Richards, R. v

Factual and Procedural Background

On 24 April 2019, in the Crown Court at The City, before Judge Rees, the Appellant, aged 39, pleaded guilty to three counts of possession of indecent photographs of a child under section 160(1) of the Criminal Justice Act 1988. Subsequently, on 15 July 2019, before Judge Lloyd-Clarke and a jury, the Appellant was convicted of two counts of voyeurism contrary to section 67(3) of the Sexual Offences Act 2003. On 2 August 2019, the Appellant was sentenced to a total of 15 months' imprisonment, incorporating concurrent and consecutive sentences for the offences. He was also required to comply with notification provisions for 10 years, made subject to a Sexual Offences Prevention Order for 10 years, ordered to pay a surcharge, and the indecent material was ordered to be forfeited and destroyed.

The Appellant appealed against the two voyeurism convictions. The offences relate to the covert filming of two women during sexual acts in private bedrooms, which the Appellant participated in. The filming was without the consent of the women, who worked as escorts or prostitutes, and who had not agreed to be filmed despite the Appellant's claim that filming was consensual and part of a paid service. The legal question was whether the filming constituted voyeurism under the relevant statutory provisions, considering the Appellant was a participant in the acts filmed.

Legal Issues Presented

1. Whether the offence of voyeurism under section 67(3) of the Sexual Offences Act 2003 can be committed by a participant in the private act being filmed.
2. Whether the bedrooms of the complainants could reasonably be expected to provide privacy from the Appellant, given his presence and participation in the sexual acts.
3. Whether the filming without consent constituted an offence of voyeurism under the statutory definition of a "private act" and the reasonable expectation of privacy.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that the relevant place for assessing privacy was the complainants' bedrooms, which could not provide privacy from him as he was present with consent and participating in the acts.
• He argued that the offence of voyeurism was intended to capture activity by a voyeur or "peeping Tom" who is not a participant in the act filmed.
• It was submitted that criminalising the Appellant's conduct would extend the offence beyond Parliament’s intention, as section 67(3) was not designed to criminalise filming by a participant.
• The Appellant accepted the complainants had an expectation of privacy but argued this did not extend to privacy from himself as a participant.

Crown's Arguments

• The Crown submitted there was a reasonable expectation of privacy as the complainants had not consented to being filmed during a private sexual act in a highly private place (bedrooms).
• The issue of privacy was properly left to the jury, who could find the Appellant guilty of voyeurism.
• The Crown emphasised that privacy is assessed by considering the place and circumstances of the observation or recording, not limited by the presence of the participant.
• It was argued that the statutory purpose is to protect individuals from nuisance and distress caused by secret recording of intimate acts, supported by Article 8 of the European Convention on Human Rights and relevant case law.

Intervener's Arguments

• The Intervener submitted that the statute protects privacy in respect of the place and circumstances, not only from persons not present, and that reasonable expectation of privacy can exist even with consensual presence of others.
• The Intervener relied on jurisprudence recognizing the right to control one’s image as an attribute of personality deserving protection.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed whether the Appellant, as a participant in the sexual acts, could be guilty of voyeurism by secretly filming those acts. It considered the statutory definitions under sections 67 and 68 of the Sexual Offences Act 2003, focusing on whether the acts filmed were "private acts" occurring in places reasonably expected to provide privacy.

The court acknowledged that privacy expectations are context-dependent and can exist even where others are consensually present. It drew heavily on the precedent set in R v Bassett, which established that a person’s expectation of privacy can be from secret observation or recording, even by another participant or user of the space.

The court rejected the Appellant’s argument that privacy should be assessed from the perspective of the participant filming, holding that the statutory offence is not limited to protecting privacy from third parties only. The presence of the Appellant as a participant did not negate the reasonable expectation of privacy of the complainants against secret filming.

The court emphasized that the jury was properly directed to consider whether the complainants had a reasonable expectation of privacy in their bedrooms and whether the Appellant recorded the acts without consent for sexual gratification. The covert filming met the statutory elements of voyeurism under section 67(3).

In conclusion, the court affirmed that the offence can be committed by a participant who secretly records the private act, and it was appropriate to leave the case to the jury on these facts.

Holding and Implications

The court DISMISSED the Appellant’s appeal against conviction for voyeurism under section 67(3) of the Sexual Offences Act 2003.

The direct effect of this decision is the affirmation that a participant in a private sexual act may be guilty of voyeurism if they secretly record the act without consent, even in a private place such as a bedroom. The ruling clarifies that the statutory protection of privacy extends to secret filming by participants, rejecting a limitation that privacy must be assessed only in relation to non-participants. No broader precedent beyond the statutory interpretation and application to the facts was established.