Voyeurism (Offences) (No.2) Bill

Written evidence submitted by Ryan Whelan (VOB05)

I represent Miss Gina Martin in connection with her campaign to make upskirting a specific criminal offence under the law of England and Wales. Please accept my apologies for being unable to take up the kind invitation to give oral evidence. Prior commitments made it impossible to be with you yesterday.

By way of background, I worked with the Ministry of Justice in developing what is now known as the Voyeurism (Offences) (No. 2) Bill ("Bill"). My position on the Bill can be stated succinctly: I am familiar with the Bill's terms and I commend the Bill to the Committee as a proportionate and workable way of closing the current gap in the law.

The Bill includes provision for a motive requirement. That acts as a threshold for conviction. I understand that an amendment lodged to the Bill proposes that the motive requirement should be deleted and replaced (in cases where the defendant "records an image") with a provision making it a defence for the defendant to prove that he did not intend to record an upskirting image. There may be room for debate about whether the motive requirement is appropriately formulated but in my view it would be - at best - inappropriate to define a serious sexual offence in a way that required the defendant to prove that he is innocent, rather than for the prosecution to prove that he is guilty.

The point has also been made that the motive requirement should be extended beyond sexual gratification, humiliation, distress and alarm. Three examples have been given to justify such an amendment. These are that the Bill as drafted does not cover those who upskirt for financial gain, to have "a laugh" or exert power. However, most if not all of these cases can be caught by the Bill as it stands. There is no requirement that the prohibited motive be the only motive and the offender who acts to humiliate, distress or alarm the victim is not somehow given a defence because he does those things for financial gain, a laugh or to exert power. Similarly, in terms of sexual gratification, the offender – for instance the individual who is paid to hold their camera low in order to take a photo up the skirt of a celebrity - need not be acting for their own sexual gratification; offenders who are acting for the sexual gratification of a third party may commit the offence. These points should not be overlooked in considering the detail and adequacy of the Bill.

Enclosed for your information is an article that I recently co-authored with Professor James Chalmers, Regius Professor of Law at The University of Glasgow. I trust and hope that it will be of interest to you. [1]

Yours faithfully,

Ryan Whelan

11 July 2018

[1] Politics.co.uk, Upskirting: Bill salvaged by government at extraordinary speed as critics dismissed, By James Chalmers and Ryan Whelan, 10 July 2018 (last accessed on 11 July 2018)


Prepared 12th July 2018