In September 2017 we reported on the issue of ‘up-skirting’ – the practice of taking a picture up the skirt or dress of a woman or girl in public, sometimes as part of a programme of harassment by the person taking the picture, often occurring without the victim ever being aware. The photos are then often circulated to others invading the privacy of, distressing and humiliating whomever is in the picture. At the time it was noted that this was an example of where the law had not caught up with the misuse of technology. However, today the government has indicated that it will support a private members bill – the Voyeurism (Offences) Bill 2018 – to make the practice a criminal offence in England and Wales. The Bill will have its second reading in the House of Commons on 15 June 2018 and it is understood to have cross party support.
Legislation already exists outlawing the taking of “upskirt” photographs in Australia, New Zealand and parts of the United States as well as in Scotland but not in Northern Ireland, England or Wales. Whilst it is expected that the Bill will become law very shortly in England and Wales, the political impasse in Northern Ireland will mean it is the only part of the UK where this practice has not been specifically addressed.
At present the offence is generally prosecuted under the common law offence of Outraging Public Decency but that offence does not cover every instance. Unless the picture taken was graphic or lewd the existing indecency or sexual offences laws could not be used. Furthermore, investigation and prosecution of the offence has not been approached consistently across the various police forces of England and Wales with no current requirement for the police to even record incidences reported to them.
The proposed new offences cover either operating equipment or recording an image under another person’s clothing without their consent, or a reasonable belief in their consent, for the purposes of either obtaining sexual gratification or humiliating, distressing or alarming them
In relation to sentencing summary conviction (in the Magistrate’s Court) would carry a sentence of up to one year in prison and/or a fine. If tried on indictment in the Crown Court, the maximum sentence would be two years imprisonment. The sentencing powers would not have retrospective effect. Ministers are also understood to want to include provision for the more serious offenders to be placed on the sex offenders register.
Confirmation of the Government’s support for the Bill has been positively received by those who have been campaigning on behalf of victims and for greater protection for women from sexual harassment. The new Bill represents a success for Gina Martin who has campaigned for this since she was the victim of “upskirting” at a music festival. Her experience highlighted the failings in the existing law to protect women and girls from the practice due to there being no clear definition of an offence.
The law is now catching up with technology and those in parks, cafes and even work places should now see some protection from this invasion of privacy.
Co-authored Fintan Canavan and Sarah Firth