Trials and tribulations of upskirting

“Upskirting” has been a criminal offence in Scotland since 2010 and in England and Wales from April 2019. The recent change in England and Wales came about following years of campaigning by Gina Martin.

Ms Martin attended Hyde Park in July 2017 when a man took pictures from under her dress. She notified the police but was let down by the system when her complaints were not progressed and the investigations closed without prosecution. After a plea on Facebook, an online petition commenced and, despite intervention by a Conservative MP, Ms Martin has been successful in driving this matter into legislation.

Whilst an encouraging future for Scotland, England and Wales, the lack of a functioning executive in Northern Ireland means a lack of legislation and lack of implementation of legislative recommendations. The issue of upskirting returned to the agenda however as a former student of Enniskillen Royal Grammar School pleaded guilty to five acts of outraging public decency in taking pictures of two teachers in 2015 and 2016.  In May 2019, a panel of magistrates at Enniskillen Youth Court sentenced Mr Boomer to a 20 hour Attendance Centre Order to work with the Youth Justice Agency on victimisation. The offence of outraging public decency had to be applied as there was no offence of “upskirting” and no other compatible charge could be applied.  The plea of guilty removed the uncertainty from a prosecution which could have failed as the law has not kept pace with modern technology.

The delay in the case reflects the problems in prosecuting an action for which no clear offence exists.  Mr Boomer has now left the school and is attending university. He attended the sentencing hearing and was seated directly in front of the two teachers concerned who advise they have suffered PTSD symptoms as a result of the whole affair.

As commented on by panel member Ms Keates “Legislation has failed to keep up with the advent of mobile technology and it is clear new powers are needed to create an offence of upskirting”.

The ever-growing use of technology is widespread however, as the Northern Ireland assembly is non-existent, the issue of upskirting not being a criminal offence continues.

Written by Ciara McReynolds, solicitor at BLM

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