Chris Jeyes gets conviction for voyeurism quashed by Court of Appeal – Persistence Pays

A recent case in the Court of Appeal shows the benefit of persistence.

Overview of the Case and Initial Conviction

A conviction for voyeurism contrary to s.67(1) Sexual Offences Act 2003 was quashed when Chris Jeyes successfully argued that two Crown Court judges had wrongly rejected submissions made more than two years apart that the conduct complained of was not caught by the statute.

Legal Definitions and the Issue of Interpretation

Section 67(1) states that a person commits an offence if or the purpose of obtaining sexual gratification, he observes another person doing a private act, and he knows that the other person does not consent to being observed for his sexual gratification.

“Observes” is clarified by s.79(7): “References to observation (however expressed) are to observation whether direct or by looking at an image.”

The Allegations and Initial Legal Arguments

Chris’ client had been involved in running a small village shop and post office. An employee alleged that she gave him her phone to download an app which was used to monitor newspaper supplies. It was said that somehow when he took her phone private sexual videos stored on the phone had been transferred to the shop’s IT systems. The Appellant had allegedly shown these videos to several other staff members, and transferred them to his own computer system at home.

The Crown alleged that this conduct, which took place early in 2017, amounted to voyeurism. Their submission was that when the Appellant looked at the videos, he had “observed” the sexual act graphically depicted. Previous defence counsel had agreed with the Crown that the interpretation section in the Act, s.79(7), widened the ordinary meaning of “observe” to include “looking at” an image.

Legal Review, Trial Proceedings, and Renewed Submissions

Chris Jeyes was instructed to review this conclusion and mount a legal argument that voyeurism was being wrongly interpreted.

Having considered the law in detail, including examining the government reports which led to the creation of the offence, along with the Sexual Offences Bill and how it was amended during its passage through Parliament, Chris concluded that s.67(1) had not been intended to cover the type of conduct alleged against his client.

Early in 2022 a dismissal argument was heard at the Crown Court. The Resident Judge delivered a ruling in which he said that the interpretation section widened the meaning of “observe” to cover looking at images which had been taken on an earlier occasion. He went on to add that a purposive approach to interpretation was required to ensure that those who were caught on film now that camera phones were ubiquitous were also protected by the law. The case was then listed for trial, but due to delays in listing the trial did not take place until February 2024.

At half-time in the trial Chris renewed the earlier submission before the trial judge. The trial judge again rejected the submissions, for similar reasons. Two Crown Court judges had now ruled against the argument of the defence.

Court of Appeal Ruling and the Clarification of Legal Interpretation

The trial judge directed the jury that the offence under s.67(1) could be committed by looking at earlier images, and in due course the jury convicted.

Chris appealed against the conviction. The Registrar referred the application for leave direct to the Full Court because it involved a point of statutory interpretation. There was no previous case law on this point, so the interpretation exercise had to be undertaken from first principles.

The Court of Appeal (William Davis LJ, McGowan and Bennathan JJs) agreed with Chris that both Crown Court judges had got it wrong. As Chris had submitted, “observe” is a word which implies watching something as it happens – it is possible to look at images and films of events many years after they happened, but that does not make the viewer an observer of the event. The interpretation section 79(7) spoke to the “how” something is observed, but not the “when”.

As a result, the legal argument succeeded on its third attempt, and the proper remit of the voyeurism offence has been clarified for the first time. The Court of Appeal went on to give a reminder that even if conduct is disapproved of, it is for Parliament to make the law, not the courts.