On 3 August 2017, Rector Martin Thrower was sentenced to four months in prison (suspended for 24 months) for filming a teenager who was using a public toilet in a shopping centre. He had been convicted of voyeurism, contrary to Section 67 of the Sexual Offences Act (the ‘Act’). This clearly stipulates that the offence is only committed when the person being observed or filmed is doing a private act. Section 68 defines this as requiring that person to be in a place which “in the circumstances, would reasonably be expected to provide privacy” and further that “(a) the person’s genitals, buttocks or breasts are exposed or covered only with underwear, (b) the person is using a lavatory, or (c) the person is doing a sexual act that is not of a kind ordinarily done in public”.
Clearly the act carried out by Thrower fits neatly into the definition of the Act. However, the Telegraph also referred to a confession by Thrower during his police interview which suggested that he had been taking “such footage” since 2014 “at places including supermarkets and service stations”. No further details were provided as to whether this footage was also deemed to have been a private act, perhaps again taken in the public toilets for example? Or perhaps there were more inappropriate photos taken in public places. Either way, this case poses the question of whether there should be a broader offence of public place voyeurism or if the offence should remain restricted to locations where one would normally expect to be provided privacy.
Back in 2006, Christopher Swyer was convicted of voyeurism and attempted voyeurism in what was seen as a ‘ground-breaking’ case. He had videoed and observed women urinating in a public place, that being the park and beach at the end of the Great North Run. It was found that despite these being public places it was a sufficiently private act (one foreseen by the Act) that the fact it was carried out in public did not mitigate this standing. The case of R v Bassett (Kevin) further considered the question of whether “the person had a reasonable expectation of privacy from which the kind of observation which ensued” concluding that it is “one for the jury in each case” and noted that “it is the nature of the observation rather than the purpose of the observation which may be relevant to the expectation of privacy”.
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”.
But what about those moments when the person being observed is not doing anything particularly private but still surely maintains a right to modesty and privacy in person. In this day and age, where almost every mobile phone has a camera device installed, there have been many complaints made about individuals taking pictures in public places which were clearly without that persons consent and unwelcomed, such as taking ‘up-skirt’ photos of women on public transport, or in shops. These are not places where one would expect privacy, yet clearly those women would expect, quite rightly, not to have such photographs taken. This type of behaviour would not, however, currently be criminalised by Section 67 of the Act. The act of ‘up-skirting’ cannot surely be said to be something they have simply stumbled upon, which the House of Commons committee were seeking to avoid.
The issue of ‘up-skirting’ has recently again become a topic of interest to the media, after 25-year-old Gina Martin caught a man taking a picture of her crotch at a musical festival in Hyde Park in July this year. Ms Martin informed the press that on reporting this to the police they have taken the case no further as the photo was “not graphic”. Without seeing the photograph in question, it is difficult to comment on whether this assessment was correct. Indeed, s68(1)(a) includes an offence being committed if genitalia are covered only with underwear. It may be that the biggest issue in Ms Martin’s case was that the environment was not deemed to be private at all in nature (there were obviously thousands of individuals present), thus rendering any possibility of a charge of voyeurism nil.
Whatever the reason for the police inaction, Ms Martin’s campaign is justified: there is no specific legislation which covers this behaviour. It does not neatly fit into the category of voyeurism, which the Members limited to organised ‘peeping Tom’ sort of cases. This behaviour is often opportunistic, albeit still offensive and upsetting to those involved. So what happens with these cases?
It is usual in most cases that offences are charged in respect of the behaviour in question. The voyeuristic behaviour of a policeman using the force helicopter to film people having sex in public and private places was recently criminalised by way of a conviction of misconduct in a public office. Those who have been caught ‘up-skirting’ in public places have previously been convicted of outraging public decency. So, is there really a need for further legislation?
The difficulty with the current legislation is the different tests that are required to be satisfied before a jury can be sure that they should convict. For example, the offence of outraging public decency criminalises lewd, obscene or disgusting behaviour committed in a public place, but requires 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). It is therefore entirely possible that a woman could be in a public place on her own and have this act carried out and the Police not be able to pursue the matter further. Furthermore, the offence of outraging public decency does not currently fall under the sex offenders notification requirements, even if they are a persistent offender, whilst a voyeur convicted under section 67 can be made subject to notification if the sentence passed is over a certain threshold, or if the victim is under 18.
The problem with legislating further is how this can be restricted to capture the type of behaviour that people are finding offensive – if simply defined to the narrow definition of up-skirting, i.e. taking photos up skirts, this would not capture inappropriate photographs of cleavage for example, or indeed taking photographs up men’s shorts. Or is it in fact too wide – would this risk flood gates to capture the type of behaviour which the Members of Parliament in 2003 were so keen to avoid. It would potentially criminalise the behaviour of various paparazzi taking ‘accidental’ shots of celebrities showing their underwear? And what if you happened to capture a couple having sex on CCTV – would that warrant criminalisation? Where is the line to be drawn and is it only when it is on camera that it becomes an issue?
The offence of outraging public decency sufficiently covers the majority of cases (including the case of Ms Martin). It does not come without its issues, in particular the need for two witnesses and the lack of acknowledgement of it as a sexual offence subject to notification. The answer may be found in the United States of America, where an offence of invasion of privacy for sexual gratification requires a convicted person to register as a sex offender. This should, like voyeurism, be limited to those offences which are the most serious, warranting a sufficiently serious sentence. But is every ‘up-skirt’ photo taken for sexual gratification? Would this truly satisfy the public’s concern? Or is it best left alone and the police be urged to use the powers already available to them? The answer is far from clear.
By Jemma Sherwood-Roberts, Senior Associate at Corker Binning.
  EWCA Crim 804
 Hansard, HC Standing Committee B, 8th Sitting, September 18, 2003, col 306: https://publications.parliament.uk/pa/cm200203/cmstand/b/st030918/pm/30918s08.htm