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Baroness Noakes: I welcome the Government's Amendments Nos. 343A and 348A, which are in this group. It shows that they have listened to the concerns expressed about Clause 70, in particular by naturists but also by artists' models. The noble Baroness, Lady Walmsley, outlined naturists' concerns. I am sure that the Minister knows that many have taken the trouble to write to noble Lords who are taking part in the debates on the Bill. Naturists are a minority who intend no harm to others and simply want to be allowed to practise their way of life in a law-abiding way.
I am pleased that the Government have removed the element of recklessness from the offence, but I have a residual concern about Clause 70 as it will stand after the government amendments. Unlike the rest of the Bill, it does not deal with a sexual offence: it does not directly or indirectly refer to a sexual act. That partly lies behind the amendment in the name of the noble Baroness, Lady Walmsley.
One could say that using the word "genitals" implies some form of sexual activity, but that cannot be the case as a matter of construction. That is why I tabled Amendment No. 346 to require the exposure to be sexual. I have not required the intention to be sexual, as the noble Baroness, Lady Walmsley, prefers: I am making sure that the act of exposure is in itself sexual. That problem may remain after the Government's amendments to remove the recklessness element.
I shall use the example of a naturist on Brighton's naturist beach to illustrate my concerns. By way of background, British Naturism commissioned a public opinion poll in 2001 that found that, although the vast majority regarded naturists as harmless, 2 per cent regarded their activities as criminal and 7 per cent thought them disgusting.
Let us consider the effect of the Bill after the Government's amendments for a naturist on the naturist beach in Brighton, which I am told exists. A naturist intentionally exposes his genitals; that is what naturism involves. He knows that someone will see them because, I understand, the naturist beach at Brighton is not especially well screened from the rest of the beach. He also knows that a person who sees them may well be caused distress, because the person may be one of the 7 per cent and the naturist knows that if one of them is there and sees his genitals, that person would be caused distress.
When we discussed the previous amendment, I raised the case in relation to women either breast-feeding or sunbathing nude. If breasts were included, the same question would arise of whether that activity, even if it could distress only a minority of people, would still fall under the clause, because it is not limited to sexual acts, unlike the rest of the Bill, which deals with sexual activity in one way or another.
So how can the Minister be sure that by removing recklessness, he has in effect produced the protection that is required, which could easily be achieved by including an amendment such as mine in the Bill?
Lord Campbell of Alloway: I support the amendment; it is wholly essential. What happens if an elderly gentleman gets caught short in his motor car on the way home? First, he intentionally exposes his genitalia to spend a penny. Secondly, he knows that someone will see him, if he happens to be in an urban area. Thirdly, he knows not only that the person who sees him will be caused distress, but that he himself will be caused distress.
We must take on board the point made by my noble friend Lady Noakes: the intention must not be to expose one's genitalia when one gets out of a car to spend a penny; it must be in some sexual context. The amendment would save the old gentleman. I wholly support it and I hope that the noble and learned Lord will treat this rather jocular intervention somewhat seriously.
Lord Lucas: I have tabled three amendments in this group, although in fact I would be delighted if the Government were to accept the amendment moved by the noble Baroness, Lady Walmsley, which, I think, really deals with the problem at its heart.
We are here trying to deal with flashersdisgusting characters they are; I have come across them on too many occasions. We are not trying to deal with someone who for some other reason exposes his genitals. I would especially cite in this context the streaker. I do not want someone who streaks at a Lord's cricket match stuffed on the sex offenders' register. That is not a sexual offence; it may be due to a bit of alcohol and exuberance; but it has nothing whatever to do with intentionally offending the public.
If the Government do not want to pursue that route, there are other points that I wish to make and that are made by my amendments. First, I do not see that the law has or should have any part to play in what
Baroness Mallalieu: I support my noble and learned friend's Amendments Nos. 343A and 348. I am delighted that he has paid attention to the letters that I know that all of us who have played a part in the Bill have received. Indeed, I must say that the naturists have conducted a superb campaign. They have made their points forcefully with superb individual letters. Few of us who have been on the receiving end can have received as large a post bag on many issues.
What is unfortunate is that they felt it necessary to do so in the first place. I know that others have said it at other stages, but I am bound to say that if the Bill had received proper pre-legislative scrutiny, we should not have alarmed a law-abiding group who, frankly, did not deserve to have to make the effort that they have to put right something that should have been made plain at the outset in even the most preliminary draft Bill.
That said, clearly we all accept that there is not only an offence but one that needs to be redefined. The noble Baroness, Lady Blatch, has referred to the prevalence of that offence; in my experience both personally and at the Bar, those that are reported and prosecuted are only the tip of the iceberg. There can be few youngish women who have not at some stage had experience of it, often running into double figures.
Mostly, they ignore it, because it is a fact of life late at night, especially when women are on their own or travelling alone. It can sometimes be shrugged off and ignored or treated as a joke, especially in company; but, equally, it can be extremely frightening late at night and extremely worrying for young people. It must be dealt with.
I hope that we will receive some guidance from my noble and learned friend. If I may say so, the question asked by the noble Lord, Lord Campbell of Alloway, about the elderly gentleman being caught short, is a defence which, as a member of the Bar, I have run on many occasions when defending people in such circumstances. It is very difficult to prove what is in the mind of the person accused of the offence.
I hope that the Government will state that, where there are instances of streakers, such as those referred to by the noble Lord, Lord Lucas, they do not intend to use the Bill to deal with such an offence. The clause
Baroness Blatch: Not for the first time, I fear, I find myself speaking alone on the Bill. The Government's new proposals for this offence are a retrograde step. They will radically weaken the protective element of the offence. I regret that.
I touched briefly on the scale of the problem of indecent exposure when I addressed Amendment No. 343, tabled by my noble friend Lady Noakes. That is a serious problem that requires a serious law to address it. I was therefore keen to keep Clause 70 as drafted in the Bill.
Clause 70 is currently a good attempt to deal with that social nuisance and certainly could not be said to be casting its net too widely. It requires, first, evidence of intentional exposure of the genitals; secondly, an intention or knowledge that someone will see the exposure; and thirdly, an intention, knowledge or recklessness that it will cause alarm or distress. The example cited by my noble friend does not fall into any of those categories.
If anything, rather than being framed too widely, I am concerned that the "alarm or distress" test could be interpreted too narrowly by the courts. It is easy to imagine defence lawyers pushing the test of what is genuinely alarming or distressing to the margins by pseudo-sociological claims that the public is more tolerant of social nudity. We now find, however, that the Government are capitulating to pressure from nudists and making the test even harder. Whereas under the current wording a conviction can be secured where a person is "reckless" as to whether he causes alarm or distress by exposing his genitals, Amendments Nos. 343A and 348A raise the bar and require that he intended to cause alarm or distress, so causing alarm or distress would not be enough on its own.
Proving that intention may be extremely difficult. A man may stroll naked along the high street and enter a supermarketit has been doneterrifying children and families as he goes, but if he can prove that he had no intention of causing alarm or distress he will be acquitted. Certainly government Ministers seem prepared to go a long way in defence of those who expose themselves in public.
In his evidence to the Home Affairs Committee on 29th April, Home Office Minister Hilary Benn made it clear that he did not wish to see this offence restricting the activities of naturists or activities such as the mass display of public nudity which took place just across the river at the opening of the new art gallery in County Hall. The White Paper which introduced this
Surely that marks a great inconsistency in the Government's approach. On the one hand, a Home Office Minister says that the alarm or distress caused is the key factor. On the other hand, the Minister is today moving an amendment which requires proof, not that alarm or distress was caused, but that the perpetrator intended to cause distress, a much more difficult test. Even if that was in fact alarm or distress, it will be a defence to say that it was not intentional. Presumably even a total lack of regard for whether anyone would be distressed is not enough, since that would be mere recklessness. In his evidence, the Minister volunteered the fact that the common law offence of outraging public decency would operate as a fallback if an incident of public nudity was not caught by Clause 70.
I shall speak briefly on the common law offence when we reach Clause 74. Suffice to say that it is a most unsatisfactory law with a very high test and a very low conviction rate. In practice, that means very low sentences. I am more concerned about where these government amendments will leave us.
There are people who claim to be quite serious about nudity as a form of political expression. They would argue that they had no intention of causing alarm or distress. An infamous example is that of Mr Vincent Bethell. According to one newspaper report, he had previously been diagnosed as a paranoid schizophrenic. It is clear that he is a man in need of help. He has been convicted repeatedly for stripping naked in public, something he claims to have done around 40 times, including in front of Parliament and Downing Street. He insists that it is all part of a campaign to urge people to get in touch with their humanity and to be less self-conscious about their bodies. Under the new wording, would Mr Bethell still be convicted? I think not.
Earlier this month, 160 people posed naked outside County Hall in the name of art. Under the new wording, it is difficult to imagine that the police could prove any intention whatever to cause alarm or distress on the part of those people. If scores of schoolchildren had been crossing Westminster Bridge
Then there are the naturists. On 8th April, the chairman of the Central Council for British Naturism gave evidence to the Home Affairs Committee about Clause 70. He complained that, to some, naturism is,
I shall comment briefly on the other amendments in the group. Amendment No. 349 deletes subsection (2). Although the Minister's name is not added to it, I assume he will adopt it since his own amendment, Amendment No. 348, does not make sense unless subsection (2) is removed.
Amendments Nos. 344 and 346 would also severely restrict the usefulness of Clause 70. Amendment No. 344 requires proof that the perpetrator intended to obtain sexual gratification from exposing himself. Amendment No. 346 similarly requires that "the exposure is sexual". Requiring proof that the perpetrator had a sexual motive could impose an impossible burden on prosecutors in many cases. Courts may have to deal with spurious claims from defendants that they were exposing themselves for reasons of art, culture, personal freedom or for other non-sexual purposes. The amendment would guarantee that people like Vincent Bethell could go naked wherever they liked without fear of conviction since they could easily adduce evidence, in the form of pamphlets and past speeches, that there was no sexual motive to their exposing themselves.
If someone is, as it were, a bona fide naturist with no sexual motive for exposing himself, these amendments would give him a legal right to stroll naked in public places. In some cases, proving a sexual motive will require a form of mind-reading since the only person able to give evidence of the defendant's intention is the defendant himself. Furthermore, those who do have a sexual motive for undressing in front of strangers could quite easily make a false claim that they were naturists. This would present prosecutors with the difficulty of disproving their claim.
The fact is that most victims of this kind of exposure will not care about the motive. If a mother with young children is confronted in a shopping arcade by a naked man, causing confusion, distress and fear to her
Again, Amendment No. 345 would constitute an unnecessary restriction on the usefulness of this offence. It is a mistake to create a defence for the man who exposes himself somewhere which is not in itself a public place, but from where he can be seen by members of the public. For instance, would a man who stood naked in a shop window be able to escape prosecution under this amendment?
The effect of Amendment No. 347 would be to require proof that the defendant both "knows" and "intends" the consequences of his actions. This makes the mens rea for this offence more difficult to prove. Knowledge and intention are usually alternatives in criminal offences, the presence of either of which allow the court to conclude that there is a guilty mind. Confusingly, Amendment No. 348 appears to lessen the burden on prosecutors by deleting the requirement that there is knowledge or intention that his exposure will be seen.
As Members of the Committee will see, I have many concerns about these amendments. I have spoken at length deliberately because I think that the other side should be heard. I fear that the amendments would not improve the clause. Indeed, they risk substantially undermining its original effectiveness.
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