Richards, R. v

For the offence under section 67(3) of the Sexual Offences Act 2003, the recorder need not be a stranger to the private act. A participant in consensual sexual activity may commit voyeurism by covertly recording the other participant for later sexual viewing, knowing that the recording is not consented to.

Whether an act is private under section 68(1) depends on the place and all the circumstances. Privacy is relative to the kind of observation or recording in issue. A person may therefore have a reasonable expectation that intimate activity in a bedroom will not be secretly recorded or available for later viewing, despite the lawful presence of the other participant.

The appellant was convicted in the Crown Court at Cardiff of two offences of voyeurism after covert videos of sexual intercourse with two women were found on his telephone. He accepted that the recordings were for sexual gratification, but maintained that both women had consented to filming.

At trial, the judge rejected a submission that a participant in the sexual activity could not commit an offence under section 67(3) of the Sexual Offences Act 2003. The jury was left to decide consent and whether the sexual acts were private. On appeal, the appellant contended that the women could have no relevant privacy from him because he was consensually present and participating. The central issue was whether section 67(3) extends to covert recording by a participant in the act.

1. Appeal dismissed. The trial judge correctly left both voyeurism counts to the jury. There was no substantive challenge to the summing-up or to any other aspect of the trial.
2. Section 67(3) of the Sexual Offences Act 2003 criminalises recording another person doing a private act where the recorder intends that an image will be viewed for sexual gratification and knows that the other person does not consent to recording with that intention. Its language does not limit the offence to a recorder who was absent from, or a non-participant in, the act.
3. Under section 68(1), the question whether a person is doing a private act is contextual. It requires consideration of the place and circumstances, including the nature of the observation or recording from which privacy is reasonably expected. Privacy is not defeated merely because another person is lawfully present during the activity.
4. The court applied the approach in R v Bassett [2008] EWCA Crim. 1174. A reasonable expectation of privacy may exist even where others are present, but its scope depends on the relevant kind of observation. Consensual intercourse between two people in a bedroom was capable of being a private act in relation to covert filming by one participant, since the other participant could reasonably expect that the activity would not be recorded and available for later viewing.
5. The appellant's participation in the intercourse therefore did not reduce the complainants' reasonable expectation of privacy for the purpose of secret recording. The suggested requirement that the place must provide privacy from the recorder himself had no express or implied basis in section 67(3). On the evidence, the jury could determine both privacy and consent.

• Court of Appeal (Criminal Division): The appellant's challenge to his voyeurism convictions was dismissed: [2020] EWCA Crim 95.
• Crown Court at Cardiff: The appellant was convicted by a jury of two counts of voyeurism on 15 July 2019 and sentenced on 2 August 2019.