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16.12.24

Law on voyeurism clarified

In the recent case of R v Norkus [2024] EWCA Crim 1169, the Court of Appeal clarified what could and could not constitute a criminal offence in respect of voyeurism.

The facts

The complainant worked at a post office and shop which the Appellant managed. The Appellant had asked the complainant for her mobile phone in order to install an app relevant to the business. Her phone contained films of her performing sexual acts, for her and her partner’s benefit only. During the course of loading the app onto her phone, these films were copied onto the computer used in the business. The Appellant told the Complainant this and confirmed that the films had been removed. Later on, the Complainant used the work computer to charge her phone and the Appellant subsequently told her the films had been copied onto it again.

The Prosecution alleged that the Appellant had made comments about the films and showed them to others. The Appellant accepted the films had been downloaded onto the computer but denied showing them to others. He also denied viewing the films for his own sexual gratification. He was unable to explain how, later on, the films were found on his computer at home.

The Appellant was charged with voyeurism under section 67(1) of the Sexual Offences Act 2003.

The issue the jury had to consider was whether the applicant had viewed the films for the purposes of sexual gratification. It did not have to consider whether the films had been copied onto the computer incidentally or on purpose.

The question the Court of Appeal had to consider was whether the “observation” element of the offence has to be contemporaneous with the activity being observed.

The law

Voyeurism is defined in section 67 of the Sexual Offences Act 2003 as follows:

Voyeurism

(1) A person commits an offence if:

(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

(c)he knows that B does not consent to his recording the act with that 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).

The ruling

The Court of Appeal commented that the use of the word “observes” (referenced in subsection (1)) in normal English usage carries with it the notion of contemporaneous watching. They provided the example of a “patient observation” in a hospital, indicating at least a regular and immediate looking at them.

The difference in the wording between subsections (1) and (2) and subsection (3) is noticeable. Subsections (1) and (2) use the word “observe”, whereas subsection (3) uses the phrase “look at”. The Court concluded that the use of “look at” in subsection (3) clearly contemplates a later viewing of a contemporaneous recording, which is absent from subsections (1) and (2).

Further, the language used in section 67(2), (3) and (4) explicitly identifies activity whereby the offender obtains the private sexual views or images and not someone who comes across them by chance or accident later on.

The Court also drew reference to the Explanatory Notes to the statute, which gives examples of acts which could be considered an offence under section 67(1):”"for instance by looking through a window or peephole at someone having sexual intercourse, where A knows the person observed does not consent to being looked at for this purpose.” The Court commented that it is noticeable that the example given is one of contemporaneous watching.

The Court also reviewed the legislative history, which it considered was telling in this respect, as the original wording of section 67(1) read as follows:

 "Voyeurism

(1) A person (A) commits an offence if:

(a) For the purpose of obtaining sexual gratification, he observes another person (B) doing a private act or looks at a moving or still image of B doing such an act,

(b) he knows that B does not consent to being observed or (as the case may be) to the image being looked at, for his sexual gratification, and

(c) Where the image is of B doing such an act on an earlier occasion, he knows that, while doing the act, B did not consent to the act being recorded with a view to an image of the act becoming available for the sexual gratification of A, a class of persons to which A belongs, or persons generally

The Court decided that the only explanation for the amendment from the earlier form of wording is that:

  1. Parliament realised that if a later viewing of a recorded sexual act was to be caught by that subsection, it needed specific words beyond “observes” to acquire that meaning, and
  2. In removing the words that would have caught a later viewing, Parliament was intentionally limiting the subsection to a viewing contemporaneous to the sexual act being observed.

As such, the Court quashed the applicant’s conviction for voyeurism on the basis that the offence had not been made out on the particular facts. As the applicant’s viewing of the complainant’s films was not contemporaneous to them being made and he was not the one who recorded the films, section 67 did not apply to this act. The question of whether he had viewed the films for sexual gratification was therefore irrelevant.

Comment

It is clear, therefore, that on the Court of Appeal’s interpretation of the statute, subsequent viewing of another doing a private act will only be an offence if the recording was made for the recorder’s or another’s sexual gratification upon viewing the material (if he knows that the subject of the material does not consent). Subsequently viewing material that was originally created for another purpose will not constitute a criminal offence. Under section 67(1) of the Sexual Offences Act 2003, the viewing of the private act has to be contemporaneous with the act itself.

The Court accepted that this interpretation of the legislation did mean that some people who were guilty of “deplorable conduct” would escape criminal sanctions and those similarly wronged would be deprived of a remedy in the criminal law. However, it is for Parliament to extend the law into other deplorable areas of conduct, not the courts. Indeed, since the events in this particular case, Parliament has done just that, by virtue of section 66B of the Sexual Offences Act 2003, meaning if the applicant had shown the complainant’s films to others, he would now be guilty of a criminal offence. See our blog relating to these new offences here.

 

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Articles are intended as an introduction to the topic and do not constitute legal advice.