Defining "Beneath the Clothing": A Landmark Clarification of Upskirting Under Section 67A

Introduction

The case of Barone, R. v ([2025] EWCA Crim 125) represents a significant judicial intervention in the interpretation of offences relating to upskirting, as established under section 67A of the Sexual Offences Act 2003. The appeal concerns the conviction of Paolo Barone for voyeurism and upskirting following the recording of non-consensual images on a train. Central to the case is the interpretation of key statutory phrases such as “beneath the clothing” and “in circumstances where … would not otherwise be visible.” The parties involved include the appellant, Mr Barone, who challenges his conviction and the Crown whose case rested on the careful application of the statutory provisions. With the appeal being dismissed and detailed reasons provided, the Judgment offers a refined understanding of the law in this sensitive area.

Summary of the Judgment

The Court of Appeal confirmed the conviction, dismissing Mr Barone’s appeal. The judgment focused substantially on whether the images recorded by the defendant were taken “beneath the clothing” in such a way that the victim’s private parts “would not otherwise be visible.” The Court found that, even though the complainant was wearing a skirt and tights, her underwear remained covered under normal circumstances. It was only through the deliberate positioning of the defendant and his camera that the images showing her private parts were obtained. Emphasis was placed on the legislative intent behind section 67A, which criminalises the act of deliberately circumventing normal visibility of one’s private parts via upskirting. The Court rejected the appellant’s submission that the images had been taken in circumstances where the underwear was naturally visible. The reasoning was bolstered by illustrative hypothetical examples provided by the trial judge, thereby reinforcing the interpretation that the offence is not contingent on the victim’s mode of seating or attire under ordinary circumstances.

Analysis

Precedents Cited

Although the judgment does not heavily rely on a plethora of previous case law, it does reference important statutory modifications and prior legislative schemes. The court referred to the modifications brought by the Sexual Offences (Amendment) Act 1992 and the creation of the offence under the Voyeurism (Offences) Act 2019. These references are instrumental in anchoring the court’s understanding because:

The 2003 Act Framework: This provided the backdrop against which upskirting was initially criminalised.
The 2019 Act Amendments: The 2019 Act’s introduction of section 67A, which specifically targets the practice of upskirting, clarifies the intentionality behind obtaining an intrusive view where it would otherwise be impossible.

The Judgment also notes the absence of detailed explanatory memoranda accompanying the 2019 Act, thereby placing greater emphasis on a purposive approach to interpreting terms like “beneath the clothing” and “would not otherwise be visible.” This reliance on legislative context and purposive interpretation is a hallmark of contemporary judicial reasoning in the area.

Legal Reasoning

The Court’s reasoning rests on two pivotal elements in establishing the offence:

The Requirement to Record Images "Beneath the Clothing": The court clarified that “beneath” must not be read in a strictly physical or spatial sense (such as merely the proximity to the floor). Instead, it is to be understood in the context of intentionally evading normal exposure of a person’s private parts. This interpretation dismisses the argument that certain angles or extraneous circumstances (for instance, if the victim incidentally provided a visible view) should exonerate the defendant.
Visibility of Private Parts: Even though the complainant’s clothing might have shifted or revealed certain details, the statutory requirement focuses on the fact that under ordinary circumstances the private parts remain concealed. The court emphasized that if the complainant’s underwear “would not otherwise be visible,” then any deliberate manoeuvre by the defendant to capture images breaches the statutory framework. Notably, the judicial commentary rejected scenarios whereby normal movement or ordinary positions might inadvertently expose the victim.

In reaching its decision, the court applied a contextual interpretation to ensure that the legislative intent—protecting individuals from non-consensual invasions of privacy—remained paramount. The judicial opinion used hypothetical illustrations (e.g., a person walking up stairs or bending under a table) to reinforce that the offence cannot hinge on arbitrary variations in everyday circumstances.

Impact

This judgment sets an important precedent in the legal treatment of upskirting offences. By affirming a purposive construction of terms such as “beneath the clothing” and “would not otherwise be visible,” the Court of Appeal has:

Clarified the threshold for criminality: Future cases will likely reference this judgment to assess whether a defendant intentionally positioned himself to capture images that would not have been obtainable through ordinary observation.
Limited inadvertent defences: Those arguing that a victim’s attire or posture inadvertently exposes private parts now face a precedent that strictly requires the deliberate circumvention of normal clothing barriers.
Enhanced protection for victims: By focusing on legislative intent and the purpose behind the offence, the ruling reinforces the statutory commitment to preserving dignity and privacy.

The decision provides a robust interpretative framework that will guide lower courts in similar cases, ensuring consistency in the application of the law and offering clearer guidance to both legal practitioners and law enforcement agency personnel handling sensitive cases involving sexual privacy.

Complex Concepts Simplified

Several key legal concepts and terminologies used within the judgment have been clarified to facilitate broader understanding:

"Beneath the clothing": Rather than indicating a specific physical location (e.g., below the waist or near the floor), this phrase is interpreted to mean obtaining a view that is normally shielded by a person’s clothing. It underscores the notion of invasive intent.
"Would not otherwise be visible": This term emphasizes that the view or image captured by the defendant is not one that could be normally observed in everyday life. Even if a victim’s clothing might incidentally reveal aspects of their body under certain circumstances, such exposure is generally not sufficient to negate the offence if deliberate manoeuvring is required to capture the image.
Legislative purpose: Modern statutory interpretation often involves looking beyond the literal text to understand the broader societal and protective objectives. Here, the purpose is to safeguard an individual’s dignity and privacy by preventing non-consensual, intrusive photography.

Conclusion

The Barone judgment is a landmark decision that reinforces and clarifies the interpretation of upskirting offences under section 67A of the Sexual Offences Act 2003. By focusing on the phrases “beneath the clothing” and “in circumstances where the … would not otherwise be visible,” the court has provided a robust interpretative framework that both aligns with legislative intent and adapts to the complexities of modern public life. The decision serves as an essential precedent for future cases, ensuring that the law remains capable of protecting individuals’ privacy against deliberate invasions. Overall, this judgment not only affirms the conviction in the present case but also sets a clear and influential standard in addressing similar offences going forward.