Upskirting – the new offence becomes law.

The Voyeurism (Offences) Act 2019 amends the Sexual Offences Act 2003 to insert a “new” offence under s.67A which is designed to combat “upskirting”. Mark Pritchard asserts that the new upskirting criminal offence is harder to prove than the was the case under the pre-existing law.

Mark Pritchard

Upskirting has been successfully prosecuted using the old common law offence of Outraging Public Decency but this new offence offers a great deal of flexibility to a prosecutor.

However, in drafting this legislation, several new defences to upskirting have been created which would not have existed when dealing with a case of Outraging Public Decency.

The new Act actually creates two subtly different offences. The first involves the operation of equipment beneath the clothing of another and the second, recording an image beneath the clothing of another. Both of these offences are triable either-way.

S.67A(1) Sexual Offences Act 2003 operating equipment beneath the clothing of another person

Actus reus

A operates equipment beneath the clothing of another person, B.

Mens rea

  • A does so with the intention of enabling himself or another person to view genitals or buttocks (whether exposed or covered with underwear), or the underwear covering the genitals or buttocks, in circumstances where the genitals, buttocks or underwear would not otherwise be visible, and does so without consent and without reasonably believing that complainant consents.
  • The defendant does so for the purpose of obtaining sexual gratification and/or humiliating, alarming or distressing the complainant.

S.67A(2) Sexual Offences Act 2003 recording an image beneath the clothing of another person

Actus reus

A records an image beneath the clothing of another person where:

  • the image is of the genitals or buttocks (whether exposed or covered with underwear), or the underwear covering the genitals or buttocks,
  • in circumstances where the genitals, buttocks or underwear would not otherwise be visible.

Mens rea

  • A does so with the intention that he or another person will look at the image for a purpose of obtaining sexual gratification and/or humiliating, alarming or distressing the complainant,
  • and does so without consent and without reasonably believing that complainant consents.

What are the possible defences?

Operating equipment beneath the clothing of another person

Rather unhelpfully, the Act does not give a definition of “operating” or “equipment”. It is unclear as to whether a person who places a mirror or reflective surface on the floor can be said to be operating that mirror for the purposes of this offence.  This element will have to be assessed on a case by case basis until further guidance is given.

upskirting criminal offence

There will be a defence for any defendant who claims he did not operate the equipment with the intention to view genitals, buttocks or underwear of another.

It would be a defence that the defendant did not do so for the purpose of obtaining sexual gratification and/or humiliating, alarming or distressing the complainant. It will be for the Crown to disprove any assertion that the viewing of the complainant’s genitals, buttocks or underwear was not merely accidental or for some other purpose. This is similar to the intent involved in extreme pornography cases.

Consent, or a reasonable belief in consent will also present a full defence to this offence.

Recording an image beneath the clothing of another person

The new offence appears to set quite a high bar for the Crown.

Due to the covert nature of this offence and the images taken, it will often be the case that multiple images will be found on a device after a complaint is made. Due to the difficulty in identifying other potential victims it will be almost impossible for the Crown to prove that consent was not given, if put to proof.

For a scenario where the Crown is able to bring evidence of a lack of consent, it will still be possible for defendants to advance a defence in relation to intent (see above). It will be for the Crown to disprove any assertion that the recording was not merely accidental, or that any images of the complainant’s genitals, buttocks or underwear were not incidental. Equally, the purpose of the recording will be for the Crown to prove, where the defendant raises an alternative purpose than those listed in the Act.

Common defence

It will be a defence to both offences if genitals, buttocks or underwear would have been visible without the use of equipment or a recording device.

Sentencing, Purpose and Ancillary Orders

Both offences are triable either way and subject to a two–year maximum prison sentence.

upskirting criminal offence

When considering ancillary orders, it is important to consider that where committed for the purposes of obtaining sexual gratification and the relevant condition is satisfied, the defendant will automatically be made the subject of notification requirements and so become a registered sex offender.

However, if the defendant committed the offence for the purpose of humiliating, alarming or distressing the complainant then he will not become subject to notification per s.4 Voyeurism (Offences) Act 2019 which amends paragraph 34A of Schedule 3 of Sexual Offences Act 2003. This may well be a key consideration for any practitioners when advancing a basis of plea.

Conclusions

The Ministry of Justice circular discussing the new legislation states that, in passing this legislation, “The Government wanted to ensure that victims of upskirting were left in no doubt that their complaints would be taken seriously, and that perpetrators would be properly punished.”

The likely reality is that the old common law offence of Outraging Public Decency offered a greater degree of flexibility and a higher likelihood of conviction.

In codifying this offence the government have created multiple new defences to upskirting and set an unusually high bar for the Crown for an either-way offence.


Mark Pritchard is able to give advice on any cases where a lay client is being prosecuted for these new offences.

Central Chambers has a criminal team with experience in defending a variety of sexual offences.

If you would like to instruct Mark Pritchard or another member of the criminal team, please do not hesitate in contacting the criminal clerks by clicking here or by calling on 0161 236 1133

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