The new law seeking to address “upskirting”
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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
[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