Voyeurism – Covert Filming of Sexual Activity

In 2015 Emily Hunt complained to the police that she had been raped in a hotel room. She had also been filmed, naked and asleep, without her consent. Although she is entitled to anonymity, she waived that right to draw attention to her case. The Crown Prosecution Service did not authorise any charge, either for rape or voyeurism. Emily maintained that any sexual activity was not consensual but did not challenge the Prosecution 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 man 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 consent.

Under the victim’s right of review procedure, Emily challenged the decision not to prosecute the man for voyeurism. The Prosecution 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 decision, submitting that errors of law were made.

In particular, it was argued that the Crown Prosecution Service wrongly treated the question of whether Emily consented to the sex as being decisive of the question of whether she was doing a private act when she was subsequently filmed naked and asleep. The focus was wrongly on whether she had a reasonable expectation of privacy rather than whether she was doing a private act. It was also argued that it was wrong 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 permission is committing the offence of voyeurism. This decision was made in the case of a man who filmed himself having sex with prostitutes. Tony Richards had argued that he was allowed to film as a bedroom could not be a private place if he was lawfully present.

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

On dismissing the 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 reviewing 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 said, 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 would look again at the decision not to prosecute.