Specialist lawyers defending allegations of voyeurism and upskirting
What sets Olliers apart from other law firms is the proactive approach we adopt during the pre-charge stage of a case. This approach is absolutely crucial when a client faces an allegation of voyeurism.
During the investigation stage of a case we will always look at early pre-charge engagement with the police. From the outset we will focus upon the Charging Standard and the need for a ‘realistic prospect of a conviction’ in order a prosecution can commence. Our objective will always be to make effective representations against charge.
If we are instructed post charge the same methodical ‘no stone unturned’ approach applies. Our specialists have experience that few, if any defence teams could match and an extremely impressive acquittal rate. We will always ensure that the right barrister is matched with the right client – every time.
What is Voyeurism?
Under Section 67 of the Sexual Offences Act 2003, voyeurism includes:
- Observing someone in a private act
- Recording someone in a private act
- Installing a camera or similar piece of equipment with the intention of recording someone in a private act
A private act is defined as what a reasonable person would only do in privacy, for example, being naked or engaging in sexual activities.
Examples could include watching somebody through a window, filming people having sex or installing cameras in a toilet or bathroom.
For a voyeurism offence to be proven the intention must be of sexual gratification and there must be no consent given.
Other Voyeurism Offences
Prior of the creation of the new offences contained in the Voyeurism (Offences) Act 2019 no specific offence of upskirting existed. Depending upon the particular circumstances, certain behaviour could be prosecuted under existing law such as the common law offence of Outraging Public Decency, or the existing voyeurism offences under section 67 of the Sexual Offences Act 2003.
However, this legislation didn’t cover all instances and as such some acts of upskirting could avoid prosecution. Accordingly, the Voyeurism (Offences) Act 2019 was introduced to strengthen the existing legislation.
What is Upskirting?
“Upskirting” refers to the action of placing equipment such as a camera or mobile phone beneath a person’s clothing to take a voyeuristic photograph without their permission. It is not only confined to victims wearing skirts or dresses and equally applies when men or women are wearing other clothing such as kilts, shorts or trousers. It is often performed in crowded public places, for example on public transport or at music festivals, which can make it difficult to notice offenders.
The Voyeurism (Offences) Act 2019 was implemented on 12th April 2019. The new offences are retrospective and carry a maximum 2-year prison sentence.
2019 Voyeurism (Offences) Act
The 2019 Voyeurism (Offences) Act creates two new offences:
The offences can be carried out using digital cameras, phones, video cameras or any other equipment. There is no limitation within the legislation as to what ‘equipment’ is. In a modern where technology is developing rapidly, this should ensure that the legislation will not be limited by a narrow list. Automated equipment that has been installed without a victim’s knowledge is also included.
The new offences criminalise offenders who operate equipment or record an image under another person’s clothing (without that person’s consent or a reasonable belief in their consent) with the intention of viewing, or enabling another person to view, their genitals or buttocks (with or without underwear), in circumstances where the genitals, buttocks or underwear would not otherwise be visible, and where the purpose is to obtain sexual gratification or to cause humiliation, distress or alarm.
Section 67A (1) Voyeurism (Offences) Act
This section criminalises offenders who operate equipment (irrespective as to whether an image is recorded) under another person’s clothing (without that person’s consent or a reasonable belief in their consent) with the intention of viewing, or enabling another person to view, their genitals or buttocks (with or without underwear), in circumstances where the genitals, buttocks or underwear would not otherwise be visible, where the purpose is to obtain sexual gratification or to cause humiliation, distress or alarm.
A person (A) commits an offence if –
(a) A operates equipment beneath the clothing of another person (B),
(b) A does so with the intention of enabling A or another person (C), for a purpose mentioned in subsection (3), 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 genitals, buttocks or underwear would not otherwise be visible, and
(c) A does so –
- (i) without B’s consent, and
- (ii) without reasonably believing that B consents.
This section is often used where the behaviour has been witnessed but where it has not been possible to recover the device used or the actual images.
Section 67A (2) Voyeurism
This section criminalises offenders who record an image beneath the clothing of another person’s clothing (without that person’s consent or a reasonable belief in their consent) with the intention of viewing, or enabling another person to view, their genitals or buttocks (with or without underwear), in circumstances where the genitals, buttocks or underwear would not otherwise be visible.
Where images have been recovered it is preferable to use this offence as it avoids any dispute about what offenders may have been intending to observe when they carried out this behaviour.
A person (A) commits an offence if –
(a) A records an image beneath the clothing of another person (B),
(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, buttocks or underwear would not otherwise be visible,
(c) A does so with the intention that A or another person (C) will look at the image for a purpose mentioned in subsection (3), and
(d) A does so –
- (i) without B’s consent, and
- (ii) without reasonably believing that B consents.
For both offences it is necessary to prove offenders have the intention (either for themselves or others) to view the image for the purpose of obtaining sexual gratification (either for themselves or another person) or for the purpose of humiliating, alarming or distressing the victim.
Attempted voyeurism
The Criminal Attempts Act 1981 would apply to the new offences in appropriate circumstances. This means that, where a person intends to carry out an upskirting offence and does an act which is more than merely preparatory to committing one of the offences they can still be charged with attempt to commit that offence.
Public Interest
When determining whether to bring a prosecution, all the circumstances surrounding the offence must be considered. Specifically, for this offence, particularly in relation to youths, consideration needs to be given as to whether this is a pattern of behaviour towards this or other victims, is sexually motivated, or whether it is an isolated incident or practical ‘joke’.
The following factors should also be considered:
- whether the offence is likely to be repeated;
- the extent to which the offending was pre-meditated;
- whether the victim was targeted; and
- whether the offence was motivated by sexual gratification and if notification requirements are necessary to safeguard the public more widely.
Sentencing voyeurism offences
The offences are subject to a two–year maximum prison sentence.
How can Olliers help?
At the pre-charge investigation stage, we can communicate with the police on your behalf. We can prepare representations in relation to either mitigation if the offence is admitted, or setting out your case if the offence is denied. Read more about our pre-charge investigation work here.
If you are charged with this offence, we can represent you at court, with one of our specialist solicitors presenting your case. We will advise you on the strength of the evidence and the sentencing guidelines in the context of your case. If you are entering a guilty plea, we will do our very best to ensure you receive the lowest sentence possible. If you are entering a not guilty plea, we will put forward your case to the court, ensuring you have the best chance possible of the desired outcome.
Need a solicitor for a voyeurism allegation?
Contact Olliers to arrange advice and representation in relation to an allegation of voyeurism by completing the form below, telephoning 0161 8341515 or by emailing info@olliers.com.
