Covert Filming of Sexual Activity

In 2015 Emily Hunt reported to the police that she had been raped in a hotel room. She also informed them she had been filmed, naked and asleep, without her consent. Although Emily was automatically entitled to anonymity, she bravely waived that right to draw attention to her case. The Crown Prosecution Service (CPS) opted not to authorise any charge, either for rape or voyeurism. Emily maintained that any sexual activity was non-consensual but did not challenge the Crown Prosecution Service’s decision not to charge the man with rape.

A person commits the offence of voyeurism if:

• for the purpose of obtaining sexual gratification, he observes another person doing a private act, and
• he knows that person does not consent to being observed for his sexual gratification.

In Emily’s case, the defendant accepted he had filmed her “in case he wanted to masturbate at some point”, it was also conceded that there was evidence he had filmed her without her permission.

Under the victim’s right of review procedure, Emily contested the decision not to prosecute the man for voyeurism. The CPS upheld their original decision saying that a consensual sex act would involve a person observing your naked body and that the observation could extend to filming.

Emily applied for a judicial review of the Prosecutions decision, suggesting that errors of law were made.

More specifically, it was argued that the CPS incorrectly treated the question of whether Emily consented to the sex as being decisive on the question of whether she was doing a private act when she was subsequently filmed asleep and naked. The focus was wrongly on whether she had a reasonable expectation of privacy rather than whether her sleeping constituted her doing a private act. It was also argued that it was erroneous to say that non-consensual filming of a sleeping person when naked, is not really different, in terms of privacy, to being observed asleep when naked. The real issue was the correct approach to the phrase “doing a private act”.

The Court of Appeal has now ruled that anyone who films a partner, during sex, without their consent is committing the offence of voyeurism. This decision was made in the case of a defendant who filmed himself having sex with prostitutes. Tony Richards had argued that he was permitted to film them as a bedroom could not be considered a private place if he was lawfully present.

Richards appealed against his conviction on both charges of voyeurism. Unusually, Emily Hunt was given allowed to intervene in the hearing. She was permitted to put forward the submission that consent should be the primary concern in these cases. Richards argued that the issue could not be consent when the place where the offence was committed was shared with another individual. The test, according to Mr Richards, was whether the person had a reasonable expectation of privacy in such circumstances. Richards acknowledged that filming without consent was a “betrayal of trust” but did not accept that it was an illegal act.

On dismissing Mr Richard’s appeal, it was said “a defendant can be guilty of an offence of voyeurism even when he is a participant (in relation to having sex) … section 67 of the Act which protects individuals against the recording of any person involved in a private act is not limited to protecting the complainant from someone not present during the act.”

The Crown Prosecution Service subsequently confirmed that they would be re-examining their position in respect of Emily’s judicial review. A spokesperson said “what constitutes a ‘private act’ for the purposes of the offence of voyeurism had never been conclusively defined by a higher court” until the case of Richards.

It was later stated, by the Centre for Women’s Justice who supported Emily’s campaign, that the Crown Prosecution Service was no longer resisting the judicial review and revisit their decision not to prosecute.

How can we help?

Voyeurism is a serious offence that can result in the defendant having their case heard at either the Magistrates’ Court or the Crown Court and carries a maximum custodial sentence of 2 years imprisonment. A conviction can also lead to notification requirements under the Sexual Offences Act 2003 and restrictions on working with children or vulnerable adults. The consequences of a conviction for voyeurism can, therefore, be significant and far-reaching. If you need expert advice, then contact us and let us help. We can advise on a plea, defences and potential sentences in a broad range of circumstances.