Observing partner partially clothed ‘not a criminal act’

Viewing one’s partner naked does not constitute voyeurism, appeal judges have ruled.

 

The Sheriff Appeal Court made the observation in allowing an appeal in part by a man found guilty of a contravention of section 9 of the Sexual Offence (Scotland) Act 2009 and a breach of section 39 of the Criminal Justice (Scotland) Act 2010.

 

Sheriff Principal Mhairi Stephen QC, sitting with Sheriff Principal Craig Turnbull and Appeal Sheriff Sean Murphy QC, heard that the appellant “KT” appealed against his conviction under the 2009 Act, which was to the effect that “(1) on various occasions between 20 June 2014 and 1 October 2015 both dates inclusive, he committed the offence of voyeurism in respect of his former partner SF, and, without their consent, observed and recorded her doing a private act with the intention of himself, yourself or another to look at the image of her, and did take photographs of SF while she was sleeping, while she was wearing her underwear and did take photographs of her breasts whilst she was asleep, contrary to section 9(1), (2) and (4) of the 2009 Act”.

 

 

Section 9(1) of the 2009 Act provides that a person commits the offence of voyeurism, if that person does any of the things mentioned in subsections (2) to (5). 

 

Charge 1 in the appeal alleged that the appellant did two of the things set out in section 9: first, he was alleged to have observed the complainer doing a private act for the purpose of “obtaining sexual gratification”; and second, he was alleged to have recorded the complainer doing a private act with the intention that he or another person would subsequently look at the image for sexual gratification. In each case, the offence is only committed if the complainer did not consent, and the appellant had no reasonable belief that the complainer consented.

 

In relation to the section 9(2) offence, it was clear from the evidence before the summary sheriff that the “observing” was in the context of the appellant taking the photographs which give rise to the separate section 9(4) offence.  

 

It was also clear from the appellant’s police interview that he was aroused when seeing the complainer asleep and partially naked. 

 

The question for determination was whether or not the appellant observed the complainer for the purpose of obtaining sexual gratification. 

 

 

Delivering the opinion of the court, Sheriff Principal Turnbull said: “At the relevant time, the parties were in a relationship; lived together; and shared a bed. In that context, on the limited evidence before the summary sheriff, there was insufficient material which would have entitled him to conclude that the appellant observed the complainer for the purpose of obtaining sexual gratification. The appellant’s observation has to be considered in the circumstances in which it occurred. 

 

“In circumstances such as those which arose in this case, viewing one’s partner clothed or unclothed is not a criminal act. The Crown accepted that it was not appropriate to convict of the ‘observing’ element of the charge in the circumstances of this case.“

 

In relation to the section 9(4) offence, there was no dispute that the appellant had taken the photographs in question, and it was also conceded at trial that the complainer could not have consented to the taking of the photographs, as she was asleep at the time. 

 

The appellant claimed that he had a “reasonable belief of consent”, but the court rejected that argument.

 

Sheriff Principal Turnbull explained: “The stated case suggests that the summary sheriff was neither directed to, nor considered, the terms of section 14 of the 2009 Act. It is, in our view, axiomatic that if the law provides (as it does by way of section 14(2) of the 2009 Act) that a person is incapable, whilst asleep or unconscious, of consenting to any conduct, there can never be a reasonable belief of consent in such circumstances.”

 

 

The appellant further claimed that there was insufficient evidence to convict, but the appeal sheriffs upheld the summary sheriff’s decision. 

 

The opinion of the court stated: “The appellant’s interview contains corroborative evidence of the complainer’s clear and unequivocal account. In that interview, shortly put, the appellant accepted taking the photographs in question and at no time suggested that the complainer consented to them being taken.

 

“The summary sheriff considered the evidence before him and rejected the evidence of the appellant; preferring the evidence of the complainer as he was entitled to do. That evidence, taken with the appellant’s police interview, gives a sufficiency.” 

 

Sheriff Principal Turnbull added: “We shall answer question 2(a), did I fail to take account of the evidence supporting the defence of reasonable belief in consent in respect of the charge of voyeurism, in the negative; and question 2(b), was I entitled to convict the appellant of the voyeurism charge, in the affirmative.

 

“The cumulative effect of the court’s answers to questions 1 and 2 in the stated case is to allow the appeal to the limited extent of deleting ‘observe and’ in line 4 and ‘(2)’ in the final line of charge 1.”