DERMOT MURNAGHAN: Now then, revenge pornography, that’s when people publish sexually explicit pictures of former partners without their consent, is to be made a criminal offence punishable by up to two years in prison.  The move comes as figures reveal that children as young eleven have been victims and in a moment I’ll speak to the Justice Minister, Simon Hughes.  Simon Hughes is the Minister of State for Justice and Civil Liberties, the Liberal Democrat MP of course and he joins me now, a very good morning to you, Mr Hughes.  Everyone accepts how horrible this can be and not very nice but don’t we have an awful lot of existing laws that might be able to deal with it?

SIMON HUGHES: Across the coalition both parties have been concerned that though there is a lot of legislation there is nothing that actually specifically deals with this sort of issue.  The last woman to comment in your piece I thought put it very clearly, this is a new sort of harassment that hasn’t been dealt with before.  This is very common now amongst young people in particular and therefore in order to have an offence that is very clear, very explicit, deals with this specific activity, we thought after lots of consideration it was better to have a new offence than other offences otherwise you would find arguments about whether they applied, whether they were intended to cover this so there is a new offence and both Conservative and Liberal Democrats have been very clear that that’s the best way to combat this.  

DM: So you are going to criminalise a lot of children then, you say there a lot of young people doing it, we mentioned eleven and twelve year olds and things like that.  Presumably it is eleven and twelve year olds who are sticking the pictures online as well, you’re going to start criminalising them.

SIMON HUGHES: No, the real abuse is older people who have had a relationship, the relationship breaks down, they have had intimate pictures taken during the relationship and then they decide to harass their former partners by doing this.  You can never prosecute young people without going through additional thresholds of thinking whether the Director of Public Prosecutions thinks it is appropriate.  But it is intended to send a message as well as deal with people who clearly want to harass their ex-partner that you cannot take what was a private arrangement between two of you and then put it out into the public domain and we believe that needs to be stopped in law.  It is a different issue from child pornography and all those other things where there are severe penalties up to 14 years imprisonment.  This is very clear that this is to deal with increasingly common activity where the complaint is that nothing can be done about it and victims – and it is a victim driven decision – victims are feeling they are being harassed and nobody is taking action.  

DM: The thought occurs, would Brooks Newmark have a defence under this new law?  There is a picture of him in one of the Sunday papers today where he sent a naked picture of himself to someone and it has somehow ended up in one of the Sunday papers, I mean that was between two adults yet there he is, he’s resigned, he’s stepping down from parliament but would he be protected under this law?

SIMON HUGHES: You wouldn’t expect me to comment on any individual case let alone a parliamentary colleague.  He’s made a statement to the press this morning, this offence was thought about long before the Brooks Newmark case came into the press’s attention.  We have been working on this for months, we’ve been trying to get the law …

DM: But would the press have protection?  I mean presumably he meant it to be a private picture of himself naked, several of them that he sent we understand, would the press be exempted from it.  

SIMON HUGHES: There are two issues here, you are trespassing into a second issue which we are also going to legislate about.  What we are seeking to deal with is something that has become a common pattern of people doing something which is consensual between people who are perfectly entitled to behave in this way, we are not seeking to restrict the ability of people to take photographs of themselves or their partners but who then wish to abuse that relationship once its ended by posting something which does not have the consent, so it is breaching the consent.  Now we are also wanting to legislate on something else which you will have read about in which there has been increased trawling by the police into the activity of journalists investigating these sorts of issues where we think that is entirely inappropriate for journalists acting in the public interest, doing their job. We think it should not be for the police to track back over all their phone records and …

DM: Okay, well we’ve moved over into this but how do you get that oversight because at the moment the police can more or less do it willy-nilly?

SIMON HUGHES: Very simple, you require judges to authorise it so the presumption would be that somebody acting in the public interest, a journalist because freedom of …

DM: But would you be told, even if the judge okays it would you be told because at the moment the journalists are saying we didn’t even know anything about it, that they were given these powers.  Even if they used a judge would the journalist be told in advance?

SIMON HUGHES: Well you’d make an application to the court, the judge would deal with it and the journalist I assume would be told.

DM: And they can then fight it.

SIMON HUGHES: The principle has to be that a) there is freedom of expression, b) journalists have a job to do and there is a public interest defence which should be available to all journalists so yes, you will absolutely be able to argue that case.  

DM: Okay, a question back on to revenge porn, two years?  I mean as a Liberal Democrat isn’t there a better way of punishing this type of crime, two years in jail?  

SIMON HUGHES: That’s a maximum offence, you could have lesser penal offences, you could have suspended offences, you could have …

DM: It’s not a violent crime is it?  

SIMON HUGHES: No, no, and in almost all cases there might not be a prison sentence and what we have again have absolutely … one of my jobs in government is to make sure we don’t create either too many offences or excessive offences or offences with the wrong punishment so we have been very careful to make sure this is compatible with other offences, and it is, two years is the sort of maximum imprisonment permitted by the courts.  That doesn’t mean to say there will be a two year offence.  You know perfectly well that maximums are to set a limit and I would expect in the first case, it depends on the level of the distress, it depends on the number of places where this was posted, it depends on the maliciousness of the activity so the courts will make that judgment, the usual process will be followed, it will have to be considered, the police will have to take action initially following a complaint, the Crown Prosecution Service will have to decide whether it is appropriate and on the balance of probabilities would result in a conviction and then the court will decide on the appropriate offence.

DM: Can I just ask you about the abject performance of the Liberal Democrats recently in the polls?  It’s hard to believe this time last week we were talking about your conference, a week on it’s as if the waters have closed over, it never happened.  Do you feel usurped by UKIP?

SIMON HUGHES: No, no and I’ll tell you why very simply.  Our conference was a good conference, more successful than …

DM: No one can remember anything about it.  

SIMON HUGHES: Well I think most people can.  There have been three places where in this parliament the three major parties had to defend themselves against UKIP, the challenge in Eastleigh against us from UKIP we saw them off, we won, we held that seat.  The Labour party have had two embarrassments, they couldn’t hold the Bradford seat against Respect, a safe, safe, safe Labour seat and they nearly lost their Heywood and Middleton seat against UKIP and the Tories have lost to UKIP so look back over the record of this parliament, who are the people who have taken on UKIP and resisted and defended their territory?  The Liberal Democrats.   

DM: But are you going to go into that general election saying – well you are, aren’t you, saying we are the party of in, we don’t need a referendum, we know we’ve got to stay in the European Union and UKIP and those that would pander to you, you are wrong about immigration?

SIMON HUGHES: We say we are the party that believe you do better in the European Union than outside, we’ve always argued that case.

DM: And this is come hell and high water?

SIMON HUGHES: Well it’s millions of jobs, it’s huge amounts of trade, it’s beneficial for Britain’s growth and prosperity, so yes we are a party of in, we say we do believe in a referendum but not at an artificially contrived time but when there is any proposal to change the relationship between Brussels and here and that would be an in/out referendum and on immigration I remember arguing in the last parliament that we should not have no transitional controls which Labour took away and in this parliament we have had a new entrant to the European Union, Croatia, we have insisted on transitional controls so there are ways you can deal with immigration, you can minimise the difficulty but if we think suddenly, if people think the Liberal Democrats are suddenly going to say immigration into Britain over the years has been a bad thing – of course there have been challenges but we would not have our NHS running without immigration and many other public services have benefited as well as the country as a whole.

DM: Mr Hughes, thank you very much indeed, Simon Hughes there.