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“Upskirting” – is a specific criminal offence necessary?

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The Ministry of Justice is "looking seriously" at making “upskirting” a specific criminal offence. The Justice Secretary David Gauke told MPs he was "sympathetic" to calls for further action, and is keen to ensure the law is "fit for purpose".

Upskirting is the name given taking a picture up someone's skirt without them knowing. There has been recent press stories that have highlighted the lacuna in the law in this area without ever really addressing why the current law does not specifically cover the behaviour.

Children as young as 10 have fallen victim to "upskirting" - the act of taking photographs under dresses/shirts without consent - according to new figures.

At the moment, upskirting is occasionally prosecuted under "outraging public decency". However, unless observed by a member of the public at the time of taking the image it is unlikely that a prosecution under this offence will succeed.

In some cases, defendants have been prosecuted for voyeurism instead. However, voyeurism requires an expectation of privacy whilst doing a private act under Section 67 of the Sexual Offences Act 2003. Accordingly, it is unlikely that a prosecution would succeed for the majority of the behaviour covered by upskirting.

There is a current campaign for legislation following the movement for clearer laws on image-based sex abuse - or revenge porn - which saw legislation come in to force in 2015 in response to what was suggested to be a legal grey area.

The first official figures come from a freedom of information request detailing upskirting incidents, which highlights many of the issues facing officers dealing with reports.

Fifteen of the 44 police forces included had records of upskirting allegations in the past two years, while 14 said there were no records and 15 did not respond.

Upskirting is not in itself a crime recognised by the law in England and Wales.

With the recent press interest in this area it is reasonable to assume that pressure will be applied to police to start to take reports of upskirting seriously. Should you find yourself accused of upskirting and in need expert defence solicitors who know the law and what the prosecution must actually prove please contact Rob Rode or any of the team at ABR Solicitors on 0333 600 9222.

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