On 20th February 2018 the Times ran an article headed “Loophole makes it harder to charge upskirt voyeurs”. In fact, it is possible in very many “upskirting” to prosecute the offender for the criminal offence of outraging public decency. Victims should be encouraged to report incidents to the Police, and the Police should take these complaints seriously and investigate them properly.
The ‘loophole’ that the Times article identifies is that the criminal law in England and Wales does not have a criminal offence specifically labelled “Pointing cameras up skirts and taking photographs”. But to leave it like that is to tell only half the story, because if you point a camera up someone’s skirt and take a photograph you are very likely to be committing a criminal offence that does already exist and which has another label – outraging public decency.
The Times article and various articles online discuss that victims are (to use the words of the Times article) ““left to pursue voyeurism or indecency claims”. The plight of upskirting victims is plain to see in the media reports: they take their complaints to the Police and the Police don’t know what to prosecute for, sometimes they don’t even have a proper means to record the complaint: does it come under their classification of a sex offence or not? One victim told the Independent that the Police dismissed what had happened to her as a ‘prank’.
As a society, we would undoubtedly tackle the problem of upskirting head-on by creating a new and specific offence. This would be the best way to send a message out that this behaviour must stop. But we must not forget that there are two weapons available to the Police and prosecutors right now.
First, there is the voyeurism offence created by sections 67 (and 68) of the Sexual Offences Act 2003. The situation is not helped by incorrect reporting such as this in the Metro News on 19th February 2018:
“Taking non-consensual photos like this only become[s] a criminal offence if the person in the photos is in a private place, and their genitals are exposed. This makes them in breach of the Sexual Offences Act.”
Whilst the voyeurism offence frankly won’t help in most cases of upskirting, it is wrong to say that before an offender can be prosecuted for voyeurism, the genitals of the voyeur’s victim must have been exposed. You are guilty of voyeurism if, for your own sexual gratification, you observe or record someone doing a private act without that person’s consent. At the time, the other person’s private areas must be exposed (or covered only by underwear) OR they must be using the lavatory OR they must be doing a sexual act that is not the sort you’d expect to be done in public. So if you film someone who is using the lavatory, for example, you are guilty of the voyeurism offence whether the victim’s genitals are exposed or not.
Outraging public decency
The Police need to be vigilant about the real possibility of charging upskirters with the offence of outraging public decency. I suspect that this is being overlooked or misunderstood by Police Forces when victims report these incidents. Upskirters who target women in public places will very likely be guilty of this offence.
The law has developed over the years, and in 2008 the Court of Appeal considered an actual case of upskirting activity (R v Hamilton  EWCA Crim 2062).
Mr Hamilton, who interestingly was a barrister, would walk round supermarkets secretly video-recording up women’s dresses. One of his victims was identified to be a 14 year old girl working at one of the stores. His technique was to position a digital camera at the top of his rucksack, pointing upwards, and he would then place the rucksack strategically on the ground so that the camera recorded up his victims’ skirts to their underwear and crotch areas.
There was no evidence that anyone saw him do it. His offending only came to light during a search of his house when the Police found 20 hours of upskirting video footage. The jury convicted him of doing an act outraging public decency, and he took his case to the Court of Appeal saying that he was not guilty. He lost. Because upskirting is not a criminal offence in its own right (yet), the Court of Appeal looked at the boundaries of the law of outraging public decency and whether it caught Mr Hamilton’s activities.
It boiled down to these four questions, which should be asked in every case of upskirting:
- Were the offender’s actions in recording up women’s skirts lewd, obscene or disgusting? It does not matter whether anyone was ever aware of what he was doing. (The jury in Mr Hamilton’s case thought so).
- Did the offender’s actions in recording up women’s skirts go so far as to outrage the minimum standards of common decency in today’s society? (The jury in Mr Hamilton’s case thought so).
- Was the location of the offender’s upskirting a place to which the public had access or a place where members of the public were capable of witnessing it? This includes places to which members of the public might pay to enter, such as festivals, concerts and galleries. (Mr Hamilton did his filming in supermarkets which are obviously public places).
- Was the location of the offender’s upskirting a place where two or more persons were actually present and who were capable of witnessing the nature of the act? It does not matter whether anyone actually did witness it. (In Mr Hamilton’s case, his own camera footage helped convict him because it showed that there were many other people around.)
A matter of evidence and thorough investigation
The media reports give accounts of upskirting victims catching the offender at it but later finding little sympathy from the Police. In these cases, the Police should actively investigate for the evidence that the offence of outraging public decency requires, guided by the four tests in Hamilton’s case. Did the victim see, for example, whether other people were also present in the supermarket aisle, or in the park or wherever the offence took place? The victim’s evidence that there were other people around is good evidence that there were other people around. It may even be that the victim herself counts as one of the two minimum necessary people. Critically, whether anyone actually witnessed what the upskirter did is completely irrelevant.
Proving that other people were capable of witnessing the offender’s actions may not be so difficult. The Court of Appeal said this about Mr Hamilton’s upskirting:
“It cannot be said that this type of filming is incapable of being seen. Whether on the facts of this case the way in which the appellant filmed up the skirts of the women was capable of being seen was a question for the jury.”
Let’s be plain: prosecuting for outraging public decency is never going to be as effective as having a specific offence of upskirting which would avoid the jury having to consider the four tests for the offence of outraging public decency.
Another limitation is the ‘public’ aspect of outraging public decency. This would normally mean that upskirting in someone’s home or workplace, for example, is not against the law. But even if the crime took place in a private area it would still outrage public decency if members of the public were capable of witnessing it. This extended definition would include a private house balcony or even someone’s living room next to the window overlooking the street. The Prosecution would still have to prove that there were two or more people around.
The Police should consider those four tests for outraging public decency identified in the case of Hamilton which has, after all, been around for ten years now. Most upskirters act in public and around members of the public. Only that way do they have the ‘disguise’ of just appearing to be another member of the public. People who engage in this insidious and disgusting activity will likely find that a jury has little sympathy with them. They are liable to be found guilty of outraging public decency, just as Mr Hamilton was.