Barone, R. v

Factual and Procedural Background

On 7 March 2024, in the Crown Court at St Albans before Mr Recorder Stern KC and a jury, the Applicant was convicted of one count of Voyeurism contrary to section 67A(2) of the Sexual Offences Act 2003 ("the 2003 Act"). On 19 April 2024, the Applicant was sentenced to three months imprisonment suspended for twelve months. The Applicant subsequently applied for leave to appeal against his conviction, the case having been referred to the full court by the Single Judge. At the conclusion of the hearing on 11 February 2025, the court announced that the application would be dismissed, with written reasons to follow.

The offence involved the Applicant recording images beneath the clothing of the victim ("C") on a train journey on 15 September 2022. The victim had fallen asleep on the train, and later requested CCTV review after concerns about her journey. The CCTV showed the Applicant, an employee of Company A (Govia Thameslink Railway), taking photographs of her. The Applicant was identified through internal investigation and arrested, with images found on his mobile phone.

The central factual issue concerned whether the images were taken "beneath the clothing" and whether the private parts were "otherwise visible." The victim was wearing a skirt and tights, and the Applicant positioned himself deliberately to obtain images through the gap between her legs. The trial focused on the interpretation of statutory language and the circumstances in which the images were taken.

Legal Issues Presented

1. What is the proper interpretation of the phrase "beneath the clothing" in section 67A(2) of the Sexual Offences Act 2003 as amended?
2. Whether the images were recorded "in circumstances where the [private parts] would not otherwise be visible" within the meaning of section 67A(2)(b).
3. Whether the Applicant’s conduct fell within the scope of the offence created by section 67A, given the victim’s clothing and seating position.

Arguments of the Parties

Appellant's Arguments

• The photographs were not taken "beneath the clothing" of the victim.
• Due to the victim’s clothing position and seating, her tights and the outline of her underwear were visible to any person walking past or sitting nearby.
• The Recorder’s interpretation of section 67A did not properly reflect Parliament’s intention in creating the offence of upskirting.

Respondent's Arguments

• The purpose of section 67A was to criminalise the practice of upskirting where private parts would not otherwise be visible.
• The victim was wearing a skirt that covered her tights and private parts at the time the images were taken, as shown by CCTV and the photographs.
• The Applicant’s conduct of positioning himself and taking images through the victim’s legs was clearly within the offence’s scope.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court analysed the statutory language of section 67A(2) of the Sexual Offences Act 2003, focusing on the meaning of "beneath the clothing" and the requirement that the image be taken in circumstances where the private parts "would not otherwise be visible."

The court found that "beneath the clothing" refers to obtaining a view of private parts despite the person having clothed that part of their body, consistent with the concept of upskirting. The court rejected the argument that "beneath" only applies to images taken from lower positions close to the floor, noting that such a restriction would exclude cases where the victim is in different postures.

Regarding visibility, the court reasoned that the victim’s underwear was covered by other clothing (tights and skirt), and the Applicant was only able to obtain images of private parts by deliberately positioning himself and his camera to look through the gap between the victim’s legs. The court rejected the submission that the private parts were "on display," emphasizing that the victim’s posture and clothing provided a significant physical barrier.

The court further explained that the offence would be undermined if it depended entirely on the victim’s actions or clothing position, which Parliament did not intend. The court affirmed that the Applicant’s conduct fell squarely within the statutory offence as intended by Parliament.

Holding and Implications

The court DISMISSED the Applicant’s appeal against conviction.

The direct effect is to uphold the conviction and sentence imposed by the Crown Court. The decision confirms the interpretation of "beneath the clothing" and the visibility requirement under section 67A(2) of the Sexual Offences Act 2003 as amended, but does not establish a new precedent beyond this case.