Bassett, R. v [2008] EWCA Crim 1174

Case No 2007/2680/D2[2008] EWCA Crim 1174
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 14 May 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE HUGHES
MR JUSTICE TREACY
SIR PETER CRESSWELL
Between
R E G I N ACrownv
Between
KEVIN BASSETT
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr T Wainwright appeared for AppellantMr R Jones appeared for Crown
J U D G M E N T

LORD JUSTICE HUGHES:

[1]This appellant took a small video camera hidden in a bag with a hole in it into the men's changing room at a public swimming pool. He was spotted watching and plainly either filming or intending to film a man who was taking a shower and washing the hair of his three-year-old daughter with whom he had been in the pool. At first it was understandably thought that the defendant's object was to observe the child, but it seems that his protestation that it was the man that he was interested in was in this case truthful. The man had his swimming trunks on. The charge was voyeurism of the man contrary to section 67(1) of the Sexual Offences Act 2003. The principal question in this appeal is whether the man who was watched was doing a private act, as closely defined by section 68. That in turn raises two issues:(1) whether the man was in a place and circumstances which would reasonably be expected to provide privacy and, if so,(2) whether since he was bare-chested it was a case in which "breasts" were exposed within the meaning of the statutory definition. The statute[2]Section 67 creates the offence of voyeurism. It provides so far as material to this case:
"(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. ... (5) A person guilty of an offence under this section is liable— (a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 2 years."
There are also separate but related offences created by subsections (2) and (3) of section 67 for those who operate equipment to enable others to observe or those who record the private acts of others. The charge in the present case was observing the man under section 67(1). The related offences require the same element of a private act done by the person observed or recorded.[3]In this court at least there is no issue about the elements of(a) observation by the accused,(b) his purpose being for sexual gratification, and(c) his knowledge that the man who he was observing did not consent to being observed for sexual gratification. The issue is whether the man was "doing a private act".[4]For the purposes of section 67 the expression "private act" is defined with considerable particularity by section 68. That section provides as follows:
"(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. (2) In section 67, 'structure' includes a tent, vehicle or vessel or other temporary or movable structure."
[5]The judge ruled that the man here was doing a private act. He ruled(a) that the man was in a place and circumstances which would reasonably be expected to provide privacy, and(b) that the word "breasts" in section 67(1)(a) extended to the male chest. Privacy[6]The changing room was open plan. It had flat benches in the centre of the room. There were some lockers down parts of two of the sides of the room and there was a row of showers along another side. Although the position is not completely clear it seems that the showers were probably separated one from another by some kind of panel or side wall, but that even if they were the stalls thus created had no doors on them and were thus open to the general space of the changing room. The benches could thus look directly into the showers. This appellant, who had apparently been for a swim, was sitting naked on one of the benches as one would if one was changing and he had the camera hidden in a sports bag.[7]It is clear that it is perfectly possible to have a reasonable expectation of privacy without being wholly enclosed or wholly sheltered from the possibility of being seen. The marathon runners in Swyer [2007] EWCA Crim. 204, who had gone behind a hedge or into a shrubbery to urinate, had an expectation of privacy from being pursued and watched. They did not need to be in an enclosed lavatory cubicle to have that expectation. Indeed the reason why they had gone where they had was to find a degree of privacy. We agree therefore with the judge's ruling in this case that the absence of a door to the shower does not conclude the issue.[8]That however leaves open the real question of how far for the purposes of this very particular statutory definition the expression "privacy" is relative and begs the question "Privacy from what?" Privacy generally means and is defined by the Shorter Oxford Dictionary to mean "The state of being withdrawn from the society of others or from public attention ... freedom from disturbance or intrusion or public attention ... absence or avoidance of publicity or display."[9]The marathon runners had a reasonable expectation of being undisturbed by Mr Swyer loitering to watch them relieving themselves and with or without the hidden camera that he in fact had with him. It does not follow that the runners had an expectation for privacy, reasonable or otherwise, from someone such as a walker of his dog who happened unexpectedly and unwittingly upon them. It seems to us that they did not have any expectation of privacy, reasonable or otherwise, from that kind of chance encounter. They took the risk that such an innocent encounter might occur. If such a hypothetical innocent dog walker had happened to derive some sexual gratification from what he or she saw, there would still be no voyeurism because there is no reasonable expectation of privacy from a casual and unintended encounter with a stroller. It is clear from the statute that it is not voyeurism simply to derive sexual gratification from observing something which is not a private act. If, on the other hand, the hypothetical dog walker did not walk on by but loitered for many minutes, closely watching the runners relieve themselves, it is possible that the point would be reached at which the runners had a reasonable expectation of privacy from the kind of observation that was now going on.[10]In the context of changing rooms and similar places the layout of them no doubt varies considerably from place to place. It may be that there are some more or less conventional differences between the layout of the majority of men's changing rooms and those that are provided for women, at any rate where the premises are open to the general public. Even in such places however the layout may well vary considerably from place to place and certainly it is likely to vary as between private clubs, sports or health facilities, places of work and similar places. However, unless such changing rooms consist almost entirely of separate wholly enclosed cubicles, it is normally inevitable that those who use them must expect to be observed unclothed, for some at least of the time, by other people who are also using the changing rooms. Consistently with the statutory policy which we have described it is clear that no offence of voyeurism is committed if that kind of observation takes place and even if in fact the observer derives sexual gratification from what he or she sees. There is, in short, no reasonable expectation of privacy from casual observation by other changing room users. By contrast, the fact that a number of men or women are standing naked at a row of unenclosed showers in a men's or women's changing room, and thus can be seen by anybody else passing through the changing room and using it, does not mean that those in the showers do not have a reasonable expectation of privacy from being spied upon by someone outside who has drilled a hole in the wall for the purpose.[11]The range of possible circumstances which exists between those comparatively plain cases shows that the question of whether the person observed had a reasonable expectation of privacy from the kind of observation which ensued is one for the jury in each case. We accept that that may well mean that in many cases the question of whether there is or is not a reasonable expectation of privacy will be closely related to the nature of the observing which is under consideration. That in turn may mean that the question of expectation of privacy may have an indirect link to the purpose of the observer. It is however plain that it is the nature of the observation rather than the purpose of the observation which may be relevant to the expectation of privacy. As we have already said, the presence of sexual gratification in the observer does not ipso facto mean that the observation is one from which there is a reasonable expectation of privacy.[12]In the present case

the judge specifically directed the jury that:

"... the mere fact that there is no door on the shower does not mean that this was not a place where [the man observed] had a reasonable expectation of privacy."
That, for the reasons which we have given, was correct.

The judge went on to tell the jury that in a changing room:

"The expectation is that you are only seen by people who are there for the same purpose as you, that is swimming and changing before or after swimming, and that any glimpse there may be is the innocent and accidental glimpse that ordinary social life brings about."
A little earlier he had said of such innocent and accidental glimpse:
"You accept that chance ... but if somebody was in there looking for sexual gratification, you would be entitled to expect them not to, you would be entitled to expect privacy..."
Those latter two passages needed, as it seems to us, to be qualified by a reminder that the mere deriving of sexual gratification from observation could not ipso facto create the necessary expectation of privacy. What might be relevant is the nature of the observation rather than its purpose. Whether in the present case of observation aided by a hidden camera this element of misdirection would cause us to say that the conviction is unsafe is a different matter. We should, however, first address the second point of statutory construction. "Breasts"[13]The judge directed the jury that although Parliament may well have had primarily in mind the voyeur who observes female breasts, it had not spoken in section 68(1)(a) of female breasts but merely of "breasts". That, the judge ruled, included the chest of the man who was observed in this case. Mr Wainwright submits that if this is so then the defendant who films for sexual gratification in the swimming pool proper is committing an offence in respect of the men who will be in trunks but not against the women whose costumes will cover their breasts. That argument does not persuade us. If breasts do indeed include the male chest the rule would be the same for men and women. Secondly, in any event there would, as it seems to us, be no reasonable expectation by a man in the 21st century who swims in a public pool in a pair of shorts with his chest exposed that he should enjoy privacy from observation of his upper torso. Male swimming costumes may have been quite different seventy years or so ago but trunks only as the rig has been standard for men for many years.[14]We look at section 68 in the context of its presence in the Sexual Offences Act. Its very particular and detailed definition does carry the difficulties inherent in such definitions. Nevertheless the scheme of the section, read as a whole, seems clear enough to us. It has to be taken together with the requirement in section 67 that there must be a private act in order for offences of voyeurism to be committed. Section 68 is then concerned to bring within the meaning of the private act those parts of the body for which people conventionally expect or normally expect privacy. In the same way the remaining provisions of section 68(1), that is to say subparagraphs (b) and (c), are concerned to bring within the concept of "private act" not body parts but functions for which people conventionally expect privacy, namely the use of the lavatory and sexual acts not ordinarily done in public. In each case it remains necessary to show that there was in the particular place and circumstances a reasonable expectation of privacy. However, since the purpose is to bring prima facie within the meaning of "private act" those parts of the body for which people conventionally expect privacy, it is clear to us that the intention of Parliament was to mean female breasts and not the exposed male chest. The former are prima facie still private in 21st century Britain; the second is not. We also think that that construction is supported by the use of the plural "breasts" which we do not think is in ordinary non-medical usage in the context of the male body. Certainly we do not think that it is in such usage in relation to the male body in the context of a statute dealing with sexual offences. It is of limited support for that plain construction, of which we have no doubt, that section 1(1)(a) of the Act provides that "a person commits an offence if (a) he intentionally penetrates the vagina, anus or mouth of another person with his penis." As Mr Wainwright points out, the form of the section is similar to section 68(1)(a) in the sense that the expression 'vagina' is linked to another person, albeit it can only refer to a female. That plainly is a clearer case than is the expression 'breasts' but the form of statutory provision does have that similarity. With or without that additional support we have no doubt that this Act did not in section 68(1)(a) mean to refer to the male chest but only to female breasts.[15]It follows that the judge's direction as to the meaning of breasts in section 68(1)(a) was erroneous. The conviction accordingly cannot stand and must be quashed. This appeal is accordingly allowed.[16]Mr Jones, is there any other consequential application?[17]MR WAINWRIGHT: There is not, no. I simply rise at this stage to ask for a representation order.

LORD JUSTICE HUGHES: Yes, of course, you have not had one, have you?

[19]MR WAINWRIGHT: My Lord, no.

LORD JUSTICE HUGHES: Representation order for junior counsel. Thank you both very much indeed.