My Lords, as the noble Lord, Lord Marks, has explained, this group of amendments all relate to
what is commonly referred to as revenge porn, as provided for in Section 33 of the Criminal Justice and Courts Act 2015. Amendments 216 and 217 seek to extend significantly the scope of the offence, but the Government consider that the offence is working well. I am pleased to see my noble friend Lord Faulks in his seat; as he said, there have been more than 60 convictions for the offence since it came into force in April last year.
The offence is deliberately tightly drafted to target those individuals who have disclosed private and sexual images without consent, and with the intention of causing distress to the individual depicted. We are not persuaded that a sufficiently strong case has been made for broadening the scope of the offence, as proposed by the two amendments.
The general effect of Amendment 216 would be to significantly extend the range of material that could be considered private and sexual for the purpose of the offence. Currently, the offence is drafted to capture material that is sufficiently sexually explicit that its dissemination would be likely to cause real distress to those depicted. The offence also provides that images that are photoshopped—for example, so that a non-sexual image of an individual becomes sexual—should not be covered by the offence. This is because the disclosure of such an image, though still distressing, does not have the potential to cause the same degree of harm as the disclosure of an undoctored photograph showing images of the kind referred to in Section 35(3) of the 2015 Act. The noble Lord, Lord Pannick, made some interesting observations to that end. To alter the definition of “sexual” as proposed in Amendment 216, would, in our view, unjustifiably extend the scope of the offence.
Regarding the extension of the offence proposed by Amendment 217, we see no need to capture those who threaten to post such images. The offence, rightly, deals only with the act of actually disclosing private and sexual images, as it is the disclosure of the images that causes the harm which criminalising this behaviour seeks to prevent. As my noble friend Lord Faulks says, threats to disclose could, depending on the circumstances, be captured by existing offences that tackle harassment, malicious communications or, of course, blackmail. It is also difficult to see what would be gained by including an intention to cause fear or alarm to the victim, as distress is sufficiently broad a term for these purposes. Amendment 217 also seeks to make it possible for the offence to be committed recklessly as well as intentionally. The offence is targeted at those who deliberately seek to cause distress to victims through the dissemination of private and sexual material. This malicious intent—the revenge element of revenge porn, so to speak—is a key feature of the offence and we believe it would be wrong to dilute this by applying the offence to conduct that is the result of recklessness rather than a deliberately malicious act. Similarly, the proposal to extend the offence to those who,
“knowingly promote, solicit or profit”,
in relation to revenge porn material would shift the emphasis from those who disclose the relevant images with malicious intent, the mischief which this offence is intended to address.
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Amendment 218 seeks to make specific provision enabling a court to make a compensation order where the offender is convicted of the offence of revenge porn. The noble Lord is right to highlight the issue of compensation for victims of these crimes. However, the courts already have significant powers to require offenders to financially compensate their victims for the harm and the hurt that they have caused. The compensation order may be imposed for any offence, as a sentence in its own right or as an ancillary order, in addition to another disposal. Courts are obliged to consider making a compensation order in all criminal cases where personal injury, loss or damage has resulted, under Section 130 of the Powers of Criminal Courts (Sentencing) Act 2000. “Personal injury” in this context includes mental injury, and sentencing guidelines are clear that mental injury includes:
“Temporary mental anxiety (including terror, shock, distress)”.
My noble friend Lord Hailsham asked about appeals and my noble friend Lord Faulks helped me out somewhat on that. My understanding is that a compensation order forms part of the sentence of the court, so may be appealed to the higher court in the normal way. Appeals against a sentence imposed by a magistrates’ court are to the Crown Court, and from the Crown Court to the Court of Appeal, which I think is what my noble friend said.
As regards Amendment 219 and anonymity for victims, judges already have discretionary powers to prohibit the naming of witnesses, including victims, if identifying them would cause undue fear or distress, preventing their co-operation and adversely affecting the quality of evidence at the trial. There are also other special measures to support vulnerable and intimidated witnesses so as to improve the quality of their evidence, such as the use of screens in court or video live-link from a separate location. The Government consider that these current arrangements strike the right balance between protecting victims and upholding the general principles of openness and transparency in court.
The so-called revenge porn offence has been in force for a little more than 18 months, as my noble friend Lord Faulks said. As I have indicated, the evidence we have in terms of the number of prosecutions is that it is working well. Of course, it is absolutely right that the operation of any new offence such as this should be kept under review, and the Criminal Justice and Courts Act 2015 will be subject to post-legislative review in the normal way. But these are still relatively early days for this offence. We believe that it is properly targeted and that it is certainly too soon to contemplate the significant extension of the offence in the way proposed by Amendments 216 and 217. In relation to Amendments 218 and 219, I hope I have been able to reassure noble Lords that the existing powers for the courts to award compensation to victims and to protect the identity of witnesses in appropriate cases are sufficient. With that, I hope that the noble Lord will be content to withdraw his amendment.