After careful consideration of the concerns raised by complainants and certain MPs, the government rightly decided a change was necessary in order to strengthen this particular area of sexual offences within criminal law.
On 12 April 2019, the Voyeurism (Offences) Act 2019 came into force, which added 2 new offences to the Sexual Offences Act 2003 to cover the intrusive behaviour of ‘upskirting’. Such an action has been a criminal offence in Scotland since 2010, due to the wider definition given to voyeurism. The practice of upskirting typically involves taking an image of under a person’s clothing, without their knowledge, with the intention of viewing that person’s genitals or buttocks.
However, until now, reported incidents of upskirting were unlikely to be effectively pursued by the authorities in England and Wales, unless the conduct in question was deemed consistent with other offences, such as outraging public decency, voyeurism, taking an indecent photograph of a child or sections 4A / 5 of the Public Order Act 1986. The new provisions will not be retrospective and complainants will be entitled to automatic anonymity, as per the lifetime protection afforded in cases involving sexual offences.
The offence of voyeurism can be found at section 67 of the Sexual Offences Act 2003, which has been amended to insert section 67A, namely ‘Voyeurism: additional offences’.
Subsection (1) sets out that a person (A) commits an offence if A operates equipment beneath the clothing of another person (B), with the intention of enabling A or another person (C) to observe (i) B’s genitals or buttocks (whether exposed or covered with underwear) or (ii) the underwear covering B’s genitals or buttocks, in circumstances where the aforementioned would not otherwise be visible, and A does so without B’s consent and without reasonably believing that B consents.
Subsection (2) sets out that a person (A) commit an office if A records an image beneath the clothing of another person (B), the image is of (i) B’s genitals or buttocks (whether exposed or covered with underwear) or (ii) the underwear covering B’s genitals or buttocks, in circumstances where the genitals, buttock or underwear would not otherwise be visible, A does so with the intention that A or another person (C) will look at the image for the purpose of obtaining sexual gratification (whether for A or C) or humiliating, alarming or distressing B, and A does so without B’s consent and without reasonably believing that B consents.
The new legislation permits the inclusion of instances where suspects assert that images were simply taken as a joke or when intrusive images have been taken by photographers, as subsection (1) does not include reference to a ‘purpose’.
The new offences are either way, which means that can be dealt with in the magistrates’ court or the crown court. The maximum sentence in the crown court is 2 years’ imprisonment.
An offence under section 67A is subject to notification requirements (registered sex offender) in the event of conviction, if the offence was committed for the purpose of sexual gratification and the offender is sentenced to at least 12 months imprisonment (if the offender is under 18 years old) or in any other case where the victim was under 18 years old or the offender is sentenced to a term of imprisonment, detained in hospital or made subject to a community order of at least 12 months. Therefore, the more serious cases of upskirting will activate the requirements.
Where a person intends to carry out an offence of upskirting and does an act which is more than merely preparatory in committing one of the 2 offences, such as attempting to take a photo up a person’s skirt but is unable to retain an image because their mobile phone has exited the camera function, they can still be pursued under the Criminal Attempts Act 1981.
The Serious and General Crime Department at BCL Solicitors LLP provides specialist and discreet advice across the whole spectrum of criminal matters, with particular expertise in offences of a sexual nature.
Paul Morris is a partner at BCL who has extensive experience in complex and serious crime, defending a range of general criminal matters including homicide, sexual offences, blackmail, drugs offences and assault. He has particular experience in crisis and reputation management, advising professionals from the finance, music, medical, sports, political and teaching professions in relation to serious and complex investigations and prosecutions.
Daniel Jackson is a solicitor at BCL specialising in serious and general criminal litigation. He has considerable experience of acting for individuals being investigated and prosecuted for sexual, dishonesty, violence, drugs and road traffic offences. He defends professional clients facing high-profile and complex criminal matters.