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Kate and William to make criminal complaint

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In addition to seeking an injunction in the French Courts to prevent the further publication of the topless paparazzi pictures taken of the Duchess of Cambridge, it is understood that the Duke and Duchess intend to make a criminal complaint against the photographer who took those pictures.

A palace spokeswoman said "we can confirm that a criminal complaint is being made to the French Prosecution Department".

"It concerns the taking of photographs of the Duke and Duchess of Cambridge whilst on holiday and the publication of those photographs in breach of their privacy".

Whilst these proceedings have been taken in the French Courts, the international interest in the pictures raises questions as to how such behaviour would be treated in England and Wales.  

The former Prime Minister, John Major, told the BBC's Andrew Marr Show that the photographers actions were those of a 'peeping Tom' and a boundary had 'plainly been crossed'.  He went on to say "the way [these photographs] have been obtained is tasteless.  It is the action of a peeping Tom.  In our country we prosecute peeping Toms.  That is exactly what they have done and they have been peeping with long lenses from a long way away.  They are very distasteful".  No UK publication has yet published the photographs, although Italian and Irish Republic publications have.  Closer, the French magazine who first published the photographs is the same publication that in 2006 printed photographs of Princess Diana following the car crash in Paris in 1997 which caused her death.  A spokesman for the Prince of Wales' office has said "the incident is reminiscent of the worse excesses of the press and paparazzi during the life of Diana, Princess of Wales, and all the more upsetting to the Duke and Duchess for being so".  It is easy to see the similarities between the intrusive press attention endured by the Duke's Mother and the current media interest in his wife.

Whatever the law maybe in France, the obvious parallel in the law in England and Wales commonly used, to deal with a 'peeping Tom' is the offence of voyeurism' under Section 67 of the Sexual Offences Act 2003.  This is an offence which attracts a maximum penalty of 2 years imprisonment.  The offence covers instances where someone has a reasonable expectation of privacy, but is secretly observed.  This can be direct observation on the part of the offender, or by operating equipment with the intention of enabling someone else to observe the victim by recording someone doing a private act by with the intention that the recorded image would be viewed by the offender or another person, or by installing equipment or constructing or adapting a structure with the intention of enabling the offender or another person to observe a private act.  In all these cases however, the observation or intended observation must be for the purpose of obtaining sexual gratification and must take place or be intended to take place without the consent of the person observed.  The legislation defines a 'private act' in the context of this offence, as an act carried out in a place which, in the circumstances, would reasonably be expected to provide privacy, and where the victim's genitals, buttocks or breasts are exposed or covered only in underwear, or the victim is using a lavatory, or the person is doing a sexual act that is not of a kind ordinarily done in public. 

The result that is inherent in this offence is the intrusion of the victim's privacy.  Whilst it is seen as a less serious offence than that which involves non consensual touching, it is an offence which may nevertheless, cause severe distress, embarrassment or humiliation to the victim, especially in cases where a private act is not simply observed by one person, but where an image of it is circulated for wider viewing, and in such cases a higher sentence would be justified.

The offence relating specifically to the circumstances of the Duke and Duchess' experience could potentially fail to be proved, due to the requirement in all cases to show that the act was for the purpose of obtaining sexual gratification.  It seems likely that any paparazzo would be likely to say that the pictures where taken and circulated for commercial reasons rather than sexual gratification. 

Closer and Chi, the Italian magazine that has published these photographs, are both understood to be part of the Mondadori Media Group owned by former Italian Prime Minister, Silvio Berlusconi.  Alfonso Signorini editor for the group justified their publication of the photographs by saying "the fact that these are the future rulers of England makes the article more interesting and topical.  This is a deserving topic because it shows in a completely natural way the daily life of a very famous young and modern couple in love".  The French Court seems to take a different view.

Therefore, it will be interesting to see whether the action taken by the couple will have any effect on the way in which the media pursue them and whether in taking the stand that they are taking at this early stage will in some way draw a line in the sand as to what will and will not be acceptable.  If the photographer is identified and successfully prosecuted for committing a criminal offence, this may have more of an impact than the injunction.

This is not legal advice; it is intended to provide information of general interest about current legal issues. 

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