Upskirting Offences – The Legal Challenges 5 Years On.

The Legal Challenges Facing Charges of Upskirting Offences

The criminalisation of upskirting in the UK marked a pivotal step in addressing invasive and degrading behaviours that disproportionately target women and undermine personal privacy.

Introduced in 2019 as part of the Voyeurism (Offences) Act, upskirting is defined as the act of taking photographs or videos under a person’s clothing without their consent, intending to cause distress, humiliation, or for sexual gratification.

While this law has been celebrated for closing a critical gap in the justice system, it also presents a range of challenges for criminal defence solicitors tasked with representing individuals accused of such offences.

This article explores the key legal intricacies surrounding upskirting cases and the defence strategies that may arise.

The Law on Upskirting: An Overview

Under the Voyeurism (Offences) Act 2019, upskirting was made a specific offence in England and Wales, punishable by up to two years’ imprisonment. Upskirting may also result in the offender being placed on the Sex Offenders Register, depending on the nature of the offence.

The law categorises upskirting as an act that meets one or more of the following criteria:

1. For sexual gratification: The perpetrator derives sexual pleasure from capturing the images.
2. To cause humiliation, distress, or alarm: The intent is to embarrass or degrade the victim.

The prosecution must establish both the intent of the accused and the absence of consent from the victim. This is where complexities often arise for criminal defence teams.

Key Legal Challenges for Defence Solicitors

1. Establishing Intent

The question of intent is central to upskirting cases. Proving whether the accused acted with the specific aim of sexual gratification or to cause distress can be subjective and challenging for the prosecution.

Defence solicitors may explore alternative explanations for their client’s actions. For example, accidental or incidental behaviour—such as using a camera phone for legitimate purposes—can be presented as a defence if there is no evidence of malicious intent.

2. Evidence Admissibility

The prosecution’s case often hinges on photographic or video evidence, as well as testimony from the victim. Defence teams can challenge:

• The authenticity of the images: Questioning whether the images have been tampered with or whether the defendant was the individual who captured them.
• The chain of custody: Arguing that evidence may have been mishandled or improperly secured, rendering it inadmissible.
• The context of the images: Investigating whether the images were taken under circumstances that could be misconstrued.

3. Balancing Privacy and Fair Trial Rights

Defence solicitors may encounter ethical dilemmas when dealing with upskirting cases. While it is essential to rigorously defend the accused, solicitors must ensure that their defence strategy does not exacerbate the victim’s trauma or humiliation. For instance, cross-examining a victim must be conducted sensitively to avoid revictimisation.

4. Social Media and Public Perception

Given the high-profile nature of some upskirting cases, the role of social media and public opinion cannot be ignored. Solicitors may need to navigate a client’s case amid a climate of heightened scrutiny, which can influence jury attitudes. A strong emphasis on the presumption of innocence is vital in such scenarios.

Defence Strategies in Upskirting Cases

1. Lack of Intent: Demonstrating that the act was unintentional, such as accidental activation of a recording device.
2. Mistaken Identity: If the accused denies involvement, solicitors may argue that the evidence does not conclusively prove their client’s identity.
3. Technical Defence: Questioning whether the act meets the legal definition of upskirting, such as whether the victim’s clothing was “under” or if there was indeed no consent.

Ethical and Societal Considerations

The introduction of the Voyeurism (Offences) Act reflects society’s growing recognition of the importance of privacy and dignity. Defence teams must navigate these cases with an awareness of the broader societal implications, particularly in defending actions that may evoke strong emotional reactions.

Upskirting offences also highlight the importance of educating the public about consent and respect. Many perpetrators may not initially perceive their actions as criminal, underscoring the role of the law in shifting cultural attitudes and behaviours.

Conclusion

Upskirting cases represent a significant intersection of privacy, consent, and criminal law. For defence solicitors, these cases demand a nuanced understanding of the legislation and the ability to balance robust defence strategies with sensitivity to the victim’s experience.

As awareness grows and legislative frameworks evolve, the role of criminal defence teams in ensuring fair trials remains pivotal—not only in safeguarding the rights of the accused but also in contributing to a justice system that upholds the dignity of all individuals.

Get in Touch

If you have any questions or concerns regarding upskirting offences or anything else regarding the legal representation of sexually-related offences, please feel free to contact us on 0161 477 1121 or email us for more information.