Voyeurism — Section 67 of the Sexual Offences Act 2003
Under section 67, voyeurism is committed where a person intentionally observes another person doing a private act without their consent, for the purpose of obtaining sexual gratification. A private act is one that a person would reasonably expect to carry out in private — being naked, using a toilet, or engaging in sexual activity. The prosecution must establish that the purpose of the observation or recording was sexual gratification. If the act was motivated by curiosity, a mistake, or a different form of malice, the specific sexual offence of voyeurism may not be made out, although other offences may arise depending on the circumstances.
Upskirting — Section 67A and the Two Offences
The Voyeurism (Offences) Act 2019 inserted section 67A into the Sexual Offences Act 2003 to create two specific criminal offences. Section 67A(1) — operating equipment — covers placing or operating equipment beneath another person's clothing with the intent to view genitals, buttocks, or underwear, or to enable another person to view them. The offence is committed even if no image is actually captured — the intent to view is sufficient. Section 67A(2) — recording an image — is charged where an image beneath a person's clothing has been successfully recorded. The law protects privacy regardless of the victim's gender or what they were wearing.
Challenging Intent — The Motive Battleground
Both voyeurism and upskirting require a specific intent or purpose. For voyeurism, the purpose must be sexual gratification. For upskirting, the purpose must be sexual gratification or the causing of humiliation, alarm, or distress. The absence of the required intent is a complete answer to the charge. Allegations in these cases often arise in crowded settings. Where an image was captured accidentally — for example, by an automatic or unintended camera trigger — or where the positioning of a device can be explained by a reason other than the required intent, these alternative explanations can be developed through digital forensic evidence.
Digital Forensics and Pre-Charge Engagement
Investigations routinely involve the seizure of mobile phones and other devices for forensic examination. Data recovered — including image metadata, timing and sequence of captures, and device location at the time — can be examined by independent experts. Material providing context, such as evidence of accidental or automatic image capture, can be significant to the defence. The period during which devices are being forensically examined — which can extend across several months — is the most important window for early legal engagement and representations to the CPS.
Sentencing and the Sex Offenders Register
Both voyeurism and upskirting carry a maximum sentence of two years' imprisonment. Where the court imposes a sentence of imprisonment, a community order, or a conditional discharge, the defendant will be subject to mandatory notification requirements under the Sexual Offences Act 2003, for a period determined by the sentence. The implications for employment, travel, and other aspects of daily life can be long-lasting.