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Examination of Witness

Voyeurism (Offences) (No. 2) Bill – in a Public Bill Committee at 9:30 am on 10th July 2018.

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Assistant Commissioner Martin Hewitt gave evidence.

Photo of Roger Gale Roger Gale Conservative, North Thanet 9:57 am, 10th July 2018

We will now hear oral evidence from the National Police Chiefs’ Council and we have until 10.30 am. For the benefit of the record, could you please identify yourself?

Assistant Commissioner Hewitt:

My name is Assistant Commissioner Martin Hewitt. I am from the Metropolitan police.

Photo of Roger Gale Roger Gale Conservative, North Thanet

Mr Hewitt, thank you for taking the trouble to come and talk to us this morning. I know that there will be significant questions, which I am sure you will be able to answer with great candour, as we expect. Who would like to set the ball rolling?

Photo of Yasmin Qureshi Yasmin Qureshi Shadow Minister (Justice)

Q What impact do you think the Bill will have on the resources of those working in the criminal justice system, including the police?

Assistant Commissioner Hewitt:

There would clearly be an impact if this legislation were enacted because it would create a new offence. It would fill a gap that exists currently in the legislation to deal with this type of offence. I do not think it would be a massively impactive issue for us and the subsequent services. You would have to think about police resourcing.

Clearly, any legislation would inevitably and quite properly lead to publicity about that legislation, which would be a positive thing. It would be an important element of any legislation to make it very clear to anybody who was thinking of perpetrating the crime that there would be a law that would deal directly with it. That would have a positive impact in terms of prevention. It would clearly lead to an increase in reporting but I do not think that level of increase would be so significant that it would outweigh the benefits of being able to deal with this crime effectively.

You would obviously have the knock-on when individuals were charged in the Crown prosecution and courts system. The other end that we would have to consider is the impact of people who would potentially be placed on the sex offenders register. That is a list that grows. To give the example from my own force in London, we have seen an increase of about 8% or 9% per annum over the past few years in London of those who are on the sex offenders register. Clearly, there is a monitoring regime around those individuals based on the risk element. There would properly and obviously be an impact on resources, but I guess that is weighed against the necessity we have to be able to deal effectively with what is a newish crime and a crime that is quite impactive.

Photo of Kate Hollern Kate Hollern Shadow Minister (Housing, Communities and Local Government)

Q Clause 2 of the Bill includes motives, such as obtaining sexual gratification and causing humiliation, alarm and distress. How difficult will it be for the police to secure a prosecution by establishing the motives?

Assistant Commissioner Hewitt:

Establishing motive is always a challenge in any sort of crime. You will clearly have the digital evidence—that is, whatever photograph was taken. That will take you some way towards motive. Adding the element of alarm and distress is important, because the legislation should be very victim focused. Clearly, I would suggest, any person who realised or became aware that someone had taken a photograph in those circumstances would be distressed by it, so you would be able to use that.

Equally, one of the other factors we have to consider is that, often, these photographs find their way on to websites. There are websites where people will upload these kinds of photographs. Again, there is a further trail that takes you towards motivation on behalf of the person who has committed the offence.

We will always have to prove motivation, but the alarm and distress element is very strong. I suggest that, with the right kind of questioning, the right approach to interviewing and the digital evidence you would have, you would be in a reasonable place to assert the motivation.

Photo of Mary Robinson Mary Robinson Conservative, Cheadle

Q When Gina Martin brought this to the police in the first place, she was able to get somebody on to it straight away, because there was a police officer there. The first thought was that it would be treated through the Offences Against the Person Act 1861 more generally, yet that did not come to anything. Is that because it was not previously covered or because it is difficult to prove a case? Are we going to have to guard against simply getting into another piece of legislation where it is difficult to prove the case again?

Assistant Commissioner Hewitt:

I don’t think it is about difficulty. For me, that is the gap this legislation can potentially fill. The two pieces of legislation that you would most likely try to use as it currently stands are, first, outraging public decency legislation, which—let’s be honest—even with the language used in that you realise it is not necessarily fit for the time that we are now. In the first instance, that has to happen in a public place. It also requires witnesses to have been present at the time where the offence took place. An important point coming from my sexual offences lead is that it is not, per se, a sexual offence, and I think these should be treated as a sexual offence. We also have the voyeurism legislation, which has been used, but again, that requires a private setting and seeing and filming a private act.

I do not think the legislative framework as it stands is adequate for the issue that we have. It is another example where the advances and availability of technology—let’s be clear, I would guess that everyone at secondary school probably has a smartphone with them all of the time, which means they have a camera with them all of the time. This means they have the opportunity to commit an offence, amongst others. There are a number of what I believe are sexual offences that are image-based—the so-called sexting and the revenge porn as it is popularly called—all of these offences where the ability for people, universally, to take quality images quickly and potentially share those images takes us to a place where, at the moment, the legislative framework does not give us the ability to deal with that effectively. That is the gap. You always have to prove a crime and there will be always be occasions when that can be challenging. We can deal with it much more effectively with clauses that are specifically focussed on this type of offending.

Photo of Mary Robinson Mary Robinson Conservative, Cheadle

Q Thank you for that answer. You seem to be implying that there is more scope for expanding this list of offences.

Assistant Commissioner Hewitt:

I just think that this is a specific issue that needs to be dealt with. I don’t know if I really want to get into that here. It is worth making the point that we collectively need to focus on a number of image-based sexual offences. People are committing offences in ways they never did before because of the universality of the technology. Legislation can never keep up with every change, but the technology that exists, and our ability to obtain digital forensic evidence and to check things in the way that we can around offending, takes us to a place where we need legislation that fits the nature of the criminality.

Photo of Liz Saville-Roberts Liz Saville-Roberts Shadow PC Spokesperson (Home Affairs), Shadow PC Spokesperson (Women and Equalities) , Plaid Cymru Westminster Leader, Shadow PC Spokesperson (Justice), Shadow PC Spokesperson (Business, Energy and Industrial Strategy)

Q Thank you Assistant Commissioner for the information so far. What interests me is that you raise the issue of the exponential growth in digital imagery offences, and you also touch on the growth of 80% to 90% of the sex offenders register. Obviously we have to keep a balance to take into account capacity, but nonetheless we should not be restricting what we legislate for. Growth should not be a motivation for us to cease legislating. How could you advise us to keep the appropriate balance? Looking at this growth in digital imagery crime and in the sex offenders register, the wider question is: what practices need to be changed, and what support do police forces need in order to enforce and bring evidence for successful prosecutions?

Assistant Commissioner Hewitt:

There is no doubt that we have been wrestling for some time with a dilemma in exactly the way you describe. Developments in technology have enabled a whole range of offending that previously would still have taken place, but in a very restricted and challenging way.

Consider the issue of indecent images: previously it was difficult for somebody to access indecent images. They had to find their way into very specific websites and undertake a series of acts to get there and do what they did. Indecent imagery is now almost readily available in so many spaces, and this means that far more people are accessing it either deliberately or inadvertently. Equally, there is the technology we use to spot when particular computers are accessing that imagery. We are in a situation in which there is a real volume challenge for us. The legislation point needs to be clear at the outset that doing this is illegal, and in this instance we do not have clarity around the specific issue of upskirting, so we need legislation that clearly says that—in the circumstances described—“This is an illegal act”.

The question then is how we respond, and how the system deals with that illegal act. In the first instance it would require awareness, training and understanding to be shared between police forces so that all officers were aware of the new legislation—as we would do with any new piece of legislation—and so that they understand what their powers are and what needs to be done. Then you get into the use of discretion and how you apply the legislation, as you would under any circumstances. For example, where it involves a 15-year-old and a 15-year-old, we need to think and then apply the usual logical approach that would be applied to whichever outcome you were seeking. The system would need to be able to look at whether certain offences were suitable for a caution or some form of warning. We do not want to be dragging loads of young people into the criminal justice system unnecessarily. With image-based sexual offences, you always have that challenge of trying to understand the level of risk presented by the offender, whether it is the viewing of images or upskirting. Some offenders will do no more than take a photograph or view an image, but some may be contact offenders or be escalating in the nature of the offending, and our challenge is always to have systems and processes in place that allow us to try to identify what the risk level is. Even among those registered sex offenders I spoke about, there are clearly RSOs at the top end who are the highest risk RSOs for whom we have significant control mechanisms, and then others at the lower end, where there is a much lighter level of control.

What you wrap into that, as I said at the very beginning, is what we do in terms of publicity and getting the information out there, not just to the police but to the broader public, about what this legislation says, why it is being done and what it says about what we expect and do not expect. I think that will have a really positive impact. You then broaden that out to all the spaces where this offence might take place, for people to become more aware of it. Looking at the offences we have dealt with most, there are obviously quite a few on transport systems, but they are also in supermarkets, shops and places like that. There is an awareness thing that can go on, and then it really is about dealing proportionately with the offending.

All those things are challenges, but I do not think that any of them take us away from the fact that these acts are illegal—they should be very clearly and specifically illegal. Particularly in this instance, they are also incredible distressing and harmful to the victim, but we have to try to find an ability to operate proportionately, and that gets us into some difficult debates about the images online.

Photo of Liz Saville-Roberts Liz Saville-Roberts Shadow PC Spokesperson (Home Affairs), Shadow PC Spokesperson (Women and Equalities) , Plaid Cymru Westminster Leader, Shadow PC Spokesperson (Justice), Shadow PC Spokesperson (Business, Energy and Industrial Strategy)

Q You emphasised earlier the significance of harassment and distress suffered by the victim. How do we ensure that that is safeguarded as a primary issue and that there is not an inappropriate defence of accidental motivations, or alternative ones such as profit? How do we ensure that we safeguard the victim experience as the priority driver?

Assistant Commissioner Hewitt:

It is partly about how the investigation is run. There may be circumstances in which someone could run an accidental defence, but it seems unlikely to me. Not only do you have the evidence that the individual provides you with from what is on their phone, but often, in many of the places where this is happening, you have evidence from internal CCTV—in a supermarket, on a train or wherever. The point for me is that we then ensure that we utilise the mechanisms we have, such as the victim impact statements, when we are prosecuting. The evidence from the victim and the impact on them can very clearly be presented in court. Frankly, even if someone did try to say that it was done accidentally, that would not change the distress caused to the person realising that someone had taken a photograph up their skirt. Whether they could successfully run a defence that said, “I accidentally did that”, would depend on the way in which we conducted our interviews and how the CPS carried out the prosecution.

Photo of Andrew Jones Andrew Jones Vice-Chair, Conservative Party

ThankQ you, Assistant Commissioner, for your answers this morning. You mentioned the desire not to unnecessarily criminalise younger people. I am keen to close this legislative gap in a proportionate way, drawing a distinction between the stupid occasion and the repeated pervert. How do the police tackle the existing offences, such as sexting, for those who are under 18?

Assistant Commissioner Hewitt:

You look at all the circumstances. When the figures are produced on other sexual offending, for example, there will often be a lot of criticism levelled at us about people who get cautioned. We will, on occasion, caution people for rape offences, but if your victim and your offender have mental health issues or a mental impairment, we will take decisions based on all the circumstances. You are looking at the circumstances of the victim and of the offender, and on that basis, you will make a judgment. If you have an adult offender and a child victim, that is clearly an aggravating factor, but you will also have mitigating factors, as I said. If you have two 15-year-olds or 14-year-olds, there are mitigating factors around that, but as you alluded to in your question, if it emerges that that 14-year-old offender has done it on numerous occasions, or there is a repeated pattern of behaviour, again, that would clearly be an aggravating factor.

We would then work with the Crown Prosecution Service to identify what the correct disposal and the correct charge would be—probably the charge would be the same—and whether we would dispose of it in a charge way or whether we would use some other form of control. It is difficult to come up with a clear line. It is about individual cases and looking at the circumstances, including the nature of the offence, the nature of the victim and the circumstances of the victim and the offender. When you work against those three areas, in the centre of those criteria or questions, you come up with what you think the most appropriate position is.

We are facing that a lot with people who are sharing images. If a teenager takes an image of another teenager, having possession of that is an offence. Once you pass that around, that is another offence. We have to constantly ask the question, proportionately, what is the right thing to do? Is that the ill-advised behaviour of a 15-year-old who needs to learn some lessons and change what they do, or are they someone who needs to end up in the criminal justice system? That is a constant balancing act, particularly when you bring juveniles into play. Equally, you could get someone who does it and who has a mental health condition. They may be a 30-year-old, but they may not have the capacity of a 30-year-old. Every case will have to be dealt with on its own merits.

Photo of Wera Hobhouse Wera Hobhouse Liberal Democrat Spokesperson (Housing, Communities and Local Government)

Q Thank you again for coming in, Assistant Commissioner. We all understand that we do not want to create legislation that puts massive burdens on the police and the Crown Prosecution Service, for which reason the main thing is that it acts as a deterrent so people do not do it in the first place—so they see that if they do any of it, it is a criminal offence.

Is it not very important, therefore, that the law is clear and that it makes all upskirting a criminal offence, full stop—no ifs, no buts? You have described a situation where you could say that an image had been taken accidentally, but someone would still end up in a court situation. Would it not be much better if the law was so clear that every upskirting was an offence—so that you would not get all these people in—because we all know it? Is that not the case?

Assistant Commissioner Hewitt:

Absolutely. We always seek very clear laws, which make our job a lot easier. Defences will always be run, and some of them will have some credibility, although I would guess that most will not in this sort of instance. For me, that is absolutely right. Having that clarity around an offence that we know is taking place—and, as I said, with the kind of access people have to their phones—is really important.

Equally, the other reason that I think that is important is that this does not sit in isolation; it is part of a continuum of sexual offending. Of course, it is not a contact offence, but it is part of that continuum, and it is absolutely right that we send a clear message that it is unacceptable to do any acts that are motivated by sexual gratification and have a victim on the other end. That starts with this, but it works through sexual assault and right into rape offences. We need that clarity, which will allow us to deal with it. As I say, you deal with it proportionately once you have the investigation.

Photo of Julian Knight Julian Knight Conservative, Solihull

You talked about clarity. From a slightly different perspective, do you think that it is important to keep the Bill focused on this specific offence, in being a deterrent for the public and getting the message out there? At all festivals next summer, I would like to see signs saying, “You will go to prison, if you commit this offence.” I would like to see clarity for officers on the beat. To widen the scope of this legislation to include other acts could mean upskirting somehow getting lost and officers not quite being as focused as perhaps they would be if the Bill were clear and simpleQ .

Assistant Commissioner Hewitt:

I agree with that entirely. As I just said, if you can reach absolute clarity in legislation, which makes it very clear where the line is and whether you have stepped over that line and that that is an offence, that is absolutely beneficial from our perspective. As we said, we can work out fairly clearly the kind of place where this happens. There has been lots in shops and supermarkets, on transport, and, as you say, at festivals, nightclubs and pubs. Having legislation that makes it very unambiguous for the people running those licences and events, so that they can be clear to everybody who comes into that place, is where we should aim to be. The more we hang things off and spread it, the harder it is to explain it to police officers and others.

Photo of Julian Knight Julian Knight Conservative, Solihull

Q Just to be clear, you are saying, effectively, that we should not go outside the scope of this offence to bring in other offences and, therefore, perhaps detract from this particular offence, so that it does not become a catch-all for all forms of nefarious activity?

Assistant Commissioner Hewitt:

Yes. I introduced that concept of image-based sexual abuse, but that was just to make the point that there is a range of ways that people can offend using digital imagery. It was not to suggest that we ought to make this any less clear than it would appear to be. The one exception that I might make around that is whether there is a potential to add an element around distribution or sharing of that image, because, at the moment, the legislation does not go to that stage. As I said, there is some evidence that there are places where people go to upload these images. I think that is taking that offence to a further stage and is adding to the backdrop. That may be worth considering, but we should have absolute clarity about the core elements of that offence.

Photo of Stella Creasy Stella Creasy Labour/Co-operative, Walthamstow

Q I have two issues I would like to raise with you. I am conscious of time. First, you have made a powerful case for the impact on victims of these kinds of offence. Do you think that impact is any less if it is a picture of somebody’s breasts, rather than their buttocks or genitals?

Assistant Commissioner Hewitt:

I am not sure that I can answer that question, but I understand the point you are making. It feels to me that the intrusion of going in and under a garment—the skirt; I know you don’t have to physically—takes it to a slightly further stage than an image of somebody that is taken clearly outside their clothing. You are in the same territory, but I do think there is something particularly invasive about somebody being able to take an image up a skirt. But I understand the point you are making.

Photo of Stella Creasy Stella Creasy Labour/Co-operative, Walthamstow

Q The concept of consent is secondary in that instance to the location—that is what we are trying to understand.

Assistant Commissioner Hewitt:

If you have not given consent to somebody to take a photograph that is sexualised, you have not given consent to them. I accept that point entirely. That takes us to the last question about clarity. To my knowledge, the phenomenon we are facing, particularly at the moment, is this phenomenon of upskirting, and it would be really good for us to be able to send a very clear message. I get that someone taking a photograph of someone’s breasts or backside from other angles is offensive, but I am not sure—I think it might confuse.

Photo of Stella Creasy Stella Creasy Labour/Co-operative, Walthamstow

Q Secondly, the National Police Chiefs’ Council is meeting on Thursday, when we will be considering this Bill, to talk about the roll-out of the policy from Nottingham, where they have put misogyny on the same level as racial and religious hate crime. They have said that there is a case for recognising this as an aggravating factor. When it comes to an offence such as this, if it is proven that somebody has, for example, created a website where they have uploaded images and who seems to be systematically following women around to take these kinds of picture, should that be taken into consideration in the sentencing, in the way that could happen now with somebody who was racially or religiously motivated, so that the court could take into account the misogyny behind this?

Assistant Commissioner Hewitt:

I am not sure the circumstances you describe are about misogyny. For me, that is about somebody who is a more serious predatory sexual offender. I see this in sexual offending terms. I will be there on Thursday as part of the debate you describe.

Photo of Stella Creasy Stella Creasy Labour/Co-operative, Walthamstow

Q Will you be supporting the roll-out of Nottingham?

Assistant Commissioner Hewitt:

That is for the debate on Thursday. I do not want to pre-empt that debate. For me, this is about sexual offending. If it is proven that an individual has done this repeatedly, or has followed certain people, or is putting himself in certain places to do that, that is an aggravating factor that I would expect the prosecution—and ultimately, if they were convicted, the sentencing—to take into consideration, as opposed to the person where it appears to be a one-off issue.

Photo of Stella Creasy Stella Creasy Labour/Co-operative, Walthamstow

Q So do you think there is a case for an aggravating factor? The question is, what would it be under? If they had not picked out a particular type of woman to do this, but it was women, as the law is currently drafted we would not be able to recognise that in the sentencing.

Assistant Commissioner Hewitt:

But this will be women, in the way the Bill is drafted at the moment, will it not?

Photo of Stella Creasy Stella Creasy Labour/Co-operative, Walthamstow

Q But, for example, if somebody had targeted women in this way, but targeted every type of woman—there was no particular pattern, as opposed to somebody simply targeting women systematically to do this—and was clearly showing hostility to them as a category of person because they felt an entitlement to be able to do this, is that something the courts could look at?

Assistant Commissioner Hewitt:

That sounds fairly complex to me and you would have to ask the courts to answer that question. I see where you are going. I think I would keep this more purely in the realm of sexual offending and the pattern of behaviour of that person as a sexual offender. Whether that is about an approach in a relationship with women is a different thing.

Photo of Stella Creasy Stella Creasy Labour/Co-operative, Walthamstow

Q So the Dapper Laughs person who gets their jollies from putting up pictures of women in compromising positions but does not take sexual gratification from them is not a particular category of person that you think we should be challenging?

Assistant Commissioner Hewitt:

I do think we should be tackling them; it is just whether this is the right legislation to tackle them with. I think the courts will have to consider that.

Photo of Roger Gale Roger Gale Conservative, North Thanet

We have three minutes left. I cannot call other Members because I must bring the Minister in at this stage. We have to finish at 10.30 am.

Photo of Lucy Frazer Lucy Frazer The Parliamentary Under-Secretary of State for Justice

Q I have one short question. Assistant Commissioner, on exercising discretion as to how to treat young people, you said that you were often criticised, you had to exercise your judgment and there were challenges in these things. Do you think it is important that the law is clear—not only that the act that you are asked to prosecute is clear, but that the motivations and purposes that you are asked to decide on as to whether they constitute that offence are clear as well? Will that make your job easier and therefore ensure more prosecutions?

Assistant Commissioner Hewitt:

Yes, we need that clarity, which covers the act itself. From the way I have seen the legislation drafted, that seems fairly clear to me. As with any crime, you are then looking to the motivation of the offender. In this instance, as we discussed in one of the earlier questions, clarity about the motivation around their personal gratification, and clarity about the impact on the victim as well, is really important to allow us to be able to balance both those elements in prosecuting.

To be honest, it is quite hard to think of another motivation for taking a photograph up someone’s skirt. The Bill seems pretty clear to me in the way it is drafted at the moment. As someone who has investigated quite a few crimes over the years, I would be fairly confident that if I had the evidence that somebody covertly took a photograph up someone’s skirt and I had the evidence of what that photograph showed, I would be in a pretty good position to get that person charged with that offence—or whatever disposal we chose. It seems pretty clear to me.

Photo of Roger Gale Roger Gale Conservative, North Thanet

Thank you. I apologise to those Members who have not been called this morning. I have made a note of the names and I will endeavour to give at least some sense of priority this afternoon. I apologise, but the clock has beaten us.

Mr Hewitt, thank you very much for taking the time and trouble to see us and for the excellent evidence that you have given. We know how busy you are and how precious your time is. I think I am probably right in saying I am the only person in the room who has also held a warrant other than you and I particularly appreciate the fact that you are here this morning. The Committee will sit again at 2 o’clock this afternoon and we shall hear evidence from the Chair of the Women and Equalities Committee.

The Chair adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Two o’clock.