Upskirting ~ objection to a Private Members' Bill

The Voyeurism (Offences) Bill  is a Private Members' Bill aimed at the unpleasant and upsetting practice of "Upskirting" which typically involves offenders using a mobile phone to take a picture under a person’s clothing without them knowing, with the intention of viewing their genitals or buttocks.

It appears from this announcement  that the bill is supported by the government but, on 15th June - (one of the Fridays set aside for Private Members' Bills) -it made no progress because it was blocked when Sir Christopher Chope MP (Conservative, Christchurch) objected - BBC News 15th June.  The Bill is now listed for 2nd Reading on 6th July.  



English law has a statutory offence of "Voyeurism" - Sexual Offences Act 2003 section 67 and the Private Members Bill would have added a section 67A to the Act to deal specifically with upskirting.  Scots criminal already has such an offence in the Sexual Offences (Scotland) Act 2009 section 9.


Currently, some instances of upskirting have been successfully prosecuted under the offence of Outraging Public Decency - see the Law Commission report on that offence.  However, there have been concerns that not all instances of ‘upskirting’ are covered by existing criminal law.

The government appears to be determined to make the necessary change to the law.  In doing so they might do well to follow the drafting of the law in Scotland rather than the drafting in the Private Members' Bill.  It also seems necessary to ensure that the new offence is one attracting the "Notification Requirements" set out in the Sexual Offences Act 2003 - see section 80 and Schedule 3.   A further point is that the maximum sentences appear to be high.  In what circumstances could 2 years imprisonment be justified?

Outraging Public Decency:

Outraging public decency is a common law offence, and was formerly regarded as one form of public nuisance. The offence can consist of any act or display fulfilling the following conditions:

(1) it must be lewd, obscene or disgusting to such an extent as to outrage minimum standards of public decency as judged by the jury (or other tribunal of fact) in contemporary society;

(2) it must occur in a place which is accessible to or within view of the public; and

(3) two or more persons must be present during the act or display, whether or not they are aware of the act or display or are outraged by it.

The types of conduct that have been held to constitute outraging public decency are wide ranging. These include: indecent exposure, masturbating or other sexual activities (real or simulated) in public, publishing a magazine with contact advertisements for gay men, intimate filming of women without their consent, exhibiting a sculpture consisting of a human head with freeze-dried human foetuses as earrings, nude bathing in inhabited areas, disinterring a corpse for dissection, indecent pay-per-view exhibitions, exhibiting a picture of sores, procuring girls to be prostitutes and urinating on a war memorial.  Several of them may not amount to this offence as it is now interpreted.

Some cases on this offence are:  Hamilton [2007] EWCA Crim 2062 and Rose v DPP [2006] EWHC 852 (Admin).

The Law Commission recommended that the offence of outraging public decency be abolished and replaced by a statutory offence. 

The events of 15th June:

15th June was one of the Fridays in the year when the House of Commons looks at Private Members' Bills.

One Bill was debated - the Mental Health Units (Use of Force) Bill - and the debate may be read HERE.  The Conservative MP for Shipley (Mr Philip Davies MP) spoke for so long that the Bill did not receive its 3rd Reading and it will return on 6th July for further consideration - see i News.

The result was that the time was reached after which a Private Members' Bill may not proceed if a single member objects.  As already noted, Sir Christopher Chope objected to the Voyeurism Bill and so it could not proceed on the day.  No reasons were offered for his objection - he merely said "Object" which suffices according to House of Commons procedure.

Several other Private Members' Bills were also deferred - see Hansard Online Business Without Debate 15th June. 

Private Members' Bills:

A member of either House of Parliament may sponsor a Private Members' Bill.  In practice, for various reasons, very few of these bills become law.  For more details see these links:

Private Members' Bills

Private Members' Bills Procedure

The procedure document notes that - "At 2.30 pm on a Friday the Clerk reads out the titles of bills which are on the Order Paper, in the order in which they have been put down for that day. If any Member shouts object when the title of a bill is read then no further progress is made."

and

"If the bill is objected to, the Member in charge of the bill, or another member on their behalf, may nominate another Friday and seek to persuade those who objected not to repeat their action."

Sir Christopher Chope has proposed 47 private member’s’ bills of his own but he has a track record of objecting to Bills brought forward by others - see The Independent

His objection on this occasion has been described as disgraceful by many MPs including several within his own party.

Reform:

The House of Commons Procedure Committee has put foward proposals for reform of Private Members' Bill procedure.

Procedure Committee Report 2016-17 and government response - Private Members' Bills Inquiry


The 2016-17 report builds on a similar report in 2013.  The committee's recommendations are HERE.

Mr Christopher Chope (as he then was) and Mr Philip Davies gave evidence to the committee when the subject was under consideration prior to the 2013 report - see Wednesday 19 December 2012: Mr Christopher Chope MP, Philip Davies MP and Rebecca Harris MP.   Mr Davies gave evidence prior to the second report.

Overall the various reforms suggested appear to be relatively modest - e.g. renaming these bill as "Backbench Bills" - but even these have not been implemented.  Reform seeems to move at a glacial pace.