Voyeurism (Offences) (No.2) Bill

Written evidence submitted by Geoffrey Monaghan FRSA, Independent Consultant (VOB02)

1. Introduction

1.1 This evidence is submitted in a personal capacity.

1.2. I am grateful for the opportunity to submit my evidence to the Public Bill Committee to help inform its consideration of the Voyeurism (Offences) (No. 2) Bill.

1.3 By way of background, I worked as a police officer for 30 years (1976-2006), the majority as an operational detective and latterly as a researcher, policy advisor and staff officer to police officers of ACPO [1] rank. As a detective constable and sergeant working in the London Boroughs of Croydon, Southwark and Haringey I investigated allegations of rape, indecent assault and indecent exposure. As a staff officer, I spent a good deal of my time poring over police powers of arrest, search and seizure, with a view to identifying lacunae and areas of legal uncertainty and making recommendations as to how they could be filled or resolved.

1.4 From 2005-2011, I worked for the United Nations Office on Drugs (UNODC) in Russia and Vietnam as the Drugs and HIV prevention and Care Expert. Again, much of my work was given over to reviewing the criminal and administrative offences codes of these countries and related police policies and practices vis-à-vis HIV prevention, treatment and care.

1.5 Since leaving UNODC in December 2011, I have worked as an independent consultant in the UK, Vietnam and Malaysia. My areas of focus are international drug policy, police ethics and law enforcement strategies and tactics.

1.6 During my time as a police officer, I carried out hundreds of stops and searches using powers provided under various statutes.

1.7 In recent years I have published a number of articles on the history of stop and search powers [2] [3] [4] and legal anomalies arising from police powers of arrest, search and seizure. [5] [6] [7] [8] [9] [10] [11] [12]

2. Executive Summary

2.1 I welcome and support the Voyeurism (Offences) (No. 2) Bill.

2.2 I respectfully recommend the Committee Members include a stop and search power in the Bill. This amendment will help police officers to investigate allegations of upskirting prior to arrest, particularly in circumstances where the suspect, having simply concealed his mobile phone in his clothing or vehicle, denies he has one when questioned by police.

2.3 A power to stop and search will also assist police in those cases where suspects have installed covert miniature cameras in their shoes, clothing or objects they are carrying (e.g. backpacks, briefcases, sports bags).

2.4 In the absence of a stop and search power, I fear there is a substantial risk that many investigations will be thwarted from the outset.

2.5 In addition to helping bring offenders to justice, a stop and search power could also work in the suspect’s favour.

2.6 If a power to stop and search is included in the Bill, I respectfully recommended that it follow the wording as set out in paragraph 5.1 below.

2.7 Although there is a great deal of controversy over stop and search powers, they have been provided in a number of Acts where the suspect is in possession of an article which he intends to use or has used to commit a specified offence. Such articles include: anything that could be used to threaten or harm any person, [13] badger tongs, [14] traps, snares or poisoned or stupefying bait, [15] articles made of adapted or intended for use in the course of or in connection with, burglary, theft, taking motor vehicles or other conveyances without authority, fraud and criminal damage [16] and poaching equipment. [17]

3. Advantages of a stop and search power

3.1 The points in the Executive Summary are elaborated in the two scenarios and discussion that follow. In contemplating the scenarios, Members of the Committee are asked to assume the Bill, in its current form, has been enacted and section 67A of the Sexual Offences Act (SOA) 2003 is now in force.

Scenario 1

‘R’, a male aged 45, with convictions for exposure (s. 66 SOA) and sexual assault (s.3 SOA), is in a shopping arcade. He is in possession of a mobile phone and intends to use it to photograph or video the underwear of young women using the escalators in the arcade.

‘S’ a woman aged 20 is also in the arcade. She is wearing a mini skirt. R sees her and follows her and after ten minutes or so, she heads for one of the ascending escalators. R follows and while standing behind her, he quickly uses his mobile phone to video her buttocks and underwear.

Unbeknown to R, a woman (‘T’), standing at the top of the escalators has witnessed his actions. She takes S to one side and tells her that she ‘is the victim of upskirting’. T describes R’s actions and the phone he is carrying. She then identifies R who is walking towards one of the arcade’s fast-food restaurants. As luck would have it, T then sees a security guard and tells him what she has seen. S is annoyed and a little distressed on hearing the allegation and asks the security guard to call the police which he does. T makes it clear, however, that she does not want any further involvement in the incident and refuses to provide her name and address.

When the police arrive, R is still inside the restaurant. S and the security guard identify him as the suspect and the officer (a uniformed constable) puts the allegation to him. R feigns innocence and denies that he is possession of a mobile phone. Otherwise, he is cooperative and provides his name and address. He also accepts that he might have followed S up the escalator but puts this down to happenstance. While he is being questioned, the security video is reviewed and although it shows R standing behind S on the escalator, it isn’t at all clear if R has been upskirting. A woman ‘looking like T’ is also visible at the top of the escalator and the recording clearly shows her talking to S. While all this is going on, the mobile phone containing the upskirting video recording is sitting in the inside pocket of R’s jacket.

Having carried out a Police National Computer check on R, the officer is aware that he has convictions for sex crimes but in the absence of T and a power to search R for the mobile phone, he decides he does not have sufficient grounds to arrest him. He explains his reasoning to S who accepts his decision. R is allowed to leave the restaurant.

In keeping with service directions, the allegation is recorded but classified as ‘No Crime’.

Scenario 2

‘P’ a woman aged 25, is withdrawing money from a freestanding ATM inside the public entrance of a railway station. She is wearing a mini dress. While carrying out the transaction, she happens to glance over her right shoulder and sees a man (‘Q’) bending down behind her. He is positioned some 18 inches or so from where she is standing. She notices that he is holding a black oblong- shaped object in his right hand. Believing the object to be a mobile phone she suspects the man is upskirting. Wary of challenging him, she completes the transaction, makes a mental note of his appearance, and then goes to the ticket office to report her suspicions to the station supervisor. In turn, he contacts the British Transport Police (BTP). Meanwhile Q withdraws cash from the ATM and then makes his way to one of the platforms.

Some ten minutes after receiving the call, a uniformed BTP officer attends the station and after speaking to P, asks her to identify Q. She does so and confirms that she is willing to make a formal complaint.

The officer approaches Q and tells him that P has made an allegation that he has used his mobile phone to photograph or attempt to photograph her underwear while standing behind her at the ATM. Q is visibly shocked on hearing the allegation and denies it. Having been cautioned by the officer, Q admits that he did bend down behind P but only to retrieve his debit card which had fallen from his wallet after removing it from the inside pocket of his jacket. He shows the officer the wallet which is indeed black and oblong-shaped. The officer notes that the wallet is similar in size and shape to some mobile phones in common use. Q opens his wallet and the officer is able to verify that it contains a debit card, ten newly issued £10 notes, a cash withdrawal slip confirming the transaction and a day return train ticket.

When asked, Q denies that he is carrying a mobile phone and tells the officer that he has a new mobile phone on order because his previous phone was stolen two days ago while he was attending a conference. He tells the officer that he reported the theft to Mr West, a security guard working at the conference centre. The officer dutifully notes the details of the conference centre and the name of the security guard. He also records the make and model of the phone and the service provider.

While talking to Q, the officer receives information from the station master that the security camera covering the ATM hasn’t been working for the last 24 hours.

For her part, P is adamant that she saw Q holding a mobile phone.

The officer knows that unless he arrests Q, he has no statutory power to search him to confirm or dispel P’s assertion that he is indeed in possession of a phone. Q invites the officer to search his jacket and trouser pockets but mindful of the restriction on voluntary searches, the officer declines: see the Police and Criminal Evidence Act (PACE) 1984 Codes of Practice, Code A, para. 1.5 which states:

An officer must not search a person, even with his or her consent, where no power to search is applicable. Even where a person is prepared to submit to a search voluntarily, the person must not be searched unless the necessary legal power exists, and the search must in accordance with the relevant power and the provisions of the Code. The only exception, where an officer does not require a specific power, applies to searches of persons entering sports grounds or other premises carried out with their consent given as a condition of entry.

Having been asked, Q gives the officer the number of his ‘stolen’ mobile, which the officer calls, but there is no dialing tone. A visual search of area where Q was sitting before the officer approached him proves negative and there is nothing to indicate that he has thrown a phone onto the tracks.

In the officer’s opinion the available evidence falls short of the reasonable grounds he requires to carry out an arrest under s. 24 (2) of the Police and Criminal (PACE) Act 1984. Having obtained the personal details of Q, and other information pertinent to the investigation, he tells him that the allegation will be recorded as a crime and his supervisor will decide if any further action is warranted. The officer then tells Q that he is free to go about his business. Having missed his train for an urgent appointment, Q is disgruntled and tells the officer he is going to seek legal advice regarding the ‘unfounded allegation’ and the officer’s actions.

P is furious with the course of action the officer has taken and tells the officer she plans to take the matter further. She reasserts her claim that Q is in possession of a mobile phone and is at a loss to understand why the officer refused to follow through on his offer to search his outer clothing. She tells the officer she is minded to make a complaint

As it happens, Q is telling the truth and P, although she made the allegation in good faith, is mistaken in thinking the wallet was a mobile phone.

Nevertheless, the matter is fully investigated and the officer is instructed to contact Mr West, the security guard, to confirm Q did indeed report the theft of his phone. The officer also contacts the mobile phone company to confirm Q’s story. Having been reviewed yet again by a supervising officer, the allegation is classified as ‘No Crime’.

4. Discussion

4.1 Committee Members are likely to agree that had a power to stop and search been available to the officer in scenario 1, the outcome would have been very different. R’s statement that he didn’t have a mobile phone in his possession would easily have been refuted once the officer had searched his jacket. In turn, this would have given weight to the officer’s suspicions that he had committed an offence. Had R then refused to disclose his passcode to enable the officer to view any photographs or videos stored on the mobile, it is almost certain that an arrest would have followed. Having lawfully seized the mobile, police can set about accessing its data, either with or without R’s consent. In the scenario described, R would have been arrested, prosecuted and very likely convicted.

4.2 The absence of a power to stop and search suspects could well encourage officers to ‘take a chance’ and arrest the suspect in anticipation that a subsequent search will uncover the mobile phone. (See s. 32(2)(a)(i) of PACE which allows a constable to search an arrested person, at a place other than a police station, for anything which might be evidence relating to an offence, and s. 54 (1) and (6) of PACE which allows the custody officer at a police station to authorise a search of the detainee for the purposes of ascertaining everything he has with him). If police officers adopt this approach, then it could well call into question the legality of any arrest made under s. 24 of the Police and Criminal Evidence Act 1984.

4.3 A further point to consider is that once the public are aware that police officers are not empowered to stop and search a person suspected of upskirting, complainants or witnesses may feel the need to snatch the mobile phone or other equipment from the suspect. This could lead to potentially dangerous tussles in public or private places. In some cases, innocent parties could be injured. There are cases on record where complainants have snatched the mobile phone from suspects including the well-known case involving Ms Gina Martin. [18] [19]

4.4 A power to stop and search in scenario 2 could well have absolved Q at a far earlier stage of the investigation. Moreover, the stop and search power could very well have prevented losses to the public purse incurred by needless additional investigation arising from the allegation and the subsequent complaints made by P and Q.

4.5 In short, in cases where the complainant or witness misinterprets the actions of the suspect, a negative search could mean that an innocent person avoids the indignity of arrest.

5. Stop and Search Power

5.1 If Committee Members are minded to accept my recommendation that a stop and search power is included in the Bill then I suggest the following wording:

2 Power of constable to stop and search persons, vehicles etc.

(1) If a constable has reasonable grounds for suspecting that any person is wearing, carrying or otherwise in possession of any equipment or device used in the commission of an offence under this section, the constable may -

(a) search that person and any article he has with him, and detain him for the purpose of searching him;

(b) search any vehicle, or anything which is in or on a vehicle, if he has reasonable grounds for suspecting that any equipment or device used in the commission of an offence under this section may be found, and for that purpose require the person in control of the vehicle to stop it;

(c) seize and detain, for the purposes of proceedings under this section anything found in the course of the search which appears to the constable to be evidence of an offence under this section;

(d) a constable may use reasonable force, if necessary, in the exercise of his powers under this subsection.

(2) The powers to stop and search above apply to vessels, aircraft and hovercraft as they apply to vehicles.

5.2 The power to stop and search will be subject to the provisions set out in ss. 2 and 3 of PACE and conducted in accordance with Code A, of the Codes of Practice made under PACE.

5.3 Press reports confirm that some suspects convicted of upskirting have used cameras concealed in shoes, [20] a watch and key fob. [21] Others have hidden cameras in specially converted bags. On this basis, it is likely that suspects and their belongings will need to be thoroughly searched. In this context, Committee Members are respectfully reminded of the provisions set out in s. 2 (9) of PACE which states:

Neither the power conferred by section 1 [PACE] … nor any other power to detain and search a person without first arresting him or to detain and search a vehicle without making an arrest is to be construed –

(a) as authorizing a constable to require a person to remove any of his clothing in public other than an outer coat, jacket or gloves; or

(b) as authorizing a constable not in uniform to stop a vehicle.

5.4 As happens now, in cases where the constable decides that he needs to search the suspect’s shoes or conduct a more thorough search (e.g. by requiring him to remove a sweater or his hat) then this must be done out of public view, for example in the store detective’s office (see para. 3.6 of Code A). In cases where it is anticipated that the search will involve the exposure of intimate parts of the suspect’s body, it must be carried out at a nearby police station (see para. 3.7, Code A).

5.5 On occasions, suspects may hide equipment they have used to commit one or more offences of upskirting in their underclothes in an attempt to thwart a search conducted by a constable. It makes sense, therefore, that officers be allowed to conduct more thorough searches provided they adhere to the provisions set out in ss. 2 and 3 of PACE and Code A.

6. Conclusion

6.1 Police officers enjoy a wide range of powers which allow them to search suspects in possession of all kinds of articles, objects and substances - from an Adder (Vipera berus) [22] to Zilpaterol (a Class C controlled drug). [23] Given the extent of public and Parliamentary support for the criminalisation of upskirting, it would be extraordinary if our police officers lacked the necessary powers to help them enforce this much-needed piece of legislation.

10 July 2018


[1] The Association of Chief Police Officers of England, Wales and Northern Ireland (ACPO) was replaced in 2015 by the National Police Chiefs’ Council (NPCC).

[1]

[2] Monaghan, G. (14 November 2015) Going Rogue: Rethinking the "History" of Stop and Search, Criminal Law & Justice Weekly, Vol. 179, Issue 42, Lexis Nexis, London, pp. 834-835.

[2]

[3] Monaghan, G. (19 December 2015) Bum Boat Diplomacy: Stop and Search in Eighteenth-Century London, Criminal Law & Justice Weekly, Vol. 179, Issues 47/48, Lexis Nexis, London, pp. 935-936.

[3]

[4] Monaghan, G. (3 December 2016) Police Powers of Stop and Search in the Georgian Era Criminal Law & Justice Weekly, Vol. 180, Issue 46, Lexis Nexis, London, pp. 829-831.

[4]

[5] Monaghan, G. (18 June 2016) Searching for Stolen or Prohibited Articles under PACE: An Open-and-Shut Case? Criminal Law & Justice Weekly, Vol. 180, Issue 24, Lexis Nexis, London, pp. 427-428.

[5]

[6] Monaghan, G. (15 July 2017) Short Changed? Is There a Power to Stop and Search for Counterfeit Currency? Criminal Law & Justice Weekly, Vol. 181, Issue 27, Lexis Nexis, London, pp. 484-486.

[6]

[7] Monaghan, G. (10 August 2017) Retracing Our Steps: Some Anomalies and Irritants Under PACE – Part 1 Criminal Law & Justice Weekly, Vol. 181, Issue 30, Lexis Nexis, London, pp. 541-543.

[7]

[8] Monaghan, G. (12 August 2017) Retracing Our Steps: Some Anomalies and Irritants Under PACE – Part 2 Criminal Law & Justice Weekly, Vol. 181, Issue 31, Lexis Nexis, London, pp. 555-557.

[8]

[9] Monaghan, G. (2 September 2017) Retracing Our Steps: Some Anomalies and Irritants Under PACE – Part 3 Criminal Law & Justice Weekly, Vol. 181, Issue 32, Lexis Nexis, London, pp. 571-575.

[9]

[10] Monaghan, G. (16 December 2017) A Grey Area: Out-of-Court Disposals, s. 24 (5) PACE and art. 5 (1) (c) ECHR Criminal Law & Justice Weekly, Vol. 181, Issue 47, Lexis Nexis, London, pp. 884-887.

[10]

[11] Monaghan, G. (17 February 2018) Missing the Mark: Is Section 54A PACE 1984 Fit For Purpose? Criminal Law & Justice Weekly, Vol. 182, Issue 7, Lexis Nexis, London, pp. 114-116.

[11]

[12] Monaghan, G. (21 April 2018) The Other Side of Reason: ‘Protective Searches’ Under the Mental Health Act 1983 Criminal Law & Justice Weekly, Vol. 182, Issue 15, Lexis Nexis, London, pp. 264-268.

[12]

[13] See Paragraph 10 of Schedule 5 to the Terrorism Prevention and Investigation Measures Act 2011.

[14] See ss. 2 (1) (b) and 11 Protection of Badgers Act 1992.

[14]

[15] See ss. 4 and 12 of the Deer Act 1991.

[15]

[16] See s. 1 (3), (6), (7), and (8) of the Police and Criminal Evidence act 1984.

[16]

[17] See s. 2 Poaching Prevention Act 1862.

[18] See: Man jailed for taking upskirt photos using phone in McDonalds in Western Road, Brighton 13 February 2018, Andre Rhoden-Paul for The Argus

[18]

[18]

[19] See: Woman fights to change the law after being told the man who put camera up her skirt did nothing wrong 9 August 2018, Helena Horton for The Telegraph https://www.telegraph.co.uk/news/2017/08/09/woman-fights-upskirting-sexual-offense-told-men-put-camera-skirt/ (Accessed 7 July 2018).

[19]

[20] See: Bodybuilder, 36, who used his child as cover so he could secretly take ‘upskirt’ photos of women with his phone and a secret camera in his SHOE is jailed for 10 months 29 June 2017, Isobel Frodsham for Mail Online http://www.dailymail.co.uk/news/article-4650004/Bodybuilder-jailed-taking-upskirt-photographs.html (Accessed 7 July 2018).

[21] See ‘Upskirt’ pervert who filmed up shoppers’ skirts using spy cam jailed for three years 30 March 2018, Chris Riches for Daily Express https://www.express.co.uk/news/uk/939284/businessman-jailed-spy-camera-film-women-stafford-cant-alderley-edge (Accessed 7 July 2018).

[21]

[21]

[21]

[21]

[22] See s. 19 of the Wildlife and Countryside Act 1981 and Schedule 5.

[23] See s. 23 (2) of the Misuse of Drugs Act 1971 and Schedule 2, Part III.

 

Prepared 11th July 2018