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Baroness Noakes: Before the noble Baroness, Lady Walmsley, decides what to do with her amendment, I should like to say that while I would welcome the noble and learned Lord, Lord Falconer of Thoroton, adding his name to Amendment No. 349, I suggest that he does not need to do so because his Amendment No. 348A achieves the same effect.

Baroness Walmsley: I very much welcome the removal of "recklessness" from the clause, but I am still not convinced that there is adequate protection for people such as naturists, streakers and artists' models in what the noble and learned Lord proposes. I do not intend to press the amendment at this stage. I shall read carefully what has been said. It is very important that we do not put in barriers to getting a conviction where we should get one. There needs to be a balance

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between that and overly risking the criminalisation of perfectly innocent people. It is a question of looking at the balance of the two in the Bill and coming to a conclusion. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton moved Amendment No. 343A:


    Page 32, line 1, at end insert "and"

The noble and learned Lord said: I have already spoken to this amendment. I confirm that the noble Baroness, Lady Noakes is, as ever, completely right. Amendment No. 348A does the trick and therefore I do not need to support Amendment No. 349, much as I would like to. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 345 to 348 not moved.]

Lord Falconer of Thoroton moved Amendment No. 348A:


    Page 32, line 2, leave out from "them" to end of line 6 and insert "and be caused alarm or distress."

On Question, amendment agreed to.

[Amendment No. 350 not moved.]

Clause 70, as amended, agreed to.

Clause 71 [Voyeurism]:

Lord Falconer of Thoroton moved Amendment No. 350A:


    Page 32, line 13, leave out subsections (1) to (3) and insert—


"(1) A person commits an offence if—
(a) for the purpose of obtaining sexual gratification, he observes another person doing a private act, and
(b) he knows that the other person does not consent to being observed for his sexual gratification.
(2) A person commits an offence if—
(a) he operates equipment with the intention of enabling another person to observe, for the purpose of obtaining sexual gratification, a third person (B) doing a private act, and
(b) he knows that B does not consent to his operating equipment with that intention.
(3) A person commits an offence if—
(a) he records another person (B) doing a private act,
(b) he does so with the intention that he or a third person will, for the purpose of obtaining sexual gratification, look at an image of B doing the act, and
(c) he knows that B does not consent to his recording the act with that intention."

The noble and learned Lord said: Government Amendments Nos. 350A, 351A and 352A reframe the offence of voyeurism at Clause 71. It is a new offence, so we are concerned to achieve as good a definition as possible. The amendments revise subsections (1), (2) and (3) of Clause 71 as drafted, include a minor amendment to subsection (4) and provide a new interpretation clause to follow Clause 71.

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On reflection, we had concerns that the offence as drafted in subsection (1)(a) criminalised those who looked at a moving or still image recorded through voyeuristic means. We thought there were problematic issues about criminalising simply looking at something unless it was an indecent image of a child which is already, in certain circumstances, against the law. It would often be difficult to establish whether that person knew that the person in the image did not consent to the image being recorded or viewed unless, of course, the author was responsible for recording the image. But the offence could potentially have caught readers of pornographic magazines, which seemed to us to be going too far.

These amendments remove from the offence completely the provision relating to looking at an image. They mean that the offence would then cover in subsection (1) a person directly observing, for his own sexual gratification, another person doing a private act, knowing that other person did not consent. This would include, for example, looking at someone having sexual intercourse through a window or peephole where the observer knew the person observed did not consent to being looked at for this purpose and where the observer looked in order to gain sexual gratification. This was already an offence under Clause 71 as drafted.

Subsection (2) would cover a person operating equipment with the intention of enabling someone else, for their sexual gratification, to observe a third person doing a private act where the operator of the equipment knew that the person being viewed did not consent to it. This would cover, for example, a landlord operating a webcam in his tenant's bedroom to allow people on the Internet using a pornographic website to view, for their sexual gratification, live images of his tenant getting undressed if he knew that the tenant did not consent to being so observed.

Subsection (3) would cover someone recording another person doing a private act with the intention of looking at the recording for his own sexual gratification or intending other people to look for their sexual gratification where he knows that the person does not consent to the recording of that act with that intention. This would cover the person who secretly films someone masturbating in their bedroom and distributes the images to others for their sexual gratification. Proof that the intention was the sexual gratification of others could be derived from, for example, the fact that the image was posted on a pornographic website or in a pornographic magazine.

In contrast to Clause 71 as drafted, the person recording the image would be caught by the offence, whether or not those looking at the image know that the person filmed does not consent to the image being shown for the purpose of sexual gratification and did not consent to the filming. The offence would not catch anyone who published the image because we feel this strays too far from the nub of the offence, which is the covert observation, for the purpose of sexual gratification, of someone engaged in a private act.

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Subsection (4) of the offence remains as drafted in the Bill except for the removal of "or operates" in line 34. The operation of equipment is now covered for live observation by the offence at subsection (2) and for recorded observation by the offence at subsection (3). Subsection (4) covers a person who installs equipment, or constructs or adapts a structure or part of one with the intention of enabling himself or another person to commit an offence under subsection (1). This would cover someone who, for example, drilled a spyhole or installed a two-way mirror in a house or made a hole in the canvas of a changing room in a market stall selling clothes with the intention of spying on someone for sexual gratification or allowing others to do so. The person who installed the equipment would also be caught even if the peephole or mirror was discovered before it was used.

Subsection (4) does not cover a person who installs equipment with the intention of enabling a person to commit an offence under subsections (2) or (3). We consider that an offence of this nature would be too complicated. A jury would have to consider whether a person installed equipment with the intention of enabling another person to record a third person doing a private act with the intention of enabling a fourth person to obtain sexual gratification from looking at the image. However, if a person installs equipment in such circumstances, he may still be guilty of conspiring to commit a subsection (2) or (3) offence or of aiding and abetting such an offence.

The new clause after Clause 71 offers interpretation to the terminology used in Clause 71. With one exception, this interpretation is the same as that already in the Bill as drafted but has simply been moved to a new stand-alone clause for the purposes of clarity. The one exception is that there is now a definition of "observation", which makes it clear that observation can cover non-direct observation, for example, where a person observes another by using a mirror.

I apologise for the length and, to some extent, the complexity of this explanation, but I think it is of value to the House that I describe the amendments in some detail. I beg to move.

7.45 p.m.

Lord Skelmersdale: In describing the amendments, the noble and learned Lord used the words "engaged in". I am not sure if it is normal drafting, but in Amendment No. 352A, under the proposed subsection (2) a person has to be "doing a private act" rather than being engaged in a private act. Is this normal drafting terminology? It strikes me as a little strange.

Baroness Noakes : Amendment No. 351 is separately grouped on the groupings list, but it will be pre-empted if the government amendments are passed, as I expect that they shall be since we have no major problems with them. I wish to speak to the amendment, however, so that my concerns are on the table.

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The amendment would not fit in today, but I may wish to return to it on Report. It again relates to the concerns of naturists and how they are covered by the new offence of voyeurism. The offence of voyeurism means a "private act" under the current subsection (2). There is no requirement for the exposure to be sexual, but it must be in a structure. Naturists, however, whether within or outside of structures, have a problem with peeping Toms. The essence of naturism is that naturists are often outside, often on their own land and screened as far as they are able to keep people from looking in, as they have no desire to be seen by people who are not in their own group.

The amendment is designed to capture those who are outside and in naturist areas, but subject to the unwanted attentions of peeping Toms. The concerns of naturists are to be able to operate in privacy and not be subject to peeping Toms. I hope that it is not too much out of order to speak to the amendment, but otherwise it would be pre-empted.


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