Tackling Voyeurism: Is The Voyeurism (Offences) Act 2019 A Wasted Opportunity?
| DOI | http://doi.org/10.1111/1468-2230.12441 |
| Date | 01 November 2019 |
| Author | Alisdair A. Gillespie |
| Published date | 01 November 2019 |
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Modern Law Review
DOI: 10.1111/1468-2230.12441
LEGISLATION
Tackling Voyeurism: Is The Voyeurism (Offences) Act
2019 A Wasted Opportunity?
Alisdair A. Gillespie∗
The Voyeurism (Offences) Act 2019 amended the Sexual Offences Act 2003 to introduce a
new offence that would seek to tackle so-called ‘upskirting’. Whilst it originated as a Private
Members Bill, it was quickly taken over by the Government following a backbench blocking
manoeuvre. The Act ostensibly seeks to fill a loophole that exists within the law and to protect
the sexual autonomy and inherent dignity of women. Instead, I will argue, the legislation deals
with a niche area and is a wasted opportunity. Parliament chose to kick the issue into the long
grass, from where it will be difficult to recover, with parliamentary time likely to be scarce over
the coming years.
The Voyeurism (Offences) Act 2019 (VOA 2019) is the culmination of signif-
icant political pressure to introduce a criminal offence in England and Wales
to criminalise so-called ‘upskirting’. After an ill-fated attempt to leg islate by
way of a Private Members Bill (discussed below), it was eventually passed as
government legislation.
The genesis of the Act is in the belief that the criminal law did not adequately
tackle so-called upskirting. Whilst some forms of upskirting are prosecuted
under the offence of voyeurism;1this does not apply in all situations because
where the offence took place in a public space the requirement that a person
was doing a ‘private act’ cannot be satisfied.2Where upskirting takes place in a
public setting then the common-law offence of outraging public decency can
apply,3but this requires, inter alia, two people to have seen, or be capable of
seeing the act. Also, it is not a sexual offence in the same way that, for example,
the offence of voyeurism is.4
Whilst it would be wrong to say that the VOA 2019 was the result of a
single case, there can be little doubt that the treatment of Gina Martin was key
to raising this issue in the public consciousness. Gina Martin attended a music
festival in July 2017. Whilst standing in the crowd, a man took a picture up
∗Professor of Criminal Law and Justice, Lancaster University.
1 Sexual Offences Act 2003 (SOA), s 67.
2 A. A. Gillespie, ‘“Upskirts” and “down-Blouses”: Voyeurism and the Law’ [2008] Crim LR 370.
3RvHamilton [2007] EWCA Crim 2026 and see Gillespie, ibid.
4 The Law Commission has recommended that this offence is placed on a statutory footing, see,
Law Commission, Simplification of Criminal Law: Public Nuisance and Outraging Public Decency Law
Com No 358 (2015).
C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited. (2019) 82(6) MLR 1107–1131
Is the Voyeurism (Offences) Act 2019 a Wasted Opportunity?
her skirt. At the time she was unaware of it but saw a picture on the phone of
her genital area covered by thin underwear. She took the phone, and the man
became aggressive. She ultimately reported the matter to the police and a police
officer reviewed the footage and decided that there was no crime because it
was not graphic. Whilst they made the man delete the photograph, they did
not arrest him. After posting about this on social media, Martin received both
support and substantial misogynistic abuse. A campaign was begun to highlight
a potential gap in the law and, ultimately, it led to the VOA 2019.
The preceding paragraph is an extremely basic description of what happened,
but this does not undermine the fact that the Gina Martin case is a paradigm
of upskirting. Gina Martin demonstrated the range of emotions that arise
from such cases, but she refused to accept that nothing could be done. What
is interesting about the case, which has led to a change in the law, is that the
police were wrong. An offence had been committed and the suspect could, and
should, have been arrested. A music festival would be an obvious example of
a public place. The offence of outraging public decency clearly applied. There
were more than two people who saw, or could have seen, the photograph
being taken, and it is clear that taking a photograph up a woman’s skirt satisfies
the requirements for both ‘outraging’ and ‘public decency’.5What the Gina
Martin case shows is that some front-line police officers do not understand the
law. That is not to say that outraging public decency is an adequate offence,
because arguably it is not. However, unless this lack of understanding of the
law is addressed, then the VOA 2019 will be pointless. A law is only relevant
when enforced. Specialist training for judges and prosecutors is meaningless
unless police officers understand that upskirting is illegal. If they do not then,
as in the Gina Martin case, a victim will be let down.
It is perhaps not only the police that made a mistake in the Gina Martin case.
Many parliamentarians referred to the case as demonstrating a need to change
the law quickly. Whilst outraging public decency is far from perfect (not least
because it is arguably a public order crime rather than a sexual offence, which
may be relevant in terms of offender management), it did provide a safety net.
Due to the existence of this safety net, Parliament did not need to act as quickly
as it did. By rushing through the legislation it is submitted that Parliament has
failed women. It has passed flawed legislation that only minimally increases the
protection of women, and this can only be considered a wasted opportunity.
THE PASSAGE OF THE ACT
The VOA 2019 started out as a Private Members Bill, introduced by Wera
Hobhouse MP. However, during its second reading, the backbencher Sir
Christopher Chope MP shouted ‘object’,6a procedural mechanism which
effectively ‘kills’ a private members Bill. There was considerable uproar,7with
5RvHamilton n3above.
6 HC Deb vol 642 col 1269 15 June 2018.
7 J. Maidment and A. Mikhailova, ‘Tory MP Labelled a “dinosaur” by Furious Conservative
Colleagues after Blocking Ban on Upskirt Photographs’ Daily Telegraph 15 June 2018 at
1108 C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited.
(2019) 82(6) MLR 1107–1131
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