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September 9, 2020

Last week, after five years of campaigning and seeking to get justice, Emily Hunt saw the man who had filmed her without her consent sentenced. Christopher Killick, 41, pleaded guilty to an offence of voyeurism, admitting that he had recorded a one-minute video of Emily, without her consent and for his sexual gratification. He was sentenced to a 30-month community order, fined £2,000 and told to pay Ms Hunt £5,000. Of more significance, he was required to register on the Sex Offenders Register for five years.

The ordeal began in 2015, when Emily woke up, naked in a hotel room in Bethnal Green, with no memory of how she had arrived there. Her last memory was of having lunch with her at a nearby restaurant five hours earlier.

Killick was initially arrested on suspicion of rape but although that charge was not proceeded with, the police discovered a 62-second video of Emily lying naked on the hotel bed on his phone. However, the CPS despite accepting that Emily had not consented to the video being taken, refused to prosecute on the basis that as it had been filmed in a private space, it was not unlawful under the Sexual Offences Act. Bizarrely, given her account that she believed she had been raped, the CPS stated that she may have previously consented to being looked at while naked. That argument is akin to saying that because someone consents to sexual activity on one occasion, they always consent to it.

However, they were forced to reconsider following the decision by the Court of Appeal in Richards v R (2020) EWCA Crim 95. Emily Hunt was an intervener in that appeal which related to two counts of voyeurism, contrary to section 67(3) of the Sexual Offences Act 2003, following his taking videos of sex workers. The appellant had previously pleaded guilty to the possession of indecent images of children and received a total sentence of 15 months’ imprisonment.

The issue on appeal was the expectation of privacy in circumstances where the appellant was present with the consent of the women and that they were consensually engaging in the activity that was filmed. Whilst accepting that the two women had an expectation of privacy, the appellant contented that privacy for the purposes of sections 67 and 68, has to be assessed in relation to the location of the person alleged to have observed or recorded the complainants. In this case, it was submitted that because the act was not private, the location it took place in was similarly not private in relation to the appellant.

It was further argued that the types of behaviour the legislation is aimed at is that typically referred to as voyeuristic or that of a ‘peeping Tom’, observing or recording the private act of another and that a participant in the act could never commit an offence under section 67(3). The Court was also cautioned against criminalising activity which Parliament had not intended should come within section 67(3).

In response, the Crown submitted that there was a reasonable expectation of privacy given the two complainants had not consented to what was a private instance of sexual intercourse being filmed and that, as such, it had been right to leave the issue of privacy to the jury. They also argued that the bedroom was a ‘highly’ private place and one which carried a strong expectation that what took place within it would not be capable of being viewed on a later occasion.

Mr Bunting, the intervener on behalf of Emily Hunt, submitted that in fact Parliament had focussed on both the place and the circumstances of the activity and that section 67 does not stipulate that the relevant act must be private from the person making the recording. He stated that the purpose of the provision was to protect those who suffer nuisance and distress when they are observed or recorded doing an intimate act in a private place. In that respect, the provisions of Article 8 of the European Convention, clearly stipulates that a reasonable expectation of privacy exists.

An offence under section 67 includes the following: ‘(1) A person commits an offence if; (a) for the purpose of obtaining sexual gratification, he observes another person doing a private act, and (b) he knows that the other person does not consent to being observed for his sexual gratification. (3) A person commits an offence if; (a) he records another person (B) doing a private act, (b) he does so with the intention that he or a third person will, for the purpose of obtaining sexual gratification, look at an image of (B) doing the act, and (c) he knows that B does not consent to his recording the act with that intention.’

Voyeurism is defined in section 68 which states that; ‘(1) For the purposes of section 67, a person is doing a private act if the person is in a place which, in the circumstances, would reasonably be expected to provide privacy, and (a) the person’s genitals, buttocks or breasts are exposed or covered only with underwear, (b) the person is using a lavatory, or (c) the person is doing a sexual act that is not of a kind ordinarily done in public.’

The issue raised in this appeal had in fact already been considered in R v Bassett [2008] EWCA Crim 1174, [2009] 1 Cr. App. R 7. In that case, the appellant took a video camera secreted in a bag into the male changing room at a public swimming pool. He was seen observing and either filming or intending to film a man taking a shower. The man was wearing swimming trunks and the shower was open to the general space of the changing room. He did not dispute that he was observing the man for the purposes of sexual gratification and that the man did not consent to being observed for such a purpose. The principal questions in that case were, first, whether he was doing a private act in the sense that he was in a place and in circumstances which could reasonably be expected to provide privacy, and second, whether, because he was bare-chested his ‘breasts’ were exposed for the purposes of section 68(1)(a). The Court determined that the circumstances could afford a reasonable expectation of privacy and that was a matter properly left to the jury but allowed the appeal on the basis that ‘breasts’ did not refer to the male chest.

However, Hughes LJ observed that it is possible to be engaged in an activity at which others are present whilst nonetheless having an expectation of privacy for the purposes of the offence of voyeurism. In that case, although taking a shower in a changing room could be seen by other users of the changing room, there was an expectation that activity would not be filmed for later viewing.

Relating that to the issue in the appeal, the Court noted that two things were taking place simultaneously. The first was a consensual and private act of sexual intercourse involving the appellant and the two women, something which could clearly not constitute an offence of voyeurism. The second was the deliberate and covert filming of the sexual activity. Whether that met the particular requirements of the offence created by section 67(3) involved asking whether it was open to a jury to find that the appellant had recorded another person; i) doing a private act for the purposes of section 68, ii) with the intention that he, or someone else, would, for the purpose of obtaining sexual gratification, ‘look at an image’ of the act and, iii) knowing they had not consented to his recording, what occurred with that intention.

As he had accepted that he recorded the act of intercourse for the purpose of obtaining sexual gratification when replaying the recording, the issue for the jury was whether the two women had consented to the filming and the only issue for the appeal was therefore, whether he had recorded a private act for the purposes of section 68, given he was one of the participants.

The approach taken in Bassett was said to be of significant assistance and that there was a case for the jury to consider whether the act of intimacy occurred in a place which, in the circumstances, would reasonably be expected to provide privacy from, for instance, a secret observer or a secret recording. The presence of the appellant as one of the participants in the intercourse, did not lessen the reasonable expectation of privacy because what occurred would not be available for later viewing, even if only by the appellant. It follows that section 67(3), which protects against the recording of another person doing a private act, is not limited to protecting the privacy of the complainant from secret filming by someone who was not present during the private act in question.

Emily Hunt’s judicial review of the original decision not to charge Killick, had been due to be heard just days before the CPS decided to charge Killick, claiming that the decision in Richards had clarified the law in respect of voyeurism. That ‘clarification’ didn’t explain the very different stance they had taken in respect of Richards, where Emily Hunt had been forced to intervene, and where, of course, they had been arguing that Richard’s filming of a consensual sexual act did amount to an offence.

Following the decision in Richards a spokesman for the CPS said ‘what constitutes a ‘private act’ for the purposes of the offence of voyeurism had never been conclusively defined by a higher court until today. The CPS does not make or decide the law; that is the remit of Parliament and the Courts respectively. Now that this new authoritative judgment has clarified this point of law, the CPS will review its position in the judicial review brought by Emily Hunt.’

That clearly overlooked the decision in Bassett which had clarified the position seven years before Emily Hunt found herself in that hotel room. I also successfully prosecuted a photographer for sexual offences which included voyeurism, two years ago, in circumstances where he submitted that all of the men had been at his home and consented in the activity which took place (Chall & others (2019) EWCA Crim 865).

And while the sentence and resolution of Emily’s case last week is a cause of celebration for her, the fact that it took five years to reach that stage is not. Of course, it is difficult at times to determine which offence under the various Sexual Offences Acts is the right one in respect of specific alleged behaviour. But what is essential to ensure public confidence is that those decisions, when taken, are consistent and that we won’t again see the same authority mounting two diametrically opposed arguments in respect of the same offence.

Sarah Regan