R v Paolo Barone

For the voyeurism offence under section 67A(2) of the Sexual Offences Act 2003, recording an image ‘beneath the clothing’ includes looking up and through a person’s legs to private parts covered by clothing. The phrase is not limited to images taken from close to the floor. The requirement that the private parts ‘would not otherwise be visible’ is satisfied where the view was obtained only by deliberately positioning the offender and camera for that purpose. It is not defeated because a person sharing the same inclination might have manoeuvred into the same position, or because a limited view could be obtained from a particular angle.

The applicant was convicted in the Crown Court at St Albans of voyeurism contrary to section 67A(2) of the Sexual Offences Act 2003, after recording images of a sleeping woman on a train. He was sentenced to three months’ imprisonment, suspended for twelve months. His application for leave to appeal was referred to the full court by the Single Judge. The application challenged the trial judge’s interpretation of ‘beneath the clothing’ and of the requirement that the private parts would not otherwise be visible. The central issue was whether images obtained by positioning a camera to see through the victim’s legs fell within the statutory offence.

Disposition. The application for leave to appeal against conviction was dismissed.

1. Meaning of ‘beneath the clothing’. Under section 67A(2) of the Sexual Offences Act 2003, the phrase describes looking up a person’s legs towards private parts despite the fact that the relevant area is covered by clothing. The concept is not dependent on the skirt being short or long, and is not confined to photographs taken from a position close to the floor. The equivalent wording in section 67A(1) supported the same interpretation.
2. Meaning of ‘would not otherwise be visible’. The requirement asks whether the upskirting gave the offender a view of the private parts that would not otherwise have been available. It was satisfied because the applicant deliberately positioned himself and his camera so that he could see through and past the victim’s lower legs. The fact that another person might have adopted the same position did not mean that the private parts were generally visible or on display. Nor did the possibility of a limited view from a particular angle defeat the statutory requirement.
3. Application to the facts. The CCTV and photographs demonstrated that the applicant had deliberately manoeuvred himself to obtain a clearer and more extensive view. His conduct therefore fell squarely within the meaning and purpose of section 67A(2). The court considered hypothetical factual examples unhelpful because the statutory language was clear.

1. Court of Appeal (Criminal Division): The full court dismissed the application for leave to appeal against conviction.
2. Crown Court at St Albans: The applicant was convicted on 7 March 2024 and sentenced on 19 April 2024 to three months’ imprisonment, suspended for twelve months.