15th September 2017

“Upskirting” is the act of taking pictures underneath an individual’s clothing without their consent. It is not currently classified as a crime in England and Wales.

However, over 60,000 people have signed a petition calling on parliament to make this a criminal offence. This came in light of a 25 year old woman named Gina Martin setting up the petition after she caught a man taking pictures up her skirt at a music concert in Hyde Park. As soon as Ms Martin noticed the image on the man’s phone, she grabbed it and presented it to the police however No Further Action was subsequently taken in light of officers apparently being unable to categorize the man’s actions as a criminal offence.

The only laws currently in place which have the potential to convict such an offender is the criminal offence of “outraging public decency” and the “voyeurism” provisions found under section 67 of the Sexual Offences Act 2003.

Outraging Public Decency is a common law offence that prohibits any behaviour committed in public which members of the public would consider to be lewd, obscene or of a disgusting nature. The offence functions on a similar basis to flashing. As with flashing, many would consider the act of filming up skirts to be a lewd act that should not take place in public. Under section 67 of the Sexual Offences Act 2003, Upskirting occurring in a private context such as the inside of a dressing room or an individual’s house could be illegal. However this would not be illegal if, as in Ms Martin’s case, the act occurred in a public place such as a festival.

Whilst there is scope within the current criminal law to deal with such incidents it is limited and there is no law in place which is designed specifically to tackle the issue of Upskirting. The current position is therefore not ideal if the behaviour doesn’t fit within those particular provisions. Justice Secretary, David Lidington, has responded to Ms Miller’s petition by informing MPs that he is taking the issue “very seriously” and is considering making it a criminal act by incorporating it in to the Sexual Offences Act 2003.

Other jurisdictions such as the state of Massachusetts in the US have already adopted a law which bans “the secret photographing, videotaping, or electronically surveiling of another person’s sexual or other intimate parts, whether under or around a person’s clothing”. The crime is punishable by up to 2½ years in jail or a fine of up to $5,000.