Abstract
In September 2022, the complainant, C, who had consumed a number of drinks at a conference, boarded the 23.25 Thameslink train service from Brighton heading for London Blackfriars. At 00.51, Paolo Barone (B), an employee of the train operator, boarded the same train at London Blackfriars. That was C’s intended stop, but she had fallen asleep with her back to the window and her feet on the seat beside her. Her knees were bent with her head resting on her arms, which were folded across her knees. CCTV images showed that B had taken photographs of C, asleep, in that position. He had ‘bent downwards and towards’ C, which gave him a ‘different angle and closer position’ for his photographs, five of which were found on his phone.
B was charged under s 67A(2) of the Sexual Offences Act 2003 (the SOA, as amended by the Voyeurism (Offences) Act 2019), the offence known colloquially as ‘upskirting’. The actus reus of the s 67A(2) offence requires proof that the accused ‘records an image beneath the clothing of another person’ without their consent; that the image is of that person’s ‘genitals or buttocks (whether exposed or covered with underwear), or the underwear covering [their] genitals or buttocks’; and ‘in circumstances where the genitals, buttocks or underwear would not otherwise be visible’. The mens rea requires that the accused records the image ‘with the intention that [the accused] or another person will look at the image’ for the purpose of ‘obtaining sexual gratification’ and/or ‘humiliating, alarming or distressing’ the person in the image, and that the accused does not reasonably believe that the person in the image consents.
B appeared before Mr Recorder Ian Stern KC and a jury at the Crown Court at St Albans in March 2024. He was convicted and appealed, submitting that at least one, if not two, elements of the actus reus were not proven, viz., (i) that the photographs were not taken ‘beneath’ C’s clothing, and (ii) that the images were not taken in circumstances where C’s underwear ‘would not otherwise be visible’. This latter submission was based on the premise that the positioning of C’s clothing and her seating position meant that her tights and the outline of her underwear were ‘visible’ to any person who happened to be walking past or sitting in the adjacent seats.
(i) ‘Beneath the clothing’
The meaning of the word ‘beneath’ was ‘clear’ (at [17], per Stuart-Smith LJ giving the unanimous judgment of the Court of Appeal). It could not be said that ‘beneath’ applied ‘only to images which were recorded from “closer to the floor”. That would exclude a case where a person was horizontal, for example, resting or lying down, which would make no sense’ (at [17]). The ‘essence’ of the offence of ‘upskirting’ contrary to s 67A(2) SOA concerned people who looked up a person’s legs to their private parts despite the fact that the person had clothed that part of their body. It did not matter whether the skirt was short or long; the concept was the same (at [17]). (ii) ‘in circumstances where the genitals, buttocks or underwear would not otherwise be visible’
The requirement (under both s 67A(1) and s 67A(2)) that the equipment was operated, or the image was taken, beneath the clothing ‘in circumstances where the genitals, buttocks or underwear would not otherwise be visible’ meant proof that upskirting would give the accused ‘a view (or image) of the victim’s private parts that would not be available otherwise than by upskirting’ (at [18]). That requirement had been met in B’s case. As the photographs and CCTV clearly showed, B had only obtained the images of C’s underwear ‘by placing himself and his camera in specific positions’. His argument that her underwear was on ‘display’ was ‘as inaccurate as it is outrageous’ (at [18]). C’s lower legs and feet ‘provided a significant barrier to intrusive and prying eyes’. If other people on the train had shared B’s inclination, they could ‘have manoeuvred themselves to a position’ where they could see C’s underwear. However, it was ‘simply wrong’ to suggest that the other people on the train (who had not adopted the same position as B) could even see C’s underwear, let alone to assert that they were ‘on display’.
Commentary
The CPS guidelines on s 67A(2) SOA explain that ‘upskirting’ is a colloquial term referring to the action of placing equipment such as a camera or mobile phone beneath a person’s clothing to take a voyeuristic photograph without their permission… It is often performed in crowded public places, for example on public transport (www.cps.gov.uk/legal-guidance/voyeurism).
(i) ‘Beneath the clothing’
What Barone demonstrates first of all is that the phrase ‘beneath the clothing’ in s 67A(1) and (2) SOA should be interpreted simply to mean under the outer clothing, consistent with the meaning given in ordinary English to the word ‘underwear’. It follows that the actus reus element of ‘beneath the clothing’ is satisfied if the victim was wearing a skirt (or similar outer garment) over their genitals, buttocks or underwear. As the CPS guidelines explain, ‘upskirting’ is ‘a colloquial term’; the word itself does not appear in the SOA. It follows that it is neither necessary for the defendant’s recording equipment (typically a camera or mobile phone) to be literally pointing ‘up’ nor for the victim to be wearing a ‘skirt’. On the former point, the Court of Appeal made clear that the direction from which the image was taken (in the context of s 67A(2)) is immaterial. The fact that the alleged victim of an upskirting offence is sitting or lying down, as opposed to standing, is irrelevant. On the latter point, whilst the stereotypical ‘upskirting’ offence will involve a person wearing a skirt, the victim could instead be wearing a kilt or shorts.
(ii) ‘in circumstances where the genitals, buttocks or underwear would not otherwise be visible’
The second aspect of the Barone judgment is the clarification that ‘would not otherwise be visible’ in s 67A means a view of the victim’s genitals, buttocks or underwear that ‘would not be available otherwise than by upskirting’ (at [18], emphasis added). This means that a person’s private parts are not already ‘visible’ if the defendant would have to have ‘manoeuvred themselves to a position’ in order to view (and record) them (at [18]). In any future case where a similar argument is advanced, a trial judge could usefully tell the jury to ask themselves whether the defendant had ‘manoeuvred themselves’ into a position. The Court of Appeal said that it would not be ‘helpful to suggest different factual circumstances which may fall either within or outside the statutory requirements’ (at [19]) but the fact that B was only able to see and photograph C’s underwear by ‘placing himself and his camera in specific positions’ (at [18]) after he had ‘bent downwards and towards’ her (at [9]) was fatal to his appeal. He had clearly ‘manoeuvred’ himself into a position in order to see (and photograph) something that was not already ‘visible’.
Consistency with other jurisdictions
It is useful to consider what the outcome would have been had B performed the same conduct in one or more of the Australian states that have legislated on the subject. Interestingly, none of the relevant statutes refer to the victim’s clothing or specify that the victim’s genitals, buttocks or underwear must not be visible otherwise than via upskirting conduct. Instead, in New South Wales, a person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person’s private parts, in circumstances in which a reasonable person would reasonably expect the person’s private parts could not be filmed (a) without the consent of the person being filmed to being filmed for that purpose, and (b) knowing that the person being filmed does not consent to being filmed for that purpose
In Victoria, a person must not intentionally visually capture another person’s genital or anal region in circumstances in which it would be reasonable for that other person to expect that his or her genital or anal region could not be visually captured (s 41B of the Summary Offences Act 1966, as amended). visually records another person’s genital or anal region, in circumstances where a reasonable adult would expect to be afforded privacy in relation to that region (a) without the other person’s consent; and (b) when the observation or visual recording is made for the purpose of observing or visually recording the other person’s genital or anal region.
In essence, in these Australian states, it is illegal to film/visually record/visually capture another person’s ‘private parts’/‘private region’/‘genital or anal region’ in circumstances where there is a ‘reasonable expectation’ of privacy in relation to those parts/that region. A passenger on a train, like C, surely has such an expectation. It is submitted that B’s conduct would be caught by any of these Australian ‘upskirting’ offences, which reinforces the safety of his conviction under the SOA.
