Police Service for Northern Ireland v MacRitchie

Factual and Procedural Background

This opinion concerns an appeal by way of case stated from a decision of a resident magistrate granting a direction of no case to answer at a Magistrates’ Court in relation to a charge of voyeurism under section 67 of the Sexual Offences Act 2003. The defendant was charged with recording a complainant in a changing room at a leisure centre using a mobile phone camera. The defendant inserted his phone under the gap of an adjoining cubicle wall to record images of the complainant, who was wearing a bikini at the time. The complainant’s boyfriend confronted the defendant, the phone was confiscated, and the defendant was arrested. The magistrate ruled there was no case to answer on the principal charge because the complainant was not doing a "private act" as defined by the statute, and declined to consider an alternative charge of attempted voyeurism. The prosecution appealed this ruling.

Legal Issues Presented

1. Whether a person wearing swimwear, other than as underwear, is considered to be doing a private act within the meaning of section 68 of the Sexual Offences Act 2003.
2. Whether the magistrate was correct in law to conclude that there was insufficient evidence to found a charge of attempting to commit an offence under section 67 of the Sexual Offences Act 2003 on the facts as found.

Arguments of the Parties

Appellant's Arguments

• The bikini worn by the complainant should be considered "underwear" within the meaning of section 68, based on the purpose and context of the legislation protecting privacy in places where a person is scantily clad.
• The legislation aims to protect persons from unwanted sexual observation in private places, and a wider interpretation of "underwear" is appropriate to achieve this protection.
• The magistrate should have allowed the trial to proceed on the basis of attempted voyeurism, as the complainant stated she was changing from bikini bottoms to underwear at the time the defendant attempted to record her, even if the video did not capture this.
• Even if it was impossible to film the complainant in the required state of undress, the defendant could still be guilty of attempting to commit the offence.

Defendant's Arguments

• The word "underwear" should be given its ordinary and natural meaning, which is distinct from swimwear.
• Parliament deliberately chose the term "underwear" and there is no basis to extend criminal liability to the use of swimwear.
• The defendant’s intention to record the complainant in a state of undress is uncertain given the circumstances, including the position of the camera and other factors.
• While accepting that an attempt can be criminal even if the offence is impossible, the magistrate was correct to dismiss the attempt charge due to insufficient evidence of intent to record a private act.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the statutory definition of a "private act" under section 68 of the Sexual Offences Act 2003, which includes acts where the person’s genitals, buttocks, or breasts are exposed or covered only with underwear. The complainant was wearing a bikini, which the court found was not ordinarily "underwear" but swimwear. However, the court acknowledged that some swimwear items could be worn as underwear and thus could fall within the statutory definition if worn for that purpose.

In this case, the evidence showed the complainant was wearing the bikini as swimwear, not as underwear, at the time the images were recorded. The court found the magistrate was correct to hold that the principal charge of voyeurism was not made out because the complainant was not doing a private act as defined by the statute.

Regarding the charge of attempted voyeurism, the court noted that the magistrate had declined to consider this alternative charge due to lack of evidence of the complainant’s state of dress at the time the defendant intended to record. The court disagreed, holding that once it was established that the defendant intentionally recorded the complainant for sexual gratification, there was sufficient evidence to infer intent to record her in a state of undress.

The court emphasized the legal principle, supported by R v Shivpuri, that an attempt to commit an offence is punishable even if the offence was impossible to complete. The defendant’s acts were more than merely preparatory, and his intention was clear from his conduct and admissions. Therefore, there was a prima facie case of attempted voyeurism, and the magistrate should have allowed the case to proceed on that charge.

Holding and Implications

The court overruled the magistrate’s decision to refuse to allow the trial to proceed on the charge of attempted voyeurism. It held:

• A person wearing swimwear other than as underwear is not doing a private act under section 68 of the Sexual Offences Act 2003.
• There was sufficient evidence to support a prima facie case of attempted voyeurism under section 67, even though the principal offence was not established.

The matter was remitted to the magistrate with a direction to find that there was a prima facie case of attempted voyeurism and to proceed accordingly. The decision clarifies the interpretation of "underwear" in the context of voyeurism offences and affirms that attempts to commit impossible offences remain criminally liable. No new precedent beyond the application of established principles on attempt was set.