New offence of Voyeurism - Sexual Offences Bill 2003

New offence of Voyeurism - Sexual Offences Act 2003

Home Office Press release: SEXUAL OFFENCES BILL RECEIVES ROYAL ASSENT Reference: 319/2003 - Date: 21 Nov 2003 10:34

Does the wording of Sexual Offences Bill 2003 make the following illegal ?

The case of Esther Bull, winner of a Big Brother Winston Award in 1998, "a 19-year-old student who last year discovered that her landlord had placed a video camera behind a two-way mirror in her bathroom. Esther had been filmed secretly for nearly two years, but the lack of a privacy law meant that the perpetrator could only be prosecuted under the 'bad landlord' laws".
- Yes, but only if there is intent of sexual gratification.
Covert CCTV surveillance in toilets or changing rooms e.g. Princess Diana in the Fitness Gym
- Yes, but only if there is intent of sexual gratification
Domestic sex videos where the sex may have be consensual, but the covert filming of it may not be consented to by one of the parties involved
- Yes, but with the usual difficulties of proving consent after the fact
"upskirt voyeur" porn.
- No, although the background documents regard publishing to the Internet or a magazine as very serious, there is nothing in the legal wording of the Bill regarding this.
Web Cams on the internet.
- No, although the background documents regard publishing to the Internet or a magazine as very serious, there is nothing in the legal wording of the Bill regarding this.
2.4 GHz wireless X10 "nanny cameras", including pictures of children.
- No, although the background documents regard publishing to the Internet or a magazine as very serious, there is nothing in the legal wording of the Bill regarding this. Despite the non-existant security on such licence free radio transmissions, snooping on such X10 cameras remotely is also not addressed.
2.4 GHz Industrial Scientific Medical band wireless LAN professional CCTV cameras, which may include pictures of children.
- No, although the background documents regard publishing to the Internet or a magazine as very serious, there is nothing in the legal wording of the Bill regarding this. Despite the non-existant security on such licence free radio transmissions, snooping on such CCTV cameras remotely is also not addressed.
2.5G Multi Media SMS enabled and future 3G camera mobile phones
- No, although the background documents regard publishing to the Internet or a magazine as very serious, there is nothing in the legal wording of the Bill regarding this, especially for remote voyeurism in foreign countries.
Papparazzi photos of unclad celebrities in the UK.
- Yes, although there seems to be some weasel wording in the notes about Journalists. They themselves may claim no "sexual gratification" but surely the main purpose of selling such images is for such a purpose for other third parties
Papparazzi photos of unclad celebrities abroad.
- Yes, but only in countries with equivalent privacy or sexual offences laws.
Abuse of existing CCTV surveillance systems by the operators or others for voyeuristic purposes.
- Yes, and this would also seem to include third party installers of such equipment for the use of others.
Any CCTV surveillance of children by operators not cleared by the Criminal Records Bureau checks required for jobs with access to children.
- No, no protection in this Bill

In principle, we should support the Voyeurism clauses in this BIll, but, as written on the face of the Bill, there are several potential problems:

As with all Home Office Bills, there seems to be little appreciation of the current state of technology. The Voyeurism clauses only seem to apply to voyeuristic still or moving images, when almost all the technology which might be used for such purposes nowadays also includes audio recording facilities as well, which does not seem to be regulated.
Similarly, the Voyeuristic/Exposure possabilities of 2.5G and 3G mobile phones, 2.4GHz WiFi and other licence free Industrial, Scientific and Medical band CCTV cameras and internet video conferencing are not addressed. e.g. the offence is defined as one of "viewing", which, thanks to the technology could be happening remotely, perhaps even in a country outside of UK jurisdiction, rather than the actual spying on/recording/photgraphing invasion of privacy occuring here
Perhaps the Mobile Phone Camera recording of an alleged rape in Brighton might fall under this Voyeurism offence.
Surely the only exception to covert CCTV surveillance of people in toilets, changing rooms, bedrooms or private sunbathing areas should be as part of a serious criminal investigation, properly authorised by a Chief Constable or equivalent under the Regulation of Investigatory Powers Act ? Even these powers should not be available when the investigation has no bearing on sexual crimes, e.g. tax evasion which is covered by RIPA.
Astonishingly, it looks as if "intrusive surveillance" of people defecating, urinating or undressing in a lavatory etc is not an offence, provided that there is no "sexual gratification". Since it is only a small minority of people who will admit to obtaining "sexual gratification" from such images, the wording on the face of the Bill seems to be ineffective where cameras etc have been installed ostensibly "for security" purposes.
The use of the politically correct term "a person" is going to lead to some interesting prosecucions where men's (rather than women's) breasts, or even string vests ("underwear") are filmed or observed.
As seems to be usual with Home Office legislation, the use of all encompassing language such as "Observation means any observation, whether direct or by looking at an image produced in any way" covers a huge range of situations and is far too general a definition, which must entrap the unwary or the innocent.
The planned new deployment of formerly miltary Passive Millimetre Wave Radar cameras by the Metropolitan Police could well be in violation of the Sexual Offences Bill as these can literally "see under your clothing" . This will be especially risky when it comes to scanning Children in airport queues etc. - these could constitute "obscene child porn images".

As with all the other new Sexual Offences, the "offence of Voyeurism" is unlikely to have any effect unless there is sufficient money and technical resources available to enforce it.

There may be a few cases involving CCTV surveillance abuse which will fall under the Voyeurism provisions of the Sexual Offences Bill 2003, but it is not a substitute for a proper Privacy Act. Nevertheless, all the existing CCTV Voluntary Codes of Practice should be amended to reflect this offence of Voyeurism, and the possible penalties of up to 2 years in jail, and being placed on the Sexual Offenders Register, for both the Voyeurs themselves, and for those who install/facilitate the technical means for such Voyeurism.

Given the deliberately voyeuristic marketing of Multi Media Messaging and 3G Video phones, and their reliance on "Adult Services" as part of their revenue model, a case could be made for prosecuting the the manufacturers and mobile telephone network operators since they undoubtedly "operate equipment with the intention of enabling another person to observe". This could even apply to "voyeur cams" or pornography streamed from overseas to the UK or vice versa.

Home Office Sexual Offences Bill homepage

After passing the the House of Lords, clause 69 the Voyeurism offence and clause 70 Voyeurism: interpretation are essentially the same as when the Bill was originally published. full text of the Sexual Offences Bill 2003 was published on 28th January 2003, but only now in September 2003, does there seem to be much press and media interest in it.

Latest version of the Voyeurism clauses

68 Voyeurism

(1) A person commits an offence if—

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

(a) for the purpose of obtaining sexual gratification, he observes another

person doing a private act, and

(b) he knows that the other person does not consent to being observed for

his sexual gratification.

(2) A person commits an offence if—

(a) he operates equipment with the intention of enabling another person to

observe, for the purpose of obtaining sexual gratification, a third

person (B) doing a private act, and

(b) he knows that B does not consent to his operating equipment with that

intention.

(3) A person commits an offence if—

(a) he records another person (B) doing a private act,

(b) he does so with the intention that he or a third person will, for the

purpose of obtaining sexual gratification, look at an image of B doing

the act, and

intention.

(4) A person commits an offence if he instals equipment, or constructs or adapts a

structure or part of a structure, with the intention of enabling himself or

another person to commit an offence under subsection (1).

(5) A person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6

months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding

2 years.

69 Voyeurism: interpretation

(1) For the purposes of section 68, a person is doing a private act if the person is in

a structure which, in the circumstances, would reasonably be expected to

provide privacy, and—

(a) the person’s genitals, buttocks or breasts are exposed or covered only

with underwear,

(b) the person is using a lavatory, or

public.

(2) In section 68 and this section, “structure” includes a tent, vehicle or vessel or

other temporary or movable structure.

http://www.protectingthepublic.homeoffice.gov.uk/ptp.pdf - White Paper

"78
We will introduce a new offence of Voyeurism to cover cases where a person is secretly observed where he or she had a reasonable expectation of privacy. This offence will apply where the voyeur intended to observe such acts for their own sexual gratification or that of others. It will cover cases where, for example, a peephole or camera is secretly installed. This offence will carry a maximum penalty of two years imprisonment. We would want cases where a photographer takes indecent photographs of someone without their consent and for example posts them on the Internet or in a pornographic magazine to be treated particularly seriously by the courts."

According to the Government resonse to consultation:

"RECOMMENDATION 55

55: There should be an offence of voyeurism where a person in the interior of a building or other structure has a reasonable expectation of privacy and is observed without their knowledge or consent, whether by remote or mechanical means or not. There should be an exception for authorised surveillance."

"Government Response

Agree the recommendation.

We intend to criminalise the covert observation, whether by remote, mechanical or manual means, of another person or persons performing acts of a sexual and/or intimate nature without his or her consent in circumstances where he or she has a reasonable expectation of privacy. The offence will apply where the person carried out the covert observation for his or her own sexual gratification or for the sexual gratification of others. This offence will not interfere with or hinder the legitimate operations of the press."

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Revised: May 2004