Bassett, R. v

For voyeurism under section 67 of the Sexual Offences Act 2003, whether a person is doing a private act depends on the statutory definition in section 68. A reasonable expectation of privacy is assessed against the nature of the observation, not merely the observer’s sexual purpose. A person in a shared changing room normally has no such expectation against casual observation by other users, but may have it against spying or sustained watching.

In section 68(1)(a), “breasts” means female breasts. It does not include an exposed male chest. The statutory term identifies body parts for which privacy is conventionally expected.

The appellant concealed a video camera in a bag and took it into a public swimming-pool men’s changing room. He was seen watching, and apparently filming or intending to film, a man showering while wearing swimming trunks and washing his young daughter’s hair.

He was charged with observing that man for sexual gratification, contrary to section 67(1) of the Sexual Offences Act 2003. The trial judge ruled that the shower user had a reasonable expectation of privacy and that the reference to “breasts” in section 68(1)(a) included a male chest. The appellant challenged both rulings. The central issue was whether the observed man was doing a private act within section 68.

1. Appeal allowed; conviction quashed. The judge erred in directing that “breasts” in section 68(1)(a) of the Sexual Offences Act 2003 included the exposed chest of a man. On the facts charged, that error meant that the statutory requirement of a private act was not established.

2. A reasonable expectation of privacy does not require complete enclosure. The Court agreed with the trial judge that the absence of a shower door was not conclusive. As illustrated by Swyer [2007] EWCA Crim. 204, a person may reasonably expect privacy despite a possibility of being seen.

3. The relevant inquiry is privacy from the kind of observation that occurred. Users of an ordinary communal changing room expect incidental and casual sight by other users. They do not necessarily expect privacy from purposeful spying, such as observation through a hole in a wall. Sexual gratification is not itself decisive: it is the nature of the observation, rather than its purpose, that may make privacy reasonably expected. The question is ordinarily for the jury on the particular circumstances.

4. Section 68 must be read with section 67. Its listed body parts and functions identify matters for which people conventionally expect privacy. In that context, “breasts” denotes female breasts, not the male chest. The plural wording and the limited analogy with section 1(1)(a) supported that construction. The Court did not need to decide whether the privacy-direction error alone rendered the conviction unsafe.

• Court of Appeal (Criminal Division) Allowed the appeal and quashed the conviction.
• Trial court The appellant was convicted of voyeurism after the judge ruled that the shower user was doing a private act and that section 68(1)(a) extended to the exposed male chest.