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12 Apr 2019

The new law seeking to address “upskirting”

On 12 April 2019, the Voyeurism (Offences) Act 2019 (‘the 2019 Act’) came into force criminalising the so-called practice of ‘upskirting’. The Act amends the Sexual Offences Act 2003 (‘the 2003 Act’) by the insertion of additional voyeurism offences at section 67A.

The need for a new offence was campaigned for by writer Gina Martin who was a victim herself of ’upskirting’ at a festival in July 2017.  According to press reports, Ms Martin was shocked when the police told her that her complaint could be taken no further because the image taken was not ‘graphic enough’ to warrant an investigation. The necessity for a new offence was considered in an earlier blog in August 2017[1].  It remains unclear as to why Ms Martin’s complaint was not investigated under the existing legislation.  Whilst it was not likely to have been caught under the existing voyeurism laws because it was unlikely to have been deemed to be private in nature, those who have been caught ‘up-skirting’ in public places had previously been prosecuted for the offence of outraging public decency. The only limitation to this offence is that the act must take place in the actual presence of two or more persons who are capable of seeing it (it is irrelevant as to whether these people actually saw the act or were outraged by it). Clearly whilst this may not be applicable in all ‘upskirting’ cases, it  remains unclear as to why this offence could not have been prosecuted in respect of Ms Martin’s complaint.

Whatever the reason for the police inaction, Ms Martin’s campaign calling for a specific offence of upskirting was very successful with celebrities publicly endorsing it and a Facebook campaign resulting in nearly 100,000 signatures. In March 2018, Wera Hobhouse MP, introduced a Private Members Bill to make ‘upskirting’ a specific criminal offence. In April 2018, other MPs expressed their outrage that the Lord Chancellor had not drafted this into law quick enough with Gill Furniss MP asking why the Secretary was “refusing to act” given the public’s call for it to be made a specific sexual offence. David Gauke MP confirmed that “successful prosecutions have been brought in England under the existing law” but, perhaps bowing down to public pressure, accepted “I think there is a case for making sure that we have legislation that deals with this offence specifically”. The private members bill was ultimately fully committed to by the Ministry of Justice.  It was read to the House on 15 June 2018, but blocked by Christopher Chope MP, purely, it seems due to his beliefs on parliamentary procedure.  On 18 June 2018, the Parliamentary Under-Secretary of State for Justice (Lucy Frazer MP) stressed that they were seeking to criminalise upskirting as it is “an invasion of privacy, and a humiliating and distressing experience”.  Lucy Frazer MP again acknowledged that there were “existing offences that can be used to punish upskirting in some circumstances” but said that there “is a gap in the law” for some activities (giving the slightly odd reference of photographs being taken in schools which may amount to a separate offence all together).  In any event, a further Bill was drafted and proceeded through the normal channels, obtaining Royal Assent on 12 February 2019.

The amendments to the Sexual Offences Act 2003 introduce two additional offences of voyeurism; where person A (1) operates equipment or (2) records an image, “beneath the clothing of another person” B, in order for A (or another person C) to (1) observe or (2) to view the recorded image of B’s “genitals or buttocks (whether exposed or covered with underwear)” or the “underwear covering B’s genitals or buttocks” in circumstances where the genitals, buttocks or underwear would not otherwise be visible, without B’s consent or reasonable belief of B’s consent.  The Act also requires person A to have carried out (1) the observation or (2) the recording, in order to obtain sexual gratification (whether for A or C) or to humiliate, alarm or cause distress to person B. This largely mirrors the voyeurism offences as set out in the Sexual Offences (Scotland) Act 2009.

The offence appropriately requires a lack of consent or reasonable belief of consent requiring proof of a specific state of mind of the Defendant.  This may present an interesting consideration as to the circumstances and locations as to where the alleged offence takes place. For example, in 2018, singer Lily Allen was said to be the target of online ‘trolls’ when they shared a very explicit photo of her on stage without underwear[2].  The taking of such a photograph could arguably fall foul of this new offence being a recorded image taken of her genitalia beneath her clothing for the purpose of causing humiliation, distress or alarm.  However, it could be argued that, by Ms Allen going on stage without underwear, B reasonably believed she consented to such a photograph being taken.

The biggest difference with these offences to the previous voyeurism offence in the 2003 Act is the purpose to which person B can be observing or recording the image.  Voyeurism has hitherto always criminalised voyeuristic behaviour which is for the purpose of sexual gratification.  Indeed, it was held in R v B[3] that “the link between deliberate observation and the purpose of sexual gratification of the observer was central to the statutory offence of voyeurism”, highlighting that it was the purpose of “sexual gratification” which turned the deliberate observation of another doing an intimate act in private into an “injurious” act.  These additional offences go further and allow an individual to be guilty of observing or recording an image where the purpose is only to humiliate, alarm or distress the complainant.  It substantially widens the type of behaviour that the voyeurism offence was initially designed to capture, that being strategic ‘peeping Tom’ cases. Previously the fact that this behaviour often caused severe distress, embarrassment or humiliation was taken into regard in sentencing as highlighted by The Sentencing Council[4].  However, these new offences make it a criminal offence to observe or record an image purely for this purpose.

On her website celebrating the success of the ‘Upskirting’ bill, Wera Hobhouse MP, noted that celebrities often fell “victim to upskirting by the paparazzi”[5].  It is interesting that this direct example is given by Ms Hobhouse MP.  Clearly, these new offences could criminalise such behaviour (if being used to ‘shame’ in magazines for example), however, when drafting the 2003 Act, Parliament were specifically keen not to criminalise paparazzi taking shots of stars getting out of vehicles. In the Standing Committee on the Bill for this Act in the House of Commons, the Minister said: “we want to restrict criminality for that offence to those who go to considerable lengths to spy on others who are engaged in private acts, rather than people who… just stumble across people while they are out and about”[6]. Perhaps with the explosion in the use of technology with almost every phone now sold having the capability to record high resolution pictures and videos, such ‘considerable lengths’ are no longer considered necessary.

This new offence will be no trivial matter to those facing proceedings, carrying a potential sentence of up to two years imprisonment. Furthermore, anyone convicted or cautioned for voyeurism offences will, subject to the consideration of representations where permitted, be barred from working in regulated activity with children and/or vulnerable adults.  One big complaint by Ms Martin was that ‘upskirters’ were not made subject to the notification requirements of the Act (as it was not applicable to the offence of outraging public decency).  For these new offences, for those over 18, the offence can be subject to the notification requirements of the Act. However, this is sensibly restricted to those offences where it has been shown the conduct of the defendant was sexual in nature. Perhaps this is recognition that Parliament are aware that this offence is widening the type of behaviour initially envisaged when drafting the original voyeurism offence.

On the new law receiving Royal Assent, MP Hobhouse said that the “closing of this loophole in the law is a victory for the rights of women up and down the country.  It will give security and peace of mind to all those who have been affected and offer clear protection for all moving forwards”.  Despite repeated references to the necessity for a new offence to close the lacuna in the law, Lucy Frazer MP admitted that the CPS was “already prosecuting these offences under the legislation that exists”.  Perhaps therefore these new offences have been drafted to appease the public following the fierce campaign led by Ms Martin.  The result is a simplification and widening of the scope of voyeurism to ensure that “there is not a gap in the law so that some cases do not fall through a loophole”.  The real issue perhaps as to the success or otherwise of the new legislation, as highlighted by Catherine West MP, is the lack of resources by the police to investigate new offences and no amount of legislation will resolve that issue.

[1] https://www.corkerbinning.com/should-there-be-a-new-sexual-offence-of-public-place-voyeurism/#page=1

[2] https://uk.news.yahoo.com/lily-allen-best-response-troll-tried-shame-upskirt-photo-102254976.html

[3] [2012] EWCA Crim 770, [2013] W.L.R. 499

[4] https://www.sentencingcouncil.org.uk/wp-content/uploads/Final_Sexual_Offences_Definitive_Guideline_content_web1.pdf

[5] https://www.werahobhouse.co.uk/upskirting

[6] Hansard, HC Standing Committee B, 8th Sitting, September 18, 2003, col 306: https://publications.parliament.uk/pa/cm200203/cmstand/b/st030918/pm/30918s08.htm


This article was originally published in CrimeLine and can be accessed here.

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