Sexual Offences Bill [Lords]

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Mr. John Randall (Uxbridge): The hon. Lady described a naturist beach. She said that there was a sign up about it. One of my innocent hobbies, which I share with the Government Whip, is birdwatching. The problem will probably apply to the next clause,

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but if I were wandering along that beach with binoculars, would I be caught by the Bill?

Paul Goggins: At this point, I shall respond to the hon. Lady. The key point about naturists and the reason why I am confident that they will not be caught by the clause is that, unless a naturist intends to cause alarm to others, he will not be caught. The key point is the intention. We accept in good faith that it is not the intention of naturists to cause alarm or distress. I hope that I have reiterated my assurance to the Committee that I believe that naturists will not be affected by the Bill.

Mr. Grieve: The hon. Lady may have a point that the Under-Secretary has not quite answered. What about a naturist who occupies a beach in a public thoroughfare that is traditionally used by naturists? Clearly, he goes there intentionally to expose his genitals, but he knows that an individual walks along that beach who suffers great alarm and distress each time he sees the naturist. Does the naturist commit the offence because he knows that someone will see his genitals and be caused alarm or distress, but decides that, because the person is so unreasonable, he will go ahead with his activities? That ties in with the hon. Lady's amendment about whether the clause should read ''knows and intends'' as opposed to ''knows or intends''. The Under-Secretary did not answer that point.

Paul Goggins: We are back to the issue of whether the naturist ''intends''. In the scenario outlined by the hon. Gentleman, there is clearly no intention.

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Mr. Grieve: This is critical, and the hon. Lady's point is good. No prosecution would ever lie, but it is technically possible to commit the offence without any intention at all if a person exposes their genitals in circumstances where they know that someone will see them and be caused alarm or distress. We come back to the question of how reasonable that alarm or distress may be. People could be walking backwards and forwards on a nearby public footpath, and the naturists who occupy the beach could be in a constant state of anxiety that all it needs is for someone to see them and say that they are alarmed or distressed and—hey presto—they have committed the offence.

Paul Goggins: The hon. Gentleman seems to have some enthusiasm for his argument. I shall respond to the question why we do not state knowledge as well as intention. It may allay the concerns of hon. Members, including those of the hon. Gentleman.

If we added the requirement of knowledge, it would mean that in every case of prosecution the witness would have to give evidence that they were caused alarm or distress. That would allow an escape route or get-out clause for a genuine offender because there would have to be a witness in the witness box demonstrating and giving evidence that the event had caused them distress. That would not be appropriate. I hope that offers some reassurance.

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Mr. Bryant: I am grateful to my hon. Friend, who has made an important point, which tells against the hon. Lady. The only time that I have been to Studland bay was when I did a parachute jump out of the back of a Hercules aircraft and we landed there. Since I was dressed as a vicar at the time, naturists on the beach might well have thought that they were about to cause offence and alarm. Presumably, there is also the matter of someone lying asleep on a nudist beach who could not be thought to have any intention, but who might cause offence.

Paul Goggins: I simply make the point again that offence is certainly not their intention and it is certainly not done knowingly. I do not believe that the clause as drafted gives any room for concern, and the naturists going about their normal activities on the beautiful beach in the hon. Lady's constituency have nothing to worry about.

The hon. Lady raised the issue of sexual gratification and advanced the argument for why—

Sandra Gidley: I am still not convinced by the hon. Gentleman, and I wonder whether he can answer this question. A person might have to walk along the beach at Studland or elsewhere regularly, but they might not like it and be distressed, and they could decide to bring a prosecution. The hon. Member for Beaconsfield is right: the person being prosecuted might have known that the other person was distressed, and that means—surely—that he is committing an offence. However, the nudist may not have intended to cause any great embarrassment or distress, so the problem is doing the watching rather than being watched.

Paul Goggins: I am in danger of disappearing down a plughole here, but I shall make a valiant attempt to respond.

In relation to knowledge, there must be alarm or distress. On proving intent, it does not need to be proved that there was distress. In the hon. Lady's question, it was clearly not the intention of the person she described to cause alarm or distress. Naturists do not need to fear that they will be caught by this clause.

Mr. Randall: I recently read about the naked rambler. I do not know whether he was trying to cause harm or distress, or whatever. My impression from the reports was that he was not, but that he caused it anyway.

Paul Goggins: Well, it is his intention that matters. As I recall, he intended to walk from Land's End to John O'Groats, not to cause alarm or distress, so he would not be covered by this piece of legislation.

Mr. Dawson: Did he wear boots?

Paul Goggins: Indeed, he wore a very sturdy pair of boots.

The reason why we did not see fit to include sexual gratification in this part of the Bill is that exposure can be part of an act of aggression, or loutishness. In such circumstances, there would be the intention of causing alarm or distress—and that should be covered. Such individuals would be missed out if there only had to be sexual gratification.

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The hon. Member for Mid-Dorset and North Poole also asked about registration. Exposure can, in certain circumstances, be a serious, distressing offence, so it may be appropriate for there to be registration. Registration would apply if the victim were under 18, or if the offence were so serious that it warranted a prison sentence or a 12-month community penalty. Such penalties would signal that it was an extremely serious offence. For less serious offences there would not be registration.

Mr. Malins: It has been a good debate—we may return to it on Report. I pause only to say that I am not entirely sure whether that is ever worth a trial on indictment. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mrs. Brooke: I do not wish to press my amendment to a vote, Mr. Gale.

Clause 68, as amended, ordered to stand part of the Bill.

Clause 69 ordered to stand part of the Bill.

Clause 70

Voyeurism: interpretation

Amendments made: No. 97, in

clause 70, page 34, line 2, leave out subsection (1).

No. 98, in

clause 70, page 34, line 3, at beginning insert

'For the purposes of section 69,'.—[Paul Goggins.]

Mr. Grieve: I beg to move amendment No. 240, in

clause 70, page 34, line 3, after

'structure', insert 'or enclosed space'.

Mr. Grieve: My concern, which is, perhaps, the reverse of that expressed in the previous debate, is about the definitions clause on voyeurism. Clause 70(2) says:

''A person is doing a private act if the person is in a structure''.

What is a structure? The Under-Secretary may be able to help us on that. When I read the word structure, giving it its ordinary meaning, I associate it with something that has a wall and a roof. I am concerned that this definition appears to sanction or allow voyeurism in circumstances in which privacy was provided by an enclosed space, and the voyeur, for whatever reason, decided to intrude on that enclosed space by, for example, making a hole in a partition or wall. To make the position clear we should include the words ''enclosed space'', which I would take to mean a garden, if it were surrounded by a high wall and could not be overlooked. The words ''enclosed space'' must be read in conjunction with what comes after them—

''in the circumstances, would reasonably be expected to provide privacy''.

Obviously, a garden wall surrounded by tower blocks could not reasonably be expected to provide privacy; however, a garden could be expected to do so if it were not overlooked, and if the only way that one could overlook it was by getting a tall ladder and climbing up it in order to peer in. We should think about extending the protection to that setting.

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That point—to come back to our earlier debate—has relevance to naturists, who may wish to congregate in an area that is not a structure as I would interpret it. We should consider extending the protection to those doing private acts in enclosed spaces if, in the circumstances, the spaces could be reasonably expected to provide privacy. That is an extension of the definition of ''structure'' that would be proper.

The Under-Secretary may try to reassure me that ''structure'' would encompass an enclosed area but, using my ordinary understand of English, I do not think that it does; I think that a structure denotes something that has walls and a roof, although I accept that one might use the definition of a ruined structure that was roofless. The hon. Gentleman may be able to help me. I would like to provide the maximum protection to people in areas that they can reasonably consider private. Obviously, if a garden is surrounded by a fence that can be looked over by anyone who looks around, those in it should not have that protection.

However, considering the surrounding circumstances reasonably, if anyone wishing to peer in has to carry out what I would describe as a pretty abnormal activity, such as getting on a ladder, there should be a possibility of extending that definition. I accept, however, that if a structure requires a roof, there is the difficulty of people flying over by helicopter and things of that sort, and that might present a problem. However, before we agree to this laudable clause, I hope that we will take an opportunity to see whether the definition could sensibly be extended.

 

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Prepared 18 September 2003