Upskirting, is now defined as ‘…the practice of taking a photograph up a person’s skirt or clothes without their consent.’
Following a public outcry the Justice Secretary, David Gauke, stated he was “sympathetic” to those who were calling for action against individuals perpetrating upskirting and vowed to carry out a review into the then existing law to “make it fit for purpose”.
That law is now in place, to protect women from upskirting. Those who commit these offences will be punished by the criminal justice system. However, the criminal justice system will not, necessarily, provide complete redress for the woman who has been violated by such an act. It is likely they will have suffered psychological harm, anxiety and upset as a consequence of such actions, perhaps made worse if their offender forced them to give evidence at the criminal trial. Fortunately, it may be possible to bring a claim for financial compensation for psychological harm, anxiety and upset caused by upskirting, as well as a loss of earnings claim, if the victim of upskirting was not able to work following the offence.
What did the law state around upskirting?
Mr Gauke said, at the time, "There are offences in place where people have successfully been prosecuted for upskirting, in terms of outraging public decency, and also voyeurism can also apply under the Sexual Offences Act. But I think there is a case to say these offences don't necessarily cover every incidence of upskirting and that is why there is a strong case for looking at the law and whether we need to change it”.
The law had focused on the public nuisance elements of such behaviours (using the old common law of ‘outraging public decency’), rather than being a sexual offence perpetrated on a victim. Interestingly, upskirting was already deemed a sexual offence in Scotland, under the Sexual Offences (Scotland) Act 2009.
Unfortunately, the voyeurism laws, which were introduced to deal with ‘peeping toms’ who spied on people in private, for sexual gratification, could not be used to deal with upskirting as such incidents occurred mainly in public settings, and therefore voyeurism laws would not apply.
One example of the confusion caused by the inconsistency of the law was the case of Police Service for Northern Ireland v MacRitchie  NICA 26,  NI 84. The accused, Richie McRitchie, had secretly placed a camera (which was set to record video) in an adjacent cubicle in a public changing room. The camera captured four clips of an 18-year-old female wearing a bikini. In the initial proceedings, the judge stated there was “no case to answer”, and ‘swimwear’ was not ‘underwear’. When the case later when to the Court of Appeal, the judges ordered prosecution on the basis of new charges of voyeurism. Mr MacRitchie’s defence argued for leniency on the basis that what had happened was not premeditated, but opportunistic. District Judge Fiona Bagnall sentenced Mr MacRitchie to four months in prison, suspended for two years, and he was placed on the Sex Offenders’ Register for seven years.
Campaigning for change
Gina Martin, who herself was the victim of upskirting, had vehemently campaigned for a change in the law to make upskirting a criminal offence.
In Ms Martin’s case, she was attending a music festival in London’s Hyde Park in summer 2017. She was with her sister at the time, waiting for the main performance by mega-band ‘The Killers’. Two males who were nearby offered the sisters some chips. They were behaving in a ‘creepy’ manner. During a period of uncomfortable interactions, one of the men rubbed up against her – which is when she suspects the photo was taken. All she knew was that at some point, he had put his camera up her skirt, and had taken pictures. Initially unaware of what had happened, Ms Martin proceeded to enjoy the festivities. It was only when she observed one of the men looking at his phone and laughing, she was able to see a picture of a “crotch covered by a thin strip of underwear”.
“Even though it was a small picture, I knew it was me straight away”, she said.
An aggressive scuffle ensued as Ms Martin snatched the camera – and the man boasted about what he had done. Despite the intervention of the security guards, she was forced to return the camera to the perpetrator. When the police arrived, they reviewed the evidence and stated, "Unfortunately, I've had to look at the picture. It shows more than you'd like… but it's not graphic. So, there's not much we can do because you can't see anything bad. I'm going to be honest - you might not hear much from us."
Following her ordeal, Ms Martin took to social media to try to shame the men who had caused her so much anguish (as she had found a photo with them in the background. As a result of this post she garnered a large number of responses – supportive, (although some less so). This gave her the confidence and fortitude to start a petition for a change in the law, which garnered nearly all of the 100,000 signatures she was seeking.
As a result, Liberal Democrat MP Wera Hobhouse put a private members' bill to the Commons for an Upskirting offence. Unfortunately, it was initially blocked by Conservative MP Sir Christopher Chope, who later also blocked a bill seeking to address FGM. Ms Martin said of his objection "it took the campaign stratospheric" and the objection "made people even more angry than they were already". PM Theresa May backed the campaign and shortly after the Voyeurism (Offences) (No. 2) Bill was put before Parliament.
On 12 February 2019 the Bill passed its final stage in the House of Lords receiving Royal Assent and from April 2019 finally, as a result of the campaign efforts Upskirting is a criminal offence, punishable with up to 2 years imprisonment.
Ms Martin’s reaction to the news, on the petition’s website, stated, "It has been a long time coming but we are finally protected in every scenario - as we should always have been."
By September 2019 there had already been four convictions under the new law. In September 2019 Daren Timson-Hunt became the fourth man to be convicted and was handed down a 24 month community service order, following his admission of taking photographs up a woman’s skirt on the London Underground on the 1 July 2019. The lawyer was sanctioned by the Bar Disciplinary Tribunal in December 2020, when it decided to suspend him from the legal profession for 6 months.
In the judgment,, tribunal chairman Alan Greenwood said: "The offence committed was a serious one if relatively new. It involves filming. It was not touching but nevertheless it was serious.
"However, in the meaning of the sanctions guidance it is not a serious sexual offence.
"He provided glowing references. It is clear that at the time he was working very hard. He was working on the goodsrelated aspects of Brexit and told the tribunal it was not uncommon to work 80 hours per week.
"His wife was ill. He was subject to domestic pressures. This is how he came to commit the offences and in doing so jeopardised his career. He lost his job."
Gina Martin’s response was to express her dissatisfaction with the outcome of the hearing. She, said: "I am so disheartened that a man who took photos of someone's crotch for sexual gratification without them knowing is allowed back into such a powerful position.
"Daren Timson-Hunt is now on the sex offenders register and yet has not been disbarred. What does that say about justice?"
"Alan Greenwood's quote is worrying too. 'Upskirting is not a serious sexual offence' is irresponsible rhetoric to be promoting.
"The fact that half of this statement focuses on rebuilding his character, not the sexual offence, is a plain example of how we excuse men for this behaviour."
In April 2020 the Guardian reported that figures from the Crown Prosecution Service show that 16 men have been convicted of 48 offences since April 2019. They also reported that the vast majority of those offences (33) occurred in supermarkets and shops, with 9 on public transport, 5 in the street and 1 in a school.
The emotional trauma of upskirting
The victims of upskirting often suffer feelings of humiliation, helplessness, and violation, which can lead to depression and anxiety. And unfortunately, due in large part to social media, many victims become subject to abuse and trolling. The effects of this should not be underestimated.
In Gina Martin’s own words, “For seven days I was being trolled and receiving awful messages. At one point I became a meme - teenagers tagged themselves in my post with phrases like "Viva la upskirters!" and crying-laughing emojis. Their friends replied with "Lol. Slag." I struggled to sleep, from the attention and stress, and I lost my appetite. I don't think you really know how victim-blaming affects you until you've been there. It's awful”.
In the age of the ubiquitous mobile phone and cheap covert video camera technology, upskirting is easy for potential perpetrators. Given the recent media coverage and the new law, hopefully, this legislation will prove fit for purpose. However, if you have been the victim of upskirting speak to a specialist solicitor who will listen to your case and help you to access justice and claim compensation.
Our personal injury team, led by Malcolm Underhill, has the expertise and knowledge to advise and represent you if you wish to claim compensation for personal injury. To talk about how we might be able to help, please phone us on 0333 123 9099, email us at firstname.lastname@example.org or fill in our contact form. Any discussions you have with us will be in the strictest of confidence and handled with the utmost sensitivity.