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The noble Baroness said: My Lords, in moving Amendment No. 3 I hope that our happy agreements are going to continue. I have tabled it to give the Government the opportunity to carry out a commitment that I learned of recently. It would create a new offence of recording a criminal offence for personal gratification—something otherwise known in the newspapers as “happy slapping”.

Noble Lords will be all too well aware from those press reports that there has been much concern about the prevalence of a new sort of activity. People with ready access to a camera phone or smart-phone that can take still or video pictures can use them to record a criminal event. That usually involves a group, perhaps kicking, beating or sometimes even raping an individual. The pictures are then transmitted to others so that they can all have a good laugh at the victim and applaud the criminal. Often, the pictures are posted on the internet. To take the footage is a despicable way to behave. The whole purpose behind it is for people to enjoy watching—not to encourage others to commit the offence, which would obviously be a conspiracy—but simply for the person in some sick way to enjoy what they see.

Incidents reported in the press here have ranged from minor assaults to the killing of the Soho barman, David Morley, in a gang attack on the South Bank in London in October 2004—all recorded and circulated on mobile phones. I am aware that the mobile telecoms industry has put in place measures to assist in the prevention and detection of such behaviour. I am grateful to Aleyne Johnston, the

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government and public policy executive at Orange, for her very helpful and detailed briefing on these matters and for her support for my amendment.

The amendment introduces a new offence that would make it illegal for any person intentionally to make an audio or visual recording of a criminal offence for the purpose of obtaining gratification for himself or another. I am trying to ensure that those who record criminal events for the purposes of prosecuting them are not caught out by the new offence. I want to protect the police and journalists who take pictures and pass them on to police, using them in a perfectly laudable way. I also want to protect those quick-thinking members of the public—for example, those who were present at the horrendous events in London last summer—who take video footage or still pictures on their cameras and hand them over to the police. The pictures taken then were invaluable in backing up CCTV footage.

I intend to protect all those innocent applications of the use of mobile telephony to take pictures, while trying to target those who take pictures for a sickening purpose. I believe that the drafting ensures that only those who are seeking to obtain gratification for themselves or another would be committing an offence. Police, journalists and members of the public who take pictures for detection, prevention, solution or reporting of crime would not fall foul of the offence. They are clearly not seeking to obtain gratification for themselves or another. Neither are the police when they take videos of offences such as dangerous driving on the motorway and then allow them to be shown on TV. That is clearly for educational reasons—to deter others from committing offences.

I did not move my original amendment on Report, having debated it in Committee, because the Government indicated that they were not prepared to make any concessions on the matter. Although I felt strongly that my amendment was the right thing to do, I did not wish unnecessarily to take up the time of the House at that stage at a late hour. However, developments since Report have persuaded me that I should bring back my amendment on Third Reading, so that the Government can provide an explanation and clarification of comments made by the right honourable gentleman, Jack Straw, in Business Questions in another place just last Thursday. I have redrafted my original amendment so that it includes a new subsection (2) to respond to the specific point made by Mr Straw.

He was asked by Iain Wright, the Labour MP for Hartlepool, whether he would arrange for time to be given to a debate on YouTube. Mr Wright said that he was concerned about a posting on it from his constituency entitled, “Milton Road Fight Club”. It shows a man being attacked in the street and kicked in the face until he is unconscious. Mr Wright said that he was worried that,

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I entirely agree with him. Mr Wright went on to ask for a debate so that Members of another place could discuss how they might help to stop the problem.

Lo and behold, Mr Straw’s response was to state that the Commons did not need time for a debate because it was already in the pipeline. He said that another place,

But, in Committee, the Government had already rejected my amendment to deal with happy slapping, so how on earth would another place have the opportunity to discuss that, unless the Government are minded to accept my amendment today? My new subsection (2) does exactly what Mr Straw hoped that his honourable friend Mr Wright would do: it makes it an offence for anyone to upload or place on the internet an audio or visual recording made for the purpose of obtaining gratification for himself or another. The word “gratification” already appears in legislation, but I understand from the Public Bill Office that the word “upload” does not yet. So, under its advice, I have used the words, “place on the internet”.

Presumably, the Government will now accept my amendment, as I am only doing what the Leader of another place wants—what he asked his honourable friend to do as recently as last Thursday; what he obviously thought that the Home Office had already agreed should be an amendment to the Bill. Without my amendment, no debate can take place in the Commons when the Bill returns to another place next Monday. Let us help another place to have that debate. I beg to move.

Lord Monson: My Lords, I share the condemnation of the noble Baroness of happy slapping, but I wonder whether her amendment is sufficiently tightly drawn. Obviously, what she has in mind is those who video rapes, muggings or fights outside a pub in which several men kick another man in the head while he is lying on the ground, and so on. In such cases, her amendment would be entirely justified, but there is no requirement in the amendment for the criminal offence to be a serious one. This may sound far-fetched, but suppose that a particularly unpleasant individual lived in a street who was disliked by all his neighbours and someone videoed him creeping out late at night to deposit illicit rubbish in someone else's recycling bin, or something like that, and all the neighbours got together to laugh at that individual’s misdemeanours being revealed.

More pertinently, perhaps, what about, heaven forbid, another 9/11? Let us suppose that someone were to video an al-Qaeda plane crashing into a skyscraper on Canary Wharf and hand the video over to the police, assuming that no one else had videoed it. Surely, it would not be wrong for him to keep it to show to his family and friends time and time again, just as—whether or not it is right for them to do so—people enjoy seeing a replay of the 9/11 tragedy

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when planes crashed into skyscrapers. It may be wrong of them to do so, but I suggest that millions of people do. I fear that that would be automatically caught unless more discretion is given to the prosecuting authorities to ignore such things. Even if the video were handed over to the police for the purposes of trying to track down and prosecutethe individuals concerned, it would still be an offence for the person who took the video to keep it for the purposes of replaying it to his family and friends.

Lord Thomas of Gresford: My Lords, I congratulate the noble Baroness, Lady Anelay, on bringing this idea forward in Committee and persisting with it at Third Reading, now that the Government have indicated their support for the basic idea. I, too, have some reservations about the drafting—I hope that the noble Baroness will forgive me for that. As drafted, it requires the prosecution to prove that the purpose of recording the criminal offence was to obtain gratification for the person making the recording or for the gratification of someone else. It would be better if a statutory defence were included, so that it was an offence for any person intentionally to make an audio or visual recording of a criminal offence and then, in subsection (2), for it to be a defence to show that it had been done for a legitimate reason—however that is expressed.

I am also concerned that we know about these things because the media publish them in a “shock, horror” way—“Look at what these people are doing!”. At the same time, one wonders whether there is not a secondary purpose in the publication of material of that kind. Although I applaud how subsection (2) is drafted, in the traditional Liberal way, I wonder whether it goes far enough.

7 pm

Lord Bassam of Brighton: My Lords, I am grateful to the noble Baroness for her introduction to happy slapping, and I congratulate her on her persistence in raising the issue again and on her diligence in following matters in another place. I will deal with this and other issues in turn.

As the noble Baroness has explained, the amendment attempts to tackle the unsavoury practice of recording offences, often on a mobile phone,for personal gratification, and publishing those recordings on the internet. It is clear that the aim of the amendment is to create an offence to ensure that any person who participates in happy-slapping incidents can be prosecuted under the law. I think we all agree that incidents of happy slapping can be vicious and traumatic for the victim, and the Government condemn the practice entirely, as does everyone else. We are therefore naturally sympathetic to the aim of the amendment. However, we have already done quite a lot of work to investigate the issue, and we have sought views from other government departments and agencies since the noble Baroness first raised the issue quite properly in Committee. We have tried to focus on identifying whether there is a gap in the legislation and, although we sympathise with the objectives of the amendment,

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we remain sceptical that there is a need for a new offence of recording a criminal offence, as proposed in the amendment.

The noble Baroness’s approach is not supported by ACPO or the CPS, which have told us that they know of no cases where prosecutions have failed or have not proceeded because of a gap in the law. There is already adequate criminal law to deal with anyone involved in an incident of happy slapping, and we are confident that any individual who is involved in such an incident in any way will be committing a criminal offence and will therefore be liable to be prosecuted for that offence.

Under subsection (1) of the amendment, a person who recorded a violent offence should be criminally liable, either because they also committed the offence being filmed, or because they were involved in the planning of the offence and so would be open to charges of conspiracy, incitement, or aiding and abetting, or were involved in a joint enterprise to commit the offence. I reiterate—noble Lords will already be aware of this—that a person does not have to make physical contact with the victim to commit what is an extremely serious criminal offence. Aiding, abetting or inciting an offence can be subject to the same penalties as committing the offence, and therefore an individual who does this can be dealt with as robustly as those directly involved. Moreover, happy slapping that is an element of a violent offence should be taken into account as an aggravating factor of that offence under current sentencing guidelines. This type of offence would usually involve three factors: planning, offenders operating in groups or gangs, and additional degradation of the victim. These factors would apply to all those committing the offence, not only to the person doing the filming.

Subsection (2) of the amendment relates to the newer offence of downloading on to the internet an audio or visual recording of a criminal offence. Under the current law, anyone who publishes material on the internet that is held to be obscene under the Obscene Publications Act 1959 is committing a criminal offence. It is also an offence under Section 127 of the Communications Act 2003 to transmit, by means of a public electronic communications network such as a mobile phone, images that are,

Material that is not caught by this legislation is widely available for the general public to see elsewhere, for example in the media and the entertainment industry, and is not subject to criminal law. In this sense, the issue under consideration goes far beyond images on the internet, and it would not be appropriate to legislate only against images on this medium.

I am afraid that the amendment also has some drafting difficulties that could render it unworkable. First, the amendment would make it an offence to record any criminal offence. By not restricting this to violent offences, we could be criminalising the recording of anything from a minor traffic infringement to much more serious crimes. The amendment would also require there to be intention before an offence is committed. However, it is not

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clear whether the intention relates solely to the filming of the act in question or to the filming of a criminal offence. In other words, it is not clear whether the person must know that the act they are filming for gratification is in fact a criminal offence.

Finally, the proposed offence would require the recording to be for the gratification of the individual or another person. Although there are currently 14 references to gratification in legislation, they all relate to sexual gratification. It is not clear what would be caught by the term “gratification”. For example, it is not clear whether publishing such material for legitimate purposes—for example, as CCTV footage as part of the news or a “Crimewatch”-type programme, many of which can be viewed on the internet—would be for personal gratification, and whether or not gratification in this sense would be legitimate.

As noble Lords will be aware, many news and other television programmes or clips can now be viewed over the internet. Even if a defence along these lines were included, there would be significant evidential difficulties in, for example establishing whether the offence being uploaded was real or staged and, if staged, therefore not a criminal offence. It is true that many of us find certain material available on the internet distasteful. However, I should say for the record that the vast majority of the internet industry takes a responsible approach to the content that it hosts, both of its own volition and in co-operation with law enforcement and government agencies. Where the industry is advised that the content that it hosts contravenes legislation or its broader acceptable-use policy—many companies’ policies provide for them to remove material that will cause distress to an individual—they will readily remove it. Any individual who is concerned about the contents of a particular website can approach the relevant internet service provider to ask it to remove either the site or some of the material hosted on it.

The Government accept the noble Baroness’s concerns and, as I said at the outset, are sympathetic to the aim of the amendment. However, we are not convinced that there is a gap in current legislation. We do, of course, want to ensure that the law is enforced fully, consistently and robustly, and we think that by working with ACPO, the CPS and the Sentencing Guidelines Council we can ensure that the police, prosecutors and sentencers have the proper guidance to enable them to deal appropriately with incidents of happy slapping.

We also want to send out a clear message to children that incidents of happy slapping are abhorrent and will not be tolerated. We are therefore working with the Department for Education and Skills on how we can best educate young people, who are often the group exposed to incidents of happy slapping, about the seriousness of committing a criminal offence of assault and, indeed, about the seriousness of the penalties for crimes of this nature. I realise that this may be something of a disappointing response to the noble Baroness, although I have indicated our general support for what she is attempting to achieve; that is, to ensure that people

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are fully aware of the abhorrent nature of happy slapping and that the full force of the law can be used against them for perpetrating this appalling crime.

The noble Baroness made some salient points about my right honourable friend Jack Straw and his comments in another place. I have now looked at what he said. I think that the Leader of another place was making an observation in a way designed to be helpful, to assist his honourable friend Iain Wright, the Member for Hartlepool, in finding a venue to hold a lengthier discussion on the issue of YouTube. I think he said that he hoped that the issue would be raised with an appropriate amendment. In a sense we have done that and the noble Baroness has been helpful in that regard. My right honourable friend simply encouraged his honourable friend to use the opportunity of perhaps having an amendment to the Bill and perhaps returning it to another place for there to be a discussion. I do not think that he made a commitment or asked Iain Wright to do anything. It was just one of those moments when Jack Straw was trying to be helpful, as he is on many occasions.

I am grateful for the opportunity provided by the noble Baroness to discuss this issue further. I have tried to go through in detail the way we see the issue and how we feel it is best dealt with. In those terms, I hope that she has found my response useful.

Baroness Anelay of St Johns: My Lords, the noble Lord has now made much clearer the Government’s objections than he was able to in Committee, and of course I understand that my drafting is not perfect. The noble Lords, Lord Monson and Lord Thomas of Gresford, were worried about how wide the offence would go and who it would capture. I was not in a position to explore these issues further on Report—I gave an explanation at the time, and therefore it was not possible to knock off the rough edges of the amendment. Given that, I offer it again to the House today, but in a slightly different form.

The Minister spoke of the drafting rather than the objective. He shares my aims and concerns, but has said that there is no gap in the current legislation. This is a matter that is abhorrent in nature. Happy slapping is not something that should be tolerated and it is clear that Jack Straw agrees. The Minister has said that his right honourable friend was trying to be helpful in another place. Well, he was helpful to me. It is one of those occasions when I shall remember his words very clearly indeed. The Minister is inviting me to believe that the Leader of the House of Commons does not understand the rules of amendments in lieu that proceed when we have exchanges between both Houses. The right honourable Jack Straw has been in Parliament for more years than me and has vastly more experience than I have now or ever could have, so I find that difficult to swallow. It is clear that Jack Straw believed that this Bill would be in another place and could be amended in such a way that Mr Wright would be able to table his amendment. If he did not believe that, he was misleading another place, and I do not believe that Jack Straw was doing that. I shall give him the opportunity to satisfy his honourable friends in another place. I wish to test the opinion of the House.

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7.13 pm

On Question, Whether the said amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 96; Not-Contents, 116.

Division No. 2


Addington, L.
Allenby of Megiddo, V.
Anelay of St Johns, B.
Attlee, E.
Barker, B.
Bonham-Carter of Yarnbury, B.
Bottomley of Nettlestone, B.
Bridgeman, V. [Teller]
Brougham and Vaux, L.
Buscombe, B.
Chidgey, L.
Cotter, L.
Craigavon, V.
Crathorne, L.
De Mauley, L.
Dean of Harptree, L.
Denham, L.
Dixon-Smith, L.
Dundee, E.
Ferrers, E.
Fookes, B.
Garden, L.
Gardner of Parkes, B.
Geddes, L.
Goodhart, L.
Goschen, V.
Greaves, L.
Greengross, B.
Hamwee, B.
Hanham, B.
Harris of Richmond, B.
Hayhoe, L.
Hooper, B.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Hurd of Westwell, L.
Inglewood, L.
Jones of Cheltenham, L.
Kimball, L.
Kingsland, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Lee of Trafford, L.
Linklater of Butterstone, B.
Liverpool, E.
Livsey of Talgarth, L.
Luke, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Maginnis of Drumglass, L.
Mar, C.
Mar and Kellie, E.
Masham of Ilton, B.
Montrose, D.
Morris of Bolton, B.
Moynihan, L.
Neuberger, B.
Newby, L.
Northover, B.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
Palmer, L.
Perry of Southwark, B.
Rawlings, B.
Razzall, L.
Redesdale, L.
Rennard, L.
Roberts of Llandudno, L.
Rogan, L.
Roper, L.
Russell-Johnston, L.
Scott of Needham Market, B.
Seccombe, B. [Teller]
Shaw of Northstead, L.
Shephard of Northwold, B.
Shrewsbury, E.
Shutt of Greetland, L.
Smith of Clifton, L.
Steel of Aikwood, L.
Stewartby, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Tope, L.
Tordoff, L.
Trimble, L.
Tyler, L.
Ullswater, V.
Waddington, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.


Acton, L.
Adams of Craigielea, B.
Adonis, L.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Bilston, L.
Blackstone, B.
Blood, B.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Chandos, V.
Clark of Windermere, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Crawley, B.
Dahrendorf, L.

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Davies of Oldham, L. [Teller]
Desai, L.
Drayson, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. [Lord Chancellor.]
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Ford, B.
Foster of Bishop Auckland, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Goldsmith, L.
Gordon of Strathblane, L.
Gould of Brookwood, L.
Gould of Potternewton, B.
Grabiner, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howarth of Newport, L.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
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