| CRIME – Sexual offences – Voyeurism – Man in swimming pool changing room observing and filming another man in shower with young child – Camera concealed in sports bag – Whether man watched doing private act – Whether reasonable expectation of privacy – Whether “breasts” including exposed male chest – Sexual Offences Act 2003, ss 67(1)(2)(3), 68(1)
R v Bassett; [2008] WLR (D) 157
CA: Hughes LJ, Treacy J and Sir Peter Cresswell: 14 May 2008
For an offence of voyeurism to be committed, within the definition in s 67 of the Sexual Offences Act 2003, there had to be a private act which involved parts of the body for which people would normally expect privacy, as defined by s 68(1). Casual observation by other changing room users created no offence of voyeurism, even if those persons gained sexual gratification from what they saw. Although those using the showers at a public swimming pool had a reasonable expectation of privacy from covert filming, there was no reasonable expectation that a man should enjoy privacy of his upper torso, since “breasts” in the Act referred to female breasts and not the exposed male chest.
The Court of Appeal (Criminal Division) so held in allowing an appeal by the defendant, Kevin Bassett, against his conviction on 23 April 2007 in the Crown Court at St Albans, before Judge Plumstead and a jury, of one count of voyeurism of a man, contrary to s 67(1) of the Sexual Offences Act 2003, for which he had been sentenced to a community sentence of 18 months supervision.
HUGHES LJ, giving the judgment of the court, said that the principal question was whether the man watched had been doing a private act as closely defined by s 68(1), which raised the issues of whether he had been in a place and circumstances which could reasonably be expected to provide privacy and whether since he was bare chested, breasts were exposed within the meaning of the statutory definition, when showering in trunks and washing his three year old daughter’s hair at a public swimming pool. S 67(1) created the offence of voyeurism with separate offences created by s 67(2) and s 67(3) for those who operated equipment to enable others to observe or to record the private acts of others. The related offences required evidence done by the person observing or recording. The issue was whether the man watched was doing a private act, as defined by s 68. Even an open plan changing room with a row of showers along one side and benches in the centre of the room provided a reasonable expectation of privacy. The defendant had been sitting naked on one of the benches as if changing, with a camera concealed in his sports bag. The question was how far for the purposes of this statutory definition, privacy was relevant. Unless the cubicles were fully enclosed, it was inevitable that those who used them expected to be observed by other persons using them. Casual observation by changing room users created no offence of voyeurism, even if those observing gained sexual gratification from what they saw. Those using the showers had a reasonable expectation of privacy from someone outside who had drilled a hole through the wall for that purpose. Whether the person observed had a reasonable expectation of privacy was one for the jury in each case and in many cases the question would be related to the nature of the observing rather than the purpose. There was no reasonable expectation that a man should enjoy the privacy of the upper torso, swimming trunks having been the standard attire for men for many years. It was Parliament’s intention that the statute referred to female breasts, which in 21st century Britain were still private, not the exposed male chest. Breasts in the plural were not used in medical language or in statutes dealing with sexual offences, in the context of the male body. For an offence of voyeurism to be committed, within the definition of s 67, a private act had to include parts of the body for which people would normally expect privacy, as defined by s 68(1) such as the use of a lavatory or sexual acts not done in public. |
