On 12th February 2019, the Voyeurism Act 2019 received Royal Asset. The Act makes certain acts of voyeurism an offence and extends the range of Section 67 of the Sexual Offences Act 2003 to include these new offences, namely, upskirting. From April, police will be able to enforce the new law and arrest anyone suspected of committing an offence under the act.

What is upskirting?

A person commits the offence of upskirting in the following circumstances. A person (A) commits an offence if:

1. A operates equipment beneath the clothing of another person (B),
2. A does so with the intention of enabling A or another person (C), for a purpose mentioned in subsection (3), to observe
3. A operates equipment beneath the clothing of another person (B),
4. A does so with the intention of enabling A or another person (C), for a purpose mentioned in subsection (3), to observe
1. B’s genitals or buttocks (whether exposed or covered with underwear), or
2. the underwear covering B’s genitals or buttocks, in circumstances where the genitals, buttocks or underwear would not otherwise be visible, and
5. A does so:
1. without B’s consent, and
2. without reasonably believing that B consents.

OR

A person (A) commits an offence if:

1. A records an image beneath the clothing of another person (B),
2. the image is of
1. B’s genitals or buttocks (whether exposed or covered with underwear), or
2. the underwear covering B’s genitals or buttocks, in circumstances where the genitals, buttocks or underwear would not otherwise be visible,
3. 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
4. A does so
1. without B’s consent, and
2. without reasonably believing that B consents

for the purposes of obtaining sexual gratification or humiliating, alarming or distressing B.

What is the potential sentence?

1. On summary conviction, the offender could be subject to imprisonment for a term not exceeding 12 months, or to a fine or both.
2. On conviction on indictment, the offender could be subject to imprisonment for a term not exceeding 2 years.
3. The most serious offenders may also be subject to the sex offenders register.

Upskirting has been a criminal offence in Scotland since 2010 and the campaign to bring it into Law in England has been led by Gina Martin, who the victim of upskirting at a music festival. She reported the incident to the police but was informed that there was no specific offence to cover the incident. Previously, an instance of upskirting would have been prosecuted under the common law offence of outraging public decency. However this did not cover all possible iterations of the offence, as the act would have to be carried out in public place and in the presence of two or people capable of witnessing the act (regardless of whether they did in fact witness it). It is hoped that the legislation will ensure consistency as to how the offence is investigated and prosecuted going forward.

If you would like advice on upskirting or criminal penalties for sexual offences, contact JMW’s Business Crime team for advice.