Meeting of the Parliament 22 March 2016
Amendment 29 is similar to my stage 2 amendment 4, which I lodged but did not press after agreement to discuss its intention further with the Cabinet Secretary for Justice and his officials. I am grateful for their assistance in drafting this improved version and for their investigation into some of the wider issues that cannot be addressed in the bill but will, I hope, be pursued in the next session of Parliament.
Professor Erika Rackley of the University of Birmingham and Professor Clare McGlynn of Durham University submitted written evidence to the committee. They welcomed the creation of a new offence that will criminalise disclosure of an intimate film or photograph without the consent of the subject. They were concerned, however, about disclosure of sexual images that are taken without consent in a public place, such as those that are obtained through the objectionable practices of upskirting and downblousing.
Upskirting—the taking of photographs of genitals, buttocks or underwear in a public place without the consent of the individual—is covered by section 9(4B) of the Sexual Offences (Scotland) Act 2009—indeed, such a case was brought to Dumfries sheriff court only a couple of weeks ago. However there is no legislation that covers the distribution of such images, and unfortunately such images appear on websites that are created for that purpose. In May 2015, one such site was exposed by the Mail on Sunday; it was estimated to be receiving 70,000 views a day and to be valued at £130 million.
I am grateful to the cabinet secretary’s officials for the work that they have done between stages 2 and 3—which included seeking the views of the Lord Advocate—to investigate whether distribution could be included in the scope of the bill, but unfortunately there has not been time in the current session to draft robust amendments to that effect.
I think that the cabinet secretary agrees that the issue should be revisited in the next session of Parliament when, I hope, further legislation on coercive control and sexual exploitation will be considered. However, it has been possible to address circumstances in which intimate photographs are taken in a public place of someone who has been subjected to an act by another individual. If amendment 29 is agreed to, the defence will not apply when B was the subject of an intimate film or photograph
“as a result of a deliberate act of another person to which B did not agree”.
Victims will be protected from a perpetrator’s sharing of such images because the “public place” defence will not be available.
The person who takes such images will be committing an offence if they share them, although the provision does not cover further distribution of such images by others beyond the taker of the photograph. Someone who took a photograph of a victim who had been stripped or was being sexually assaulted, for example, would commit an offence if that photograph was distributed, but someone who took a photo of a streaker or a naked rambler and shared that photograph would be able to use the “public place” defence.
I am not a lawyer, but I think that amendment 29 would also apply to people taking upskirting images and subsequently distributing them. An upskirting image would be an offence under the Sexual Offences (Scotland) Act 2009, but distribution of the image would become an offence under the bill as it will be amended by amendment 29. I think that we are going some way towards where we want to be in achieving that policy intention, and I am grateful to the minister and his officials for their assistance in drafting the amendment.
I move amendment 29.