Scotland’s legal chiefs face calls to review flagship laws on ‘upskirting’

Covertly taking revealing pictures of victims was made an offence in Scotland in 2010
Covertly taking revealing pictures of victims was made an offence in Scotland in 2010
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Scotland’s legal chiefs are facing calls to review flagship laws introduced to tackle so-called “upskirting” amid concerns that loopholes in the legislation are behind “very low” prosecution rates.

The Lord Advocate is being urged to step in after it emerged barely three convictions a year have been secured since the laws came into force with “limitations” in Scotland.

Campaigners claim images that are shared on social media for “group bonding” purposes or sold for financial gain, to a magazine or newspaper, can escape prosecution. 
One teaching union has warned the laws introduced in Scotland at start of the decade are not working and want mobile phones banned in schools because of the growing problem of pupils using them to take inappropriate photographs. Official figures obtained by the Liberal Democrats show there have never been more than five prosecutions or convictions for upskirting, or covertly taking revealing photographs of victims.

Prosecutions have averaged 3.5 per year, with just 3.2 convictions, since 2011. Liberal Democrat justice spokesman Liam McArthur has written to the head of Scotland’s prosecution service, the Lord Advocate Lord Wolffe, raising concerns about the issue and questioning whether guidance to prosecutors remains “fit for purpose”.

The prospect of the “very low numbers” being down to low instances of the offence is described as “counter-intuitive” by the Orkney MSP.

He said: “There may be some procedural or legal obstacle preventing a more representative number of cases being brought forward and disposed of by the courts.

“As you will appreciate, if such obstacles do exist the risk is that those who are victims of this unpleasant and distressing behaviour will be less willing to come forward with complaints in future.

“I would welcome, therefore, your views on whether or not the law in this area, and guidance to prosecutors, remains fit for purpose.”

Figures obtained by the party through Parliamentary answers at Holyrood reveal there were just three prosecutions and three convictions in 2016/17, down from five in each category the previous year. In 2014/15, the figures dropped to just two prosecutions and one conviction.

Upskirting was banned as a specific offence in Scotland in 2010 and similar measures are in the process of being introduced south of the Border when MPs return to Westminster later this year. The process was marked by controversy when Tory backbencher Sir Christopher Chote recently “talked out” a private members Bill that would have achieved the ban.

The proposed English legislation will largely mirror the law in Scotland, but amendments have been proposed to tighten up the Bill after “limitations” were identified in the Scottish legislation.

Clare McGlynn, a professor of law at Durham University who specialises in the regulation of pornography, image-based sexual abuse, including ‘revenge porn’, and sexual violence, has been working with MPs on the proposed changes.

She said the current law in Scotland only covers upskirting where it is perpetrated for motives of sexual gratification or causing distress.

“That covers a lot of situations, but it doesn’t cover every single instance of upskirting,” she said.

“So the debate in England has been, for example, about two main scenarios that might not be covered. One is where someone might take images for financial gain and say, sell them to a magazine.”
She added: “The other major scenario that isn’t necessarily covered is that many of these sorts of images that are taken and are traded amongst groups of men who are trading them not to cause distress to the other person, and it’s not generally about sexual gratification either, it’s about their group bonding.

“You see this with revenge porn images as well, often in closed Facebook groups, What’sApp groups. They’re taking and sharing the images amongst themselves. Sometimes they don’t care who the victim is. Often they don’t want the victim to know so you can’t say that they’re doing it to cause distress to the victim. If you have a law which says they have to prove that the perpetrator intended to cause distress to the victim, it doesn’t cover everything basically.”

This becomes “another hurdle” which police and prosecutors have to overcome in trying to secure a conviction, according to the academic.

Prof McGlynn has already appeared before Westminster committees scrutinising the issue and provided recommendations and suggestions.

Amendments to tighten up the English legislation in this area are expected to be brought forward when MPs consider the issue after the return of Parliament in September. Previous attempts to address the issue through amendments have been rejected at the opening committee stage when the government used its majority to vote them down.

A Scottish Government spokesman said in addition to the specific “upskirting” ban north of the Border, a new offence was established last year of sharing “intimate images” without consent under the Abusive Behaviour and Sexual Harm Act which was backed by a high profile media campaign to raise awareness.

“Action can be taken and support is available to anyone experiencing these types of crime,” the spokesman said.