Q. My brother-in-law has recently been accused of something called ‘upskirting’.
Initially I was not even aware that this existed, but over the last couple of weeks I have seen this mentioned in the news. Is this an offence in the UK? If so, what punishment could he face if convicted?
A. This is an interesting question, particularly since this specific offence has only recently been brought to the attention of the general public.
A number of high-profile individuals have raised awareness of this behaviour in relation to paparazzi taking low-angled photographs of celebrities exiting vehicles, for example.
Upskirting is essentially taking a photograph of a person underneath their clothing without their consent.
Upskirting is already an offence in Scotland, but there is still no specific offence in England and Wales.
New laws specifically against upskirting are currently being debated by Parliament.
Under existing law, the offence of upskirting does not actually exist, and won’t until it is made law by Parliament.
However, the offence could come under a number of other headings such as Outraging Public Decency, Public Order Act offences or Voyeurism, as a few examples.
These offences do not outlaw all instances of upskirting.
For example, offences under the existing law will consider whether an offence has occurred in a public place, whereas the new law is expected to ignore factors like this and deal with the action of taking the picture and the issue of consent.
Currently, if your brother-in-law was charged with an offence under existing law and convicted at court, there is very little guidance on what sentence he could expect to receive.
This would vary widely depending on the specific offence he was charged with, and how serious the court deemed the offence to be.
The new law proposes to make upskirting a specific criminal offence punishable by up to two years imprisonment.
A key difference which will be implemented under the new law is that upskirting will be made a sexual offence, which means that it is also likely that anyone convicted of upskirting would be subject to the Sexual Offenders Register and its requirements (e.g. informing the police of your home address and any changes to where you live, seeking the consent of parents/guardians before having contact with children).
If the new law comes into force it will not act retrospectively, this means that if an individual has already been accused of carrying out this act the police would need to pursue that matter under existing law.
If your brother-in-law is contacted by the police in relation to this incident, he should contact one of our criminal solicitors for further advice.
Ben Hoare Bell LLP has several experienced Criminal Defence solicitors who can advise you on issues such as this.
To speak to a solicitor please phone 0191 565 3112 or email firstname.lastname@example.org
Visit www.benhoarebell.co.uk for further information.