Upskirting Statistics
It is one year since the Voyeurism (Offences) Act 2019 came into force, which introduced a specific criminal offence to criminalise conduct known as “upskirting.”
The CPS have announced the statistics for prosecutions of the “upskirting” offence in the twelve months since the law was enacted. The CPS stated that 16 men have been convicted of 48 offences since 12 April 2019. Four of the men convicted of the offence received custodial sentences. The majority of offences were said to have taken place in shops and supermarkets, although some offences were also committed on public transport, streets and, on one occasion, a school.
The Law
Prior to the commencement of the Voyeurism (Offences) Act 2019, the CPS relied upon the common law offence of outraging public decency to prosecute allegations of ‘upskirting’. This created evidential difficulties for the CPS, in part due to the two-person rule, which requires that two people are able to see the activity in question, thus making the prosecution of a generally covert activity extremely problematic. However, another evidential difficulty that was often encountered by the CPS was the attribution of upskirting images to the Defendant (where recording had taken place).
Furthermore, a conviction for an offence of outraging public decency would not result in a Defendant being subject to the notification requirements under the Sexual Offences Act 2003 (the sex offenders register).
The purpose of the new statutory offences was to make it easier for the CPS to secure convictions by removing the requirement of the ‘two-person rule’ to be satisfied. In addition, the new legislation contains a provision that a Defendant convicted of the “upskirting” offence will become subject to the requirements of the sex offenders register.
The legislation creates two separate offences. The first offence criminalises conduct where the Defendant:
- operates equipment beneath the clothing of another person;
- with the intention of enabling the Defendant (or another person) to observe the subject’s genitals or buttocks (whether exposed or covered with underwear), or the underwear covering the subject’s genitals or buttocks in circumstances where the genitals, buttocks or underwear would not otherwise be visible;
- without the subject's consent, and without reasonably believing that the subject consents;
- for the purpose of obtaining sexual gratification or humiliating, alarming or distressing the subject.
The second offence criminalises conduct where the Defendant:
- records an image beneath the clothing of another person;
- the image is of the other person's genitals or buttocks (whether exposed or covered with underwear) or the underwear covering the other person’s genitals or buttocks in circumstances where the genitals, buttocks or underwear would not otherwise be visible;
- with the intention that the Defendant (or another person) will look at the image.
- without the subject's consent, and without reasonably believing that the subject consents;
- for the purpose of obtaining sexual gratification or humiliating, alarming or distressing the subject.
The maximum penalty for a conviction on indictment is a custodial sentence of two years.
Analysis
There is no reliable data for convictions of ‘upskirting’ conduct prior to the commencement of this offence, so there is no means of comparing data.
Furthermore, the statistics do not record a complete picture. For example, the statistics do not say how many suspects were arrested and not charged, nor do they say how many Defendants were charged but not convicted. So it is difficult to evaluate how effective the new offence has been for the Police and CPS.
However, in twelve months, there have been relatively few successful prosecutions for offences. There are a number of reasons why this may be:
- It is possible that the prevalence of this behaviour is less widespread than had previously been understood;
- Police and Prosecutors may still struggle to prove (beyond reasonable doubt) the attribution of images to the Defendant;
- Investigations and prosecutions have been slowed by the resourcing issues that Police and Prosecutors face, particularly in forensically analysing devices seized from Defendants.
The final reason why the numbers of successful prosecutions may be lower than anticipated is that the creation of a specific criminal offence was widely publicised in the media. This may have had the effect of raising awareness that such conduct is a crime and resulted in individuals modifying their behaviour. Although it may not be possible to deduce such a conclusion, if that is the case, then the legislation has achieved its intended purpose.
Mark Cotter QC, 5SAH. Mark specialises in general and financial crime. He defends and prosecutes at the highest level, with a particular emphasis on homicide, sexual allegations and white-collar fraud. He undertakes a very significant amount of private work, where reputational issues are at stake, and has, for many years, been ranked in Chambers and Partners as a leader in the field of crime at the London Bar. Mark is also ranked in the Legal 500 as a leading individual in the field of crime at the London Bar.
Nick Dent, Senior Associate, Kingsley Napley. Nick is an experienced criminal defence lawyer with experience in a broad range of general crime and white-collar crime cases. Nick deals with a wide range of cases including sexual offences, road traffic prosecutions, drugs offences and allegations of serious violence. Nick’s clients are often high profile or professional individuals who have both a livelihood and reputation at stake.
