Upskirting and the Voyeurism Bill: what went wrong and how the government plans to put it right

Earlier this month the Ministry of Justice (MoJ)  announced that ‘upskirting’ was to become a specific criminal offence, thanks to a Private Members Bill brought forward by the liberal democrat, Wera Hobhouse MP, after a vigorous public campaign by a victim of the practice, Gina Martin.

The Voyeurism (Offences) Bill 2017-19 would have created a specific offence of the highly intrusive practice, which ‘typically involves offenders taking a picture under a person’s clothing without them knowing, with the intention of viewing their genitals or buttocks’, with the worst offences carrying a penalty of up to two years’ imprisonment. The second reading of the bill was due to take place on 15 June 2018 in the House of Commons but it did not take place and its progress was blocked.

It was widely supported and was not thought to be controversial.

Chope and his champions

Unfortunately, the MoJ had reckoned without the ability of the maverick Tory MP, Sir Christopher Chope, to derail the progress of the bill by shouting, at the critical moment, ‘object’. The result was that the bill’s progress was blocked.

Chope later admitted he had no idea what upskirting was at the time, and asserted that his objection was a procedural rather than substantive one. After an apparently cordial meeting with Martin he has said he now supports the intention behind the proposed legislation.

Bizarrely, though, Chope’s objection was understood by some commentators as a stand against excessive or unnecessary legislation – parliamentary activism, if you like – in other words as a substantive rather than procedural objection. See for example, an article by Melanie McDonagh in The Spectator, In defence of Christopher Chope’s ‘upskirting’ objection, in which she argues that the current law is perfectly adequate to deal with the problem. In a guest post on the Secret Barrister blog, James Chalmers, Regius Professor of Law at the University of Glasgow, and Ryan Whelan, an Associate at Gibson, Dunn and Crutcher LLP (and incidentally Gina Martin’s lawyer), patiently explain why Melanie McDonagh is plain wrong on “upskirting”.

Others, mostly in a facetious vein, took Chope’s objection to be a robust endorsement of the practice of upskirting itself.  He might have anticipated this, of course, given his own refusal to articulate his objection beyond the peremptory bark by which it was expressed. He later told his local paper, the Bournemouth Echo:  ‘The suggestion that I am some kind of pervert is a complete travesty of the truth. It’s defamatory of my character, and it’s very depressing some of my colleagues have been perpetuating that in the past 48 hours.’ Depressing although it may be; surprising it definitely isn’t.

The government steps in

Following the setback, Theresa May, while sparing Chope the castigation many thought he deserved, stated that the Government would itself provide time for the Bill to be progressed. Instead, as promised by justice minister Lucy Frazer in a debate on 18 June 2018, it has now brought forward its own proposed legislation, the Voyeurism (Offences) (No 2) Bill 2017-19.

Frazer explained the need for the legislation as follows: ‘Although there are existing offences that can be used to punish upskirting in some circumstances, there is a gap in the law. The offences of outraging public decency or voyeurism may be used to capture upskirting. However, the public order offence is limited, as the offence needs to take place in a public place and two people need to be present.

Conversely, the voyeurism offence needs to be a private act and must take place in a place where one would expect privacy. There may be activities, such as photographs taken in schools, that are not caught by either provision. This law will close that loophole, and ensure there is no doubt that this activity is criminal and will not be tolerated. For the most serious sexual offences, we will ensure that the offender is also placed on the sex offenders register.’

The government bill is a short one, consisting of only one substantive section, whose wording deviates only slightly from that of Hobhouse’s private members bill. Section 1 in turn amends the Sexual Offences Act 2003 by inserting a new section 67A entitled ‘Voyeurism: additional offences’, which would apply in England and Wales. (A similar offence already exists in Scotland, under section 9(4A) and (4B) of the Sexual Offences (Scotland) Act 2009.)

The new section invests the invasive and degrading conduct colloquially known as ‘upskirting’ with all the pedantic precision of parliamentary drafting, making it an offence if a person ‘operates equipment beneath the clothing of another person’ with the intention of observing that person’s ‘genitals or buttocks (whether exposed or covered with underwear)’ in circumstances where ‘the genitals, buttocks or underwear would not otherwise be visible’ and without the other person’s consent. There is a similar offence in respect of ‘recording an image’, and in both cases there has to be a purpose of ‘obtaining sexual gratification’ and/or ‘humiliating, alarming or distressing’ the victim.

The offence is therefore quite technical, and requires proof of a number of elements. For example, the equipment (eg the camera of a mobile phone) must have been ‘operated’ – which might raise a question about equipment working accidentally or automatically. The offence does not seem to apply to equipment operated above clothing, and the word ‘beneath’ might give rise to questions of interpretation.

Does it mean ‘below’ or can it include ‘inside’ or ‘within’? How is the prosecution to prove that the purpose of the intrusive act was, indeed, to obtain sexual gratification or to humiliate, alarm or distress the victim? Might it not have been a stupid prank or to win a bet or to obtain copy for the Mail Online’s famously attentive scrutiny of the public dress sense of minor celebrities?

Does it go far enough?

Another objection to the Bill might be that, in so far as it seeks to deal with an image-based sexual abuse, it does not go far enough. Why does it not take the opportunity, as Maria Miller MP (chair of the Women and Equalities Committee) suggested during the debate on 18 June, of dealing with ‘revenge pornography’?

This point was also made by Erika Rackley, Professor of Law, University of Birmingham and Clare McGlynn, Professor of Law, Durham University in an article in The Conversation reposted on Inforrm’s blog: ‘Upskirting’ and ‘revenge porn’: the need for a comprehensive law. They point out that the current criminalisation of revenge porn is unsatisfactory in a number of ways.

Despite these objections (which may well be cured in the course of the Bill’s more assured progress, as a government bill, through the legislative process), the fact that the problem is now being dealt at all must be regarded as a positive development. As Gina Martin herself commented via Twitter after the initial debacle, ‘it’s not always easy to keep faith as an outsider to Parliament’ but ‘when our bill goes through it will be a brilliant day for women and girls across the country’.

Paul Magrath is head of product development at the Incorporated Council of Law Reporting for England and Wales (ICLR) and a member of the Transparency Project. His book, Transparency in the Family Courts, co-authored with Lucy Reed and Julie Doughty, is published by Bloomsbury Professional.

Upskirting: the Gibson Dunn lawyer working pro bono to change the law

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