Upskirting is now recognised as a serious criminal offence in England and Wales, and it falls within the framework of sexual offences.
This article explains what upskirting means, how the Voyeurism Offences Act changed the law, the potential punishment, and what happens if someone is investigated or charged.
What Is Upskirting?
Upskirting is a form of voyeurism. It typically involves a person secretly taking a photograph or video underneath someone’s clothing without that person’s consent, usually to capture an image of their underwear, genitals, or buttocks.
In simple terms, upskirting occurs when someone:
- Uses a mobile phone or other device
- Positions it beneath a person’s clothing without their knowledge
- Takes an image or video
- Does so for sexual gratification or to cause humiliation, distress or alarm
The Voyeurism Offences Act – The New Law
Before 2019, upskirting was sometimes prosecuted under older laws such as outraging public decency, a common law offence. However, campaigners argued that the law did not clearly address the specific harm caused by upskirting.
As a result, the Voyeurism Offences Act was introduced. This new law amended the Sexual Offences Act 2003, creating a specific offence of upskirting.
Under the Act, a person commits the offence if they:
- Operate equipment (such as a mobile phone or camera)
- Beneath another person’s clothing
- Without that person’s consent
- With the intention of either:
- Obtaining sexual gratification, or
- Causing humiliation, distress or alarm
The law recognises that upskirting is a serious invasion of privacy and bodily autonomy.
Where Can Upskirting Occur?
Although commonly associated with public spaces, upskirting can happen in many different circumstances.
Examples include:
- On public transport, such as buses or trains
- In shopping centres
- At festivals or crowded events
- In educational settings
- In workplaces
- In private settings or a private place
The offence does not depend solely on location. It is the absence of consent, the nature of the behaviour, and the offender’s intention that determine whether the act is illegal.
The British Transport Police regularly investigate reports of upskirting on trains and underground networks, where perpetrators may exploit crowded conditions.
Is Upskirting a Sexual Offence?
Yes. Upskirting is categorised as a sexual offence under the Sexual Offences Act 2003 (as amended by the Voyeurism Offences Act).
It is not simply inappropriate behaviour – it is a recognised criminal offence within the wider framework of sexual offences in England and Wales.
Because it is a sexual offence:
- It may result in a custodial sentence
- Offenders may be placed on the sex offenders register
- The court may impose notification requirements
- The case may be heard in either the Magistrates’ Court or Crown Court depending on seriousness
What Must the Prosecution Prove?
For a conviction, the prosecution must prove beyond reasonable doubt that:
- The suspect intentionally operated equipment
- It was positioned beneath the victim’s clothing
- The victim did not give consent
- The defendant either intended to obtain sexual gratification or to cause humiliation, distress or alarm
The element of intention is crucial. The prosecution must demonstrate that the act was committed with a specific purpose – either sexual gratification or to cause humiliation distress or alarm.
Consent and Knowledge
Consent plays a central role in sexual offences. A person cannot consent to something they do not know is happening.
By its nature, upskirting is carried out secretly. The victim is typically unaware that such images are being captured. That absence of knowledge means there is no valid consent.
The law protects individuals from being secretly photographed or filmed in ways that violate their dignity and privacy.
What About Sharing the Images?
In some cases, perpetrators go further and distribute such images online. Sharing or distributing explicit images without consent may lead to additional charges, including other sexual offences or communications offences.
The court will consider whether the offence involved:
- A single image
- Multiple instances
- Distribution
- Targeting of vulnerable individuals, including children
Where children are involved, offences are treated even more seriously.
Penalties and Maximum Sentence
The maximum sentence for upskirting is up to two years’ imprisonment under voyeurism sentencing guidelines.
Sentencing depends on several factors, including:
- The offender’s intention
- The number of victims
- Whether images were distributed
- The degree of planning
- The emotional harm caused
- Whether the offender has previous convictions
More serious cases may result in immediate custody. In less serious instances, the court may impose a community order, suspended sentence, or fine.
However, even where prison is not imposed, a conviction for upskirting is extremely serious.
Sex Offenders Register and Notification Requirements
In cases where the offence was committed for sexual gratification, the offender may be made subject to notification requirements, commonly referred to as being placed on the sex offenders register.
This means:
- The offender must notify police of their address
- They must report changes in circumstances
- They may be subject to monitoring
The duration of notification requirements depends on the sentence imposed.
For many individuals, inclusion on the sex offenders register has life-changing consequences, affecting employment, travel, and reputation.
Relation to Other Offences
Before the Voyeurism Offences Act, cases were sometimes prosecuted as:
- Outraging public decency
- Other voyeurism offences
- Communications offences
Upskirting may also overlap with similar offences involving recording in private places, such as bathrooms or changing rooms.
The introduction of a specific offence provides clarity within the criminal justice system and ensures consistent prosecution.
Investigation and Arrest
If someone is suspected of upskirting, the police may:
- Arrest the suspect
- Seize mobile phones or digital devices
- Conduct forensic examination
- Interview the suspect under caution
The suspect may be released under investigation while evidence is reviewed.
Digital evidence often plays a central role. A single mobile phone can contain substantial data, including photographs, videos, and communications.
Defences and Legal Considerations
Every case turns on its own circumstances. Potential issues in dispute may include:
- Whether the device was intentionally positioned
- Whether an image was actually captured
- Whether the act was deliberate
- Whether there was the necessary intention
- Whether identification is correct
In some cases, allegations arise from misunderstandings in crowded public places.
Because upskirting is a sexual offence, early legal advice is essential.
Public Interest and Prosecution
The Crown Prosecution Service (CPS) must consider whether prosecution is in the public interest.
Factors include:
- Seriousness of the behaviour
- Impact on the victim
- Age of the suspect
- Previous offending
- Whether the suspect presents ongoing risk
Where evidence is strong and the offence is serious, prosecution is highly likely.
Young People and Upskirting
Incidents involving young people have increased with the widespread use of smartphones.
Young offenders may not fully appreciate the seriousness of the law. However, ignorance does not prevent prosecution.
If children are involved – either as victims or offenders – cases are handled with particular care, but the behaviour remains illegal.
Sexual Offence Defence From McArthur Solicitors
Understanding what is upskirting is important in recognising the seriousness of the behaviour. It is not a prank or minor misconduct – it is a form of voyeurism and a criminal offence under the Sexual Offences Act 2003 as amended by the Voyeurism Offences Act.
If you are under investigation, have been contacted by the police, or are facing allegations of sexual offences, obtaining specialist legal advice at the earliest stage is essential.
The consequences – including prison, notification requirements, and long-term reputational damage – can be severe.
If you require confidential advice about an allegation or investigation, contact our specialist criminal defence solicitors immediately. The team at McArthur Solicitors have a wealth of experience in defending against serious sexual offence charges, and are on hand to provide clear, actionable legal advice at every stage of your case.
