject matter rather than the inherent attraction of the legal topic of mens rea—to a short piece in the diary column in the Times that mused about my own holiday snaps; to my first mention on “Have I Got News for You”, which revealed that the panel’s grasp of the finer points of criminal law was sadly lacking; and to an article in the Guardian that opened by nominating me as 2021’s Most Embarrassing Politician, which your Lordships might think to be a rather crowded field, and concluded with the stirring cri-de-coeur “Free the breasts, abolish the barons”—although why the first should necessitate the second is not immediately apparent, at least to me.

It is therefore with some trepidation that I again venture into the field, but this time I am armed with a government amendment. The truth is that I am proud to be moving this amendment, because although this might seem a topic of fun to some outside this House, it is not a matter for amusement at all. This amendment, which has been the subject of careful consideration, will support and protect parents and children. I hope that it will be supported in this House today as it has been publicly greeted with acclamation by campaigners in the other place, including Stella Creasy and Jeff Smith—I should mention them in particular for their work in this area—as well as organisations working to protect women from abuse.

This amendment would create new offences to criminalise recording images of, or operating equipment to observe, a person at a time when they are breastfeeding without that person’s consent or a reasonable belief that they consent. For the offences to be made out, the perpetrator must be acting for the purposes of obtaining sexual gratification or of humiliating, alarming or distressing the victim.

Although, as I made clear in Committee, the Law Commission is currently reviewing the law around the non-consensual taking and sharing of intimate images, including whether photographs of partially covered breasts and breastfeeding should be considered intimate images, we believe that this amendment will ensure that parents are protected from non-consensual photography and can feel safe to breastfeed in public ahead of the publication of the Law Commission report in spring this year. Obviously, when the Law Commission reports, we will look at its report and the whole area of this law as a unit. For those reasons, I beg to move.

Photo of Lord Pannick Lord Pannick Crossbench 9:30 pm, 12th January 2022

As the Minister said, the noble Baroness, Lady Hayman, is unable to be in her place tonight. She has asked me to say that she joins me in thanking the Minister, who has engaged with us sympathetically on this topic and secured this welcome change in the law. That is a tribute to his persuasive powers not just in this House but in government.

I hope that the Minister’s remarks tonight will receive as much publicity as his speech in Committee, which, as he said, featured not just in Hansard but elsewhere. He mentioned his appearance—or his remarks’ appearance—on “Have I Got News for You”; well, the news tonight is that this amendment has achieved a welcome change in the law that will be appreciated not just by breastfeeding women but by their partners and relatives.

Photo of Lord Blencathra Lord Blencathra Chair, Delegated Powers and Regulatory Reform Committee, Chair, Delegated Powers and Regulatory Reform Committee

My Lords, I intervene to ask my noble friend a question. I listened carefully to what he said and I completely support the amendment, but does it go far enough? I cannot find any excuse or justification for anyone who is not a family member to take any photographs of a woman breastfeeding. It would seem from what my noble friend said on the amendment that mens rea has to be proved—there has to be a proven intent to get sexual gratification from it—but why should that be the case? In my view, there can be no justification for anyone outside the family—a stranger—to want to photograph a woman doing this. This is a simple question from my simple little mind.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice)

My Lords, we welcome the Government’s decision to accept the force of the amendment pursued by the noble Baroness, Lady Hayman, and supported by the noble Lord, Lord Pannick, to outlaw this unpleasant practice and introduce this amendment.

Over recent years, we have achieved considerable progress in the area of taking, procuring or disclosing what I would generically call voyeuristic images. Revenge porn was outlawed under the Criminal Justice and Courts Act 2015, and this was finally extended to threats to disclose intimate images in the Domestic Abuse Act last year. The unpleasant practice of upskirting was outlawed by the Voyeurism (Offences) Act in 2019.

Recording images of breastfeeding mothers is another example of voyeurism. It is easy to forget, certainly when the practice is made light of, that this is demeaning, embarrassing and humiliating for a breastfeeding mother. It is also frightening, because the mother is in a uniquely vulnerable position. A mother who is breastfeeding, if she is being photographed, is left in the entirely invidious position that she can either stop, in which case she has to close or adjust her clothing, giving more subjects to the photographer and depriving her infant of food, or go on and continue the agony of being photographed. That is a horrible position for a mother to be in.

We agree that this is a serious issue. These amendments are directed at an arrogant and frankly misogynistic practice. It is right to criminalise it for the protection of the women affected and we fully support the two amendments.

Photo of Baroness Chapman of Darlington Baroness Chapman of Darlington Shadow Minister for the Cabinet Office, Opposition Whip (Lords), Shadow Spokesperson (Business, Energy and Industrial Strategy and International Trade) , Shadow Spokesperson (Justice)

We wholeheartedly welcome this, and we welcome how the Minister can laugh at himself and bring good humour to this. I think it is okay to have a sense of humour about this issue; what matters is that we are finally dealing with it. This really is important. Encouragingly, breastfeeding rates are improving in this country; over 80% of women start to breastfeed their baby when they are born, but the rates fall quite dramatically, with around 25% continuing at six weeks. There are lots of reasons for that, but one of them is about feeling uncomfortable breastfeeding in public. We should be doing everything we can to normalise breastfeeding and make breastfeeding mothers feel welcome and supported, wherever and however they choose to feed their babies.

There are two amendments in this grouping: one is the government amendment, which we completely support, and there is also the issue about needing to show intent for sexual gratification or humiliation. It was thoughtful of the Government to include that word, and I just want assurance that the perception of humiliation that ought to matter is that of the woman breastfeeding and being photographed. That ought to be sufficient to prove that there was an intent to humiliate. I would welcome some clarification from the Minister on that point.

We warmly welcome this measure. Breastfeeding women will be very pleased that the Government have come to a place where they see things in the way that they do.

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

My Lords, I am very grateful for the warm words from across the House and for the support this amendment has received. I will pick up a couple of the points made. First, I respectfully agree with the noble Baroness, Lady Chapman, that we want to normalise and support—to use her verbs—women who are breastfeeding; that is very important. It is a matter for my department in this legislation and for other government departments in other areas. That is certainly our aim.

I will try to answer the question put by my noble friend Lord Blencathra. This amendment is modelled on the upskirting offence in the Voyeurism (Offences) Act 2019. We want—without getting myself on “Have I Got News for You” for a second time—to avoid capturing people within the offence who ought not to be captured. Let me try to give a different example. The point made by my noble friend was about forgetting intention and purpose. The problem there, for example, could be that if you were running CCTV in a children’s play area and a mother was breastfeeding, you would be taking images of her; you would not have her consent, nor any reasonable basis to think that she was consenting to being filmed. Therefore, you could be committing a criminal offence. That is why here, just like the upskirting offence, there has to be a purpose of sexual gratification or humiliating, alarming or distressing the person photographed.

The noble Baroness asked me about “humiliating”. I again thank her for spotting that word, which comes from the other Act. It is a really important word. I will put it this way: the fact that the person subjectively feels humiliated does not necessarily mean that it is done for the purpose of humiliation. There is not a one-for-one correlation. However, any court will have to ask the question: was this for the purpose of humiliation? That is a question for the court to decide. You look at the circumstances objectively. The fact that the person feels very humiliated is a very important part of answering that question. But I cannot go so far as to say that the subjective feeling of humiliation necessarily answers the legal question. I hope that has answered the noble Baroness’s question. This is an issue that arises in other areas of criminal law as well. Without delaying the House, I hope that that is a sufficient answer for this evening. I am very happy to engage with the noble Baroness further on this.

Photo of Baroness Chapman of Darlington Baroness Chapman of Darlington Shadow Minister for the Cabinet Office, Opposition Whip (Lords), Shadow Spokesperson (Business, Energy and Industrial Strategy and International Trade) , Shadow Spokesperson (Justice)

I appreciate that and understand what the Minister is saying. Is he saying that, if it could be reasonably expected that a breastfeeding woman would feel humiliated in the particular circumstances, that would be interpreted as humiliation? On the point about the CCTV, I think most breastfeeding women would not feel humiliated in that circumstance.

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

The question which has to be asked is: was this done for the purpose of humiliating the woman breastfeeding? To answer that you would look at all the relevant circumstances. I would suspect that, rather like the upskirting offence, in the vast majority of cases the question almost answers itself, given our experience from upskirting.

In this area, as in all areas, if, once the offence has gone into the law, it turns out that there is a problem in prosecuting—for this reason or any other—we will keep it under review, because our intention is to stop the conduct, to make it criminal and thereby punish people who engage in it—but, I hope, to stop it. If there are problems, we will keep it under review, and I am very happy to continue the conversation on that. I will draw my remarks to a close and invite the House to support the amendment.

Amendment 107A agreed.