Just five per cent of upskirting crimes in Scotland prosecuted

But new data obtained by the Scottish Liberal Democrats show that of those just 29 were passed on to prosecutors, slightly more than 5 per cent.

The party’s justice spokesman, Liam McArthur said the figures tarnished the “SNP’s record when it comes to safeguarding victims of sexual abuse.”.  

He said ministers need to close a loophole preventing upskirting cases from being reported to the COPFS.

The Sexual Offences (Scotland) Act 2009 was amended in 2010 to make it illegal to take a picture or a film beneath a person’s clothing to observe their “genitals or buttocks (whether exposed or covered with underwear)” without their consent.

However, it has, for years, been little prosecuted. Between 2011 and 2018 there were, on average, just three prosecutions.

For a prosecution to be successful, the Crown Office must show that the image or film was taken for “the purpose of causing… humiliation, alarm or distress, or for the purpose of obtaining sexual gratification.”

Mr McArthur told the Herald on Sunday that the law needed to be reviewed: “We need the government to take these offences seriously. They compromise the safety and dignity of women and constitute a form of harassment that for too long has been ignored.

"The increase in the number of cases reported suggests that people are finally gaining the confidence to come forward and report these incidents. Yet the shockingly low number of cases being passed to the Crown Office indicates that perpetrators are still getting away with it.

“These figures should embarrass the government and certainly tarnish the SNP’s record when it comes to safeguarding victims of sexual abuse. Women and girls in this country should not be expected to endure such horrific violations.  

“The nature of these offences means that victims already feel a sense of shame when reporting them to the police. The government will only discourage victims from speaking out if they do not close the loopholes which prevent upskirting offences from being reported to the COPFS.  

“Scottish Liberal Democrats will continue to press the government to review the law in this area to allow more cases to be reported to COPFS. This is the only way of giving victims confidence in the system that should be protecting them.”

A spokesperson for the Scottish Government insisted they were “committed to preventing and eradicating violence against women and girls” and suggested the law could be looked at again.  

They added: “It is also important that we continue to listen to the experience of victims and their families, and consider any further improvements that can be made.

“In Scotland ‘upskirting’ has been a criminal offence since 2010, when the Sexual Offences Act came into effect. It is also an offence to share intimate images of a person without their consent. We keep the law under continual review to ensure that it is effective.

“Anyone who believes they have been the victim of any such crime, or has information relating to any allegations, should contact the police immediately.”

While Scotland’s law changed over a decade ago, it was only in 2019 when MPs moved to adopt similar legislation in England and Wales following a campaign by Gina Martin.

She spent 18 months fighting to make upskirting a specific offence after a man took a picture up her skirt at a festival in 2017 and police declined to prosecute.

Notoriously, her efforts were almost undone when Tory MP Christopher Chope used Parliament procedure to block legislation that she and other MPs had spent months working on.

Speaking to The Herald on Sunday earlier this year, Professor Clare McGlynn, from Durham Law School, an expert in image-based sexual abuse and sexual violence, speculated the “public debate that accompanied the campaigns and criminalisation in England of the offence” could have partly fuelled the increase in reports north of the Border.

“It was relatively unknown that Scotland actually had an offence against upskirting, and the English law simply adopted the Scots law,” she said. “So, I think there has been a growing awareness both of the existence of this abuse, and a willingness to report it as it is now a crime.”

The academic said, more generally, that increases in some forms of online abuse, such as voyeurism and intimate image abuse, had risen “because it is just far easier to take and distribute images and videos than ever before”.

She added: “And online there are vast communities of users sharing images with each other and advice on how best to take images without being caught. This is true for upskirting.

“There are whole genres dedicated to this form of abuse – upskirting, voyeurism, hidden cams etc – on the mainstream commercial porn sites which glorifies and normalises this form of abuse.

“Since the pandemic, online abuse has risen, and we see that from surveys and statistics on people experiencing online abuse. That might include upskirting and similar. “

Last year, in England and Wales, 46 men and one teenage boy were prosecuted for 128 offences under the Voyeurism (Offences) Act between April 2020 and June 2021, more than double the offences in the previous year.

Fifteen of the men prosecuted were also charged with other serious sexual crimes.

These include child abuse, sexual assault, extreme pornography, and wider voyeurism offences.

Prof McGlynn said awareness of the crime had “an impact on its detection and reporting”.

She said: “In many of the English cases reported, it is bystanders who have noticed the behaviour and reported it – i.e. a member of the public, or often security guards etc, have seen the behaviour and reported/challenged someone.

“This is encouraging. I think women have also decided they’ve had enough of this sort of abuse, and are increasingly willing to report it.”

Earlier this year, West Lothian football coach Myles Allan was placed on the sex offenders register after being found guilty of upskirting a colleague. He was caught after two videos and two pictures of the woman were discovered on his work computer.