Voyeurism: Recording an Image Beneath Clothing (Section 67A Sexual Offences Act 2003)

Voyeurism: Recording an Image Beneath Clothing, commonly known as "upskirting", is an offence under s.67A Sexual Offences Act 2003, inserted by the Voyeurism (Offences) Act 2019. A person (A) commits the offence if A operates equipment beneath the clothing of another person (B) with the intention of enabling A or another person (C), for a purpose mentioned in s.67A(3), to observe B's genitals or buttocks (whether exposed or covered with underwear) or the underwear covering them, in circumstances where they would not otherwise be visible, without B's consent and without reasonably believing that B consents (s.67A(1)); or if A records an image beneath B's clothing of B's genitals or buttocks or the underwear covering them, in such circumstances, with the intention that A or C will look at the image for such a purpose, without B's consent and without reasonably believing that B consents (s.67A(2)). The purposes are obtaining sexual gratification (whether for A or C) and humiliating, alarming or distressing B (s.67A(3)). Subsections (2A) and (2B), inserted by the Police, Crime, Sentencing and Courts Act 2022, create parallel offences of operating equipment or recording an image to observe or capture B while B is breast-feeding a child. Maximum sentence: on summary conviction, imprisonment for a term not exceeding the general limit in a magistrates' court (12 months in the case of an offence triable either way, Sentencing Act 2020, s.224(1A)(b)), or a fine, or both; on conviction on indictment, imprisonment for a term not exceeding 2 years (s.67A(4)). For an offence committed before 2 May 2022 the summary limit is read as 6 months (s.67A(5)).

In practice

This is an either-way offence: it may be tried at the magistrates' court or the Crown Court. Mode of trial depends on the seriousness and the defendant's election. Officers should seize any device used immediately under s.19 PACE 1984 (power to seize items found on any premises). Digital forensic examination of the device is essential. Officers should be sensitive to the victim and offer referral to specialist support. Where the motive is sexual gratification (s.67A(3)(a)), notification requirements under Part 2 of the Sexual Offences Act 2003 may apply. The suspect must be cautioned in accordance with Code C PACE 1984 before any questions about the offence are put to them. Interviews must be audio-recorded (Code E) or, for indictable offences, may be visually recorded (Code F).