R v BVA [2025] EWCA Crim 1359

[2025] EWCA Crim 1359Case No 202403033 B4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT
T2022 7258
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29/10/2025
Before
THE LADY CARR OF WALTON-ON-THE-HILL,THE LADY CHIEF JUSTICE OF ENGLAND AND WALESMR JUSTICE BRYANHER HONOUR JUDGE LUCKING KC
Between
RRespondentBVAAppellant
Charlotte Newell KC (instructed by LT Law Solicitors) for AppellantRichard Hearnden (instructed by Crown Prosecution Service) for RespondentHearing Hearing date: 15 October 2025
Judgment Approved by the court for handing downThe provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where an allegation has been made that a sexual offence has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with s.3 of the Act. This judgment has been anonymised accordingly.The Lady Carr of Walton-on-the-Hill, CJ handed down the following judgment of the court:Introduction
[1]This appeal raises the question of whether lack of consent to the filming of sexual touching is capable of negating the free exercise of choice to consent to sexual touching for the purposes of section 74 of the Sexual Offences Act 2003.[2]On 25 July 2024, the appellant (then aged 36) was convicted of multiple offences under the Sexual Offences Act as follows: rape, contrary to section 1(1) (Count 1), sexual assault contrary to section 3(1) (Counts 3 and 4) and of voyeurism, contrary to section 67(3) (Count 5). He was acquitted on Count 2 (sexual assault contrary to section 3(1)) and also on Count 7 (controlling or coercive behaviour contrary to section 76(1) and (11) of the Serious Crime Act 2015).[3]Upon the direction of the Judge, the jury returned a verdict of not guilty on Count 9 (intimidation contrary to section 51(1) of the Criminal Justice and Public Order Act 1994).[4]The appellant appeals against conviction on Count 3 (sexual assault) with leave of the Single Judge on the ground that the Judge should have ruled, as a matter of law, that filming of the sexual touching was not capable of negating consent to the sexual touching.[5]Unless otherwise stated, references to sections below are references to sections in the Sexual Offences Act 2003.

The Relevant Facts in Summary

[6]Following an anonymous call to Crimestoppers on 30 April 2019, the police attended the appellant’s home address on 1 May 2019. A number of electronic devices were seized, including the appellant’s mobile telephone. The telephone download was reviewed by the police in March and May 2021. Messages and videos of a sexual nature were located on the telephone. One such video related to a woman (C2) and was created on 21 December 2017 at 4:08am (the “Video”). The prosecution case was that the Video showed a sexual assault by the appellant of C2 involving the touching of C2’s naked breasts whilst she was asleep.[7]The appellant was charged and first appeared in court on 24 June 2022. By the time of his trial in July 2024, he faced allegations of rape and sexual assault relating to a number of complainants.[8]In relation to C2, the prosecution case was that C2 first became aware of the Video when the police told her about it in November 2022. She was not aware that the appellant had filmed her, and this was “not something that she was into”. C2 had met the appellant in France in May 2016 on the dating app Tinder. The appellant had told C2 that it was his fantasy to have sex with a woman while she was asleep. Part of the fantasy was that the woman would wake up as she orgasmed. The prosecution case was that C2 did not consent to being filmed and sexually touched in the way shown in the Video.[9]After C2’s evidence at trial, the prosecution conceded that C2 seemed prepared to accept that she may have allowed the appellant to touch her in a sexual manner while she slept. However, her evidence was that she would not have done so had she known that he intended to film his actions (to which she had not consented). The prosecution case was that the filming was so closely connected to the nature and purpose of the sexual activity itself that the appellant’s failure to tell C2 about it negated any consent that she may have given to the sexual touching.[10]The defence in relation to C2 was that the appellant had a fetish of so called “sleep play”, which is what he was filmed doing in the Video. The appellant had obtained C2’s express consent to touch her whilst she slept. C2 was not in fact asleep, she was pretending as part of the fantasy and she had given consent to the sexual touching and the filming. In any event, the filming was not so closely connected with the nature and the purpose of the touching so as to be considered part of the touching itself.[11]The appellant gave evidence at trial. In relation to C2, he said that their sex life was heated and passionate. He told C2 about his fantasy and said that they indulged in “sleep play”. Filming was a big feature of their sex life and C2 was wrong and lying when she said that she had not agreed to filming their sexual activity. In relation to the Video, he said that C2 was awake and that they had penetrative sex afterwards, which he also filmed. The Video showed them engaging in ‘sleep play” and he denied that he was covertly filming C2 while she slept.

The Video

[12]It is necessary to identify in some detail what can be seen on the Video. C2 can be seen apparently asleep on her right side. Her face is clearly visible; her top half is naked; the rest of her body is obscured by a duvet. She is snoring lightly and wearing a blue ribbon and a buckled-up collar around her neck. With one hand the appellant is holding the mobile phone close to C2’s face and body. The light on the mobile phone is on and the appellant is using the phone’s camera to film her. The camera pans to the right to show C2’s face clearly (00:07). The camera then points down and zooms in to film C2’s left breast which is now filling over half the screen (00:17). The appellant’s free hand comes into view and squeezes her breast (00:22). His forefinger applies pressure to her nipple (00:25). The camera pulls away to reveal C2’s right hand resting on his erect penis (00:32). Again, his free hand touches her left breast (00:42) and he pulls his forefinger across her nipple. At this point (00:45) some classical music (Shostakovich: Jazz Suite No 2, Waltz II). This appears to distract the appellant. He lowers the phone (00:49) which can be heard scraping against the fabric of the bedding, consistent with him trying to turn down the music, which he succeeds in doing (01:02). Having waited a couple of seconds, the appellant then resumes fondling C2’s breast (01:11). C2 stirs slightly and he moves his hand away (01:17). The clip ends with another shot of C2’s hand upon his erect penis (01:27). A lit up TV screen/monitor can be seen fleetingly at the appellant’s feet as the clip ends. This would appear to be the source of the music.

Ruling on Submission of No Case to Answer on Count 3

[13]At the close of the prosecution case, Ms Newell KC for the appellant, made a submission of no case to answer. It was said that the prosecution could not prove that C2 had not consented to the sexual touching, and that the issue of filming was not relevant to that issue. It was argued that the sexual touching and the filming were two separate matters and that C2’s ignorance of the appellant’s plan to film her was not material to her decision to allow him to touch her in a sexual manner.[14]Mr Hearnden for the Crown submitted that consent was invariably a matter for the jury. Even if there were some ambiguity in respect of the agreement to allow sexual touching whilst asleep, the fact that, according to C2, the appellant had not told her that he intended to film his actions, meant that she was deprived of the opportunity to give an informed consent to what then took place. It was argued that, as a result of the appellant’s concealment of his intention to film, C2 was deprived of the freedom to choose whether to consent. Mr Hearnden also sought to rely on the evidential presumption in section 75.

The Judge summarised C2’s evidence:

[15]in her ABE interview C2 said that she had not consented to the appellant carrying out sexual touching of her whilst she was asleep. She also made it plain in that interview that she did not agree to the appellant filming her whilst he carried out that sexual touching. In the course of her evidence to the jury she appeared to make some concessions. She appeared, arguably, to allow for the possibility that she might have agreed to allow the defendant to touch her whilst asleep, although she had no recollection of that. She was adamant that she would not have agreed to filming.[16]The Judge considered many of the authorities and concluded that C2’s knowledge of her being filmed was a very important aspect of her being sufficiently well informed to be able to give a valid consent under section 74. She had been unequivocal in respect of the idea of her being filmed. The appellant’s failure to notify her of his intention to do that denied her the opportunity of refusing permission. She made it plain, that had she been asked, she would have refused that permission. This meant, arguably, that she did not give a valid consent to the sexual touching that undoubtedly did follow. As he stated at paragraph 28 of his Ruling:
“Her decision, if indeed that is how her evidence is to be interpreted, to allow the appellant to touch her whilst she was asleep, was not an informed one in respect of an extremely important aspect of the proposed sexual activity, that is to say, the filming of it, transforming an entirely private and transitory act, into something capable of being made public and permanent.”
[17]The Judge ruled that this would be a matter for the jury to consider in due course. He did not place any reliance on the evidential presumption in section 75 or the conclusive presumption in section 76.[18]Consistent with this ruling, and in the context of directing the jury about consent,

the Judge gave the following direction:

“The Crown invite you to conclude that [C2] was actually asleep and that she was not aware that filming would take place. The Crown submit that any consent she may have given to being touched sexually by the Defendant was given in ignorance of his intention to film his actions. The Crown say that the filming is so closely connected to the nature and purpose of the sexual activity itself that the Defendant’s failure to tell [C2] about it negates any consent that she may have given. If, they argue, the Defendant had informed [C2] that he not only want to touch her in a sexual manner while she was asleep but also to record her as he did so, it is clear, the Crown say, from her evidence that she would have refused to consent to that activity. The Prosecution submit that even if she did indicate in her evidence in court that she might have agreed to let the Defendant touch her in a sexual way whilst asleep, this was not an informed agreement and was not, therefore, a genuine consent. What the Defence say is that [C2] was not, in fact, asleep, that she was simply pretending as part of a fantasy, that she was simply pretending and that she had given consent to the sexual touching and the filming. And the Defence submit that the filming is not so closely connected with the nature and the purpose of the touching so as to be considered part of the touching itself. Well, there is no dispute that [the appellant] touched [C2] sexually and [C2] accepted in her evidence that she may have consented to him touching her sexually on the occasion with which we are concerned. If you are sure that she did not consent to filming, you will have to consider whether that negated any consent to the sexual touching. In order to do so, you will have to be sure that a condition of her consent to sexual touching was that it was not to be filmed. If you are sure that that was a condition of her consent, then go on to consider whether the act of filming is so closely connected to the nature and purpose of the sexual touching so as to be considered part of the touching itself rather than merely part of the surrounding circumstances. If you are sure that [C2] only consented to being sexually touched on this occasion because she was not aware that she would be filmed and you are sure that the filming was part of the sexual touching itself as opposed to being simply part of the surrounding circumstances, then go on to consider whether [the appellant] did or may reasonably have believed that she consented to the sexual touching that clearly took place.”
[19]The jury were also provided with a written route to verdict which was consistent with such directions, and included the following questions:- “2. Have the prosecution made you sure that the filming of the touching is so closely connected with the nature and purpose of the sexual touching so as to be considered part of the touching itself, rather than part of the broad circumstances surrounding the touching? If ...Yes 3. Have the prosecution made you sure that at the time of the filming, [C2] did not consent to the filming”” If ...Yes

Grounds of Appeal

[20]The Grounds of Appeal are as follows:- “Having given at best, equivocal evidence as to whether she consented to the touching itself; 1. There was insufficient evidence for a Jury to conclude that [C2] did not, on the occasion in the indictment, consent to being filmed and in any event 2. The learned Judge should have ruled, as a matter of law, that filming of the sexual touching was not capable of negating consent to the sexual touching. Given 3. [C2’s] equivocal evidence on the question of consent, the Judge should therefore have acceded to the submission of no case to answer and removed count 3 from the jury”.[21]The Single Judge granted leave to appeal against conviction limited to the second of these two grounds. Ms Newell renews the first ground, submitting that there was insufficient evidence for the jury to conclude that C2 did not consent to the filming.[22]We can deal with the Ground 1 in short order, as we are satisfied it is not arguable. Having reviewed the transcripts of C2’s ABE evidence, her cross-examination and re-examination, it is clear that there was ample evidence on the basis of which the jury could have reached the conclusion that C2 did not consent to the filming. By way of example, C2 stated that that she would, “never … agree to be videotaped, because we broke up once, really badly. So I didn’t trust him fully. I will never accept for the video”. It is also clear that a key aspect of her objection to any filming was any showing of her face, and therefore her identity. As she stated in evidence on an occasion where they were apart in different countries she filmed herself with her breast, “but – we don’t see my face … I would not … agree to [that] – even with my boyfriend now we never do that, and I trust him fully, it’s been three years … I won’t do the thing – it’s not my type …”. Accordingly, the renewed application on Ground 1 is dismissed.[23]On Ground 2 Ms Newell essentially advances two propositions. If there was sufficient evidence that C2 did not consent to the filming, then(i) whether filming was capable of negating consent was a matter of law for the judge and not the jury, and(ii) as a matter of law, filming of the sexual touching was not capable of negating consent to the sexual touching. The filming of the sexual touching was not so closely connected with "the nature of purpose of the act" or the performance of the sexual act so as to vitiate consent, but rather the filming related to the broad circumstances surrounding the sexual touching. Therefore, any lack of consent to, or knowledge of the filming, was not in law capable of negating C2’s free exercise of choice to consent to the sexual touching for the purposes of section 74.[24]No issue is taken with the legal directions themselves or the route to verdict, assuming that the Judge was right to leave Count 3, and the associated issues, to the jury.[25]For his part, Mr Hearnden submits that, although it is accepted that C2 gave ambiguous evidence in the witness box about consenting to being sexually touched while sleeping, C2 was clear and unambiguous that she did not consent to being filmed. It is submitted that the judge was entitled to take the view that the freedom and capacity to consent to sexual activity was vitiated when C2 was filmed, in the manner in which she was filmed, without her knowledge and permission. The filming was not incidental to the sexual touching. On the facts of this case, the filming was the entire purpose of the sexual touching, with C2 having the lead role in a choreographed pornographic movie made without her knowledge and without regard to her bodily autonomy, in circumstances where she had not agreed to it by choice for the purposes of section 74. The Law Relevant legislative provisions

The Law

[26]The relevant legislative provisions are all contained in Part 1 of the 2003 Act.[27]Section 3 provides:
“Sexual assault (1) A person (A) commits an offence if— (a) he intentionally touches another person (B), (b) the touching is sexual, (c) B does not consent to the touching, and (d) A does not reasonably believe that B consents. (2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents. (3) Sections 75 and 76 apply to an offence under this section.”
In the present case, only (c) and (d) were in issue before the Jury.[28]Section 74 defines “consent for the purposes of Part 1”, and thus covers a wide range of offences, including sexual assault, which require the prosecution to prove a lack of consent. It provides:
“For the purpose of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.”
[29]Section 75 provides for certain evidential presumptions about consent:
“(1) If in proceedings for an offence to which this section applies it is proved- (a) that the defendant did the relevant act. (b) that any of the circumstances specified in subsection (2) existed, and (c) that the defendant knew that those circumstances existed, the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he believed it. (2) The circumstances are that- …(d) the complainant was asleep or otherwise unconscious at the time of the relevant act;…” …(d) the complainant was asleep or otherwise unconscious at the time of the relevant act;…”
[30]Whilst section 75(2)(d) is relied upon by the Crown, like the Judge, we do not consider that it would have been either helpful or appropriate to rely on such assumption, given the evidence before the jury that C2 may have consented to the sexual activity in advance of the relevant act.[31]Section 76 provides for certain conclusive presumptions about consent in two specified circumstances:
“(1) If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed— (a)that the complainant did not consent to the relevant act, and (b)that the defendant did not believe that the complainant consented to the relevant act. (2) The circumstances are that— (a)the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act; (b)the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.”
[32]Section 76 is to be construed narrowly, (see R v Jheeta [2007] EWCA Crim 1699;[2008] 1 WLR 2582 at [24] (“Jheeta”) and R v Bingham [2013] 2 Cr App R 29 at [19]-[20]). It was not regarded as applying in the present case.

Authorities

[33]Sections 74 to 76 of the 2003 Act have been considered in a number of authorities, although none address the factual circumstances that arise in this case and the question of filming. The authorities nevertheless provide relevant guidance and illustration.[34]In R v B [2006] EWCA Crim 2945; [2007] 1 WLR 1567 (“B”) this court had to consider whether a failure to disclose HIV status could vitiate consent (and, equally, belief in consent) to sexual intercourse. The proposition was rejected, Latham LJ observing at [17]:
“Where one party to sexual activity has a sexually transmissible disease which is not disclosed to the other party any consent that may have been given to that activity by the other party is not thereby vitiated. The act remains a consensual act. However, the party suffering from the sexual transmissible disease will not have any defence to any charge which may result from harm created by that sexual activity, merely by virtue of that consent, because such consent did not include consent to infection by the disease.”
[35]In R v Devonald [2008] EWCA Crim 527 a deception as to A’s true purpose for encouraging B to masturbate online was considered to be a deception as to the purpose of the act falling within section 76(2)(a). Leveson LJ concluded that the judge was right to have ruled that it was open to the jury to conclude that the complainant was deceived as to the purpose of the act of masturbation – he was deceived into believing that he was indulging in sexual acts with, and for the sexual gratification of, a young girl with whom he was having an online relationship, not a 37 year old man. In arguing to the contrary, the applicant’s case had, “over focussed on the phrase ‘nature of the act’, which was undoubtedly sexual, but not on its purpose, which encompasses rather more than the specific purpose of sexual gratification by the defendant in the act of masturbation” (see: [9]).[36]In Julian Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin) (“Assange”) the allegation was that the complainant had given consent to sexual intercourse, provided thar Mr Assange used a condom. It was alleged that he had either not used one or had removed it during intercourse (“stealthing”). Following Jheeta, the Divisional Court concluded that section 76 had no application and that the issue of consent was to be determined by reference to section 74 which, as Sir John Thomas P put it at [81], was “the relevant section”. Section 76 dealt simply with the conclusive presumption in the very limited circumstances to which it applies. If the deception did not fall within section 76, that did not exclude it from falling within section 74 as a question of fact for the jury.[37]Sir John Thomas P stated at [86]:
“The question of consent in the present case is to be determined by reference to s.74. The allegation is clear and covers the alternatives; it not an allegation that the condom came off accidentally or was damaged accidentally. It would plainly be open to a jury to hold that, if AA had made clear that she would only consent to sexual intercourse if Mr Assange used a condom, then there would be no consent if, without her consent, he did not use a condom, or removed or tore the condom without her consent.”
[38]In R (Monica) v Director of Public Prosecutions [2018] EWHC 3508 (Admin); [2019] 1 Cr App R 28 (“Monica”) Lord Burnett CJ identified (at [72]) that:
“What may be derived from Assange is that deception which is closely connected with ‘the nature or purpose of the act’, because it relates to sexual intercourse itself rather than the broad circumstances surrounding it is capable of negating a complainant’s free exercise of choice for the purposes of s.74 of the 2003 Act.”
[39]In R (F) v Director of Public Prosecutions [2013] EWHC 945 (Admin) (“R(F)”) the Divisional Court decided, applying Assange, that the underlying facts, could support a conviction of rape. Consent had been given on the basis that the alleged offender would withdraw before ejaculation. The Director determined that as a matter of law the facts could not support a conviction of rape. That decision was quashed. Lord Judge CJ explained that what Assange underlines is that choice is crucial to the issue of consent. The evidence relating to ‘choice’ and ‘freedom’ had to be approached in a “broad common-sense way”. As Lord Judge CJ stated at [26]: “Did the claimant consent to this penetration? She did so, provided, in the language of section 74 of the 2003 Act, she agreed by choice, when she had the freedom and capacity to make the choice. What the Assange case 108(44) LSG 17 underlines is that choice is crucial to the issue of consent, and indeed we underline that the statutory definition of consent provided in section 74 of the 2003 Act applies equally to section 1(1)(c) as it does to section (1)(b). The evidence relating to choice and the freedom to make any particular choice must be approached in a broad common sense way”.[40]In R v McNally (Justine) [2013] EWCA Crim 1051; [2014] 2 WLR 200 (“McNally”) the defendant, pretending to be a boy, visited the female complainant on two occasions, and sexual conduct followed, including consensual digital penetration of the complainant by the defendant. The defendant was, in fact, a girl. The complainant would not have consented to digital penetration by a girl. Leveson LJ, rejected the submission that deception as to gender was tantamount to one as to age, marital status, wealth or HIV status, stating:
“25. In reality some deceptions (such as for example, in relation to wealth) will obviously not be sufficient to vitiate consent. In our judgment, Lord Judge’s observation that ‘the evidence relating to “choice” and the “freedom” to make any particular choice must be approached in a broad common sense way’ identified the route through the dilemma. 26. Thus while, in a physical sense, the acts of assault by penetration of the vagina are the same whether perpetrated by a male or a female, the sexual nature of the acts is, on any common sense view, different where the complainant is deliberately deceived by a defendant into believing that the latter is a male. Assuming the facts to be proved as alleged, M chose to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the defendant's deception.”
Deception as to gender could, thus, vitiate consent. As Lord Burnett CJ identified in Monica at [76], the deception in McNally did not relate to the nature or purpose of the act, but did relate to the sexual nature of the activity.[41]In Monica the complainant was an environmental activist who engaged in a sexual relationship with a man who was, unbeknown to her, an undercover police officer. She asserted that her consent was vitiated because had she known the truth of the officer’s identity she would not have consented to sexual intercourse with him. The case was a challenge, before the Divisional Court, to the decision of the Director not to prosecute the police officer for rape amongst other alleged offences. The Director’s decision was upheld. Lord Burnett CJ referred to the broad common-sense approach, explaining at [80]:
“An appeal to "broad common sense" in the application of any law does not relieve a court from the obligations of identifying the boundaries within which a jury will be asked to bring to bear its common sense and experience of life. For that reason, when considering the governing principle or approach it is necessary to examine how it has been applied by the courts to date, It has never been applied to deceptions which are not closely connected to the performance of the sexual act, or are intrinsically so fundamental, owing to that connection, that they can be treated as cases of impersonation.”
[42]In R v. Lawrance (Jason) [2020] EWCA Crim 971; [2020] 2 Cr App R 29 (“Lawrance”) the deception by the appellant was a lie about fertility (whether the defendant had had a vasectomy) and the question for Court was whether such a lie negated consent. Lord Burnett CJ emphasised (at [34]) that the “but for” test is insufficient of itself to vitiate consent. Rather:
“35. The question is whether a lie as to fertility is so closely connected to the nature or purpose of sexual intercourse rather than the broad circumstances surrounding it that it is capable of negating consent. Is it closely connected to the performance of the sexual act?”
The court concluded that it did not, identifying (at [37]) that, “[t]he deception was one which related not to the physical performance of the sexual act but to risks or consequences associated with it”.[43]Lord Burnett CJ later commented (at [41]) that it made no difference to the issue of consent whether there was an express deception or, as in B, a failure to disclose:
“In our view, in any event, it makes no difference to the issue of consent whether, as in this case, there was an express deception or, as in the case of R v. B, a failure to disclose. The issue is whether the appellant's lie was sufficiently closely connected to the performance of the sexual act, rather than the broad circumstances surrounding it.”
[44]He went on to emphasise that that the meaning of “consent” is no longer a matter for development by the common law (which was the position in the nineteenth century when the seminal cases on impersonation and misconduct during medical examinations were decided). Rather:
“42. …consent is defined by section 74 with evidential presumptions found in s.75 and the conclusive presumption in s.76. Any novel circumstances must be considered by reference to the statutory definition, namely whether an alleged victim has agreed by choice and has the freedom and capacity to make that choice.”

Discussion

[45]It is common ground that this appeal turns on section 74 of the 2003 Act, and not the presumptions in either section 75 or 76. The authorities on section 74 referred to above are not necessarily always easy to reconcile, and there may be no bright lines to draw. Perhaps unsurprisingly, they have aroused considerable academic interest: see for example Rogers “R v Lawrance – the right outcome” Arch Rev 2020, 8, 4-6; Murray and Beattie “Conditional consent and sexual offences: revisiting the Sexual Offences Act 2003 after Lawrance” Crim LR 2021, 7, 556-574; Ormerod “Rape and deception (again)” Crim LR 2020, 10, 877-881.[46]However, the following basic propositions of law can be identified: i) there is no material difference for present purposes between an express deception or, as here, a failure to disclose (Lawrance at [41]); ii) the “but for” test is insufficient of itself to vitiate consent (Lawrance at [34]); iii) consent is capable of being negated as a matter of law if the deception (or failure to disclose) relates to the sexual activity itself rather than the broad circumstances surrounding it (Monica at [72]). The issue is whether the relevant matter was sufficiently closely connected to the sexual activity (by reference to its nature, purpose and performance), rather than the broad circumstances surrounding it (Lawrance at [35] and [41]); iii) broad common sense has a role to play in finding the answer but does not relieve a court from the obligation of identifying the boundaries within which a jury should be asked to bear its common sense (R(F) at [26]; McNally at [26]; Monica at [82] approved in Lawrance at [33]). So, a vitiating deception is not limited to the strict (narrow) physical performance of the act (see, for example, the facts of McNally).[47]As already identified, the facts of this case give rise to novel circumstances which this court has not considered before. We approach the exercise by reference to the statutory definition, namely whether C2 agreed by choice and had the freedom and capacity to make that choice, and adopting a broad common sense yet principled approach. The question is whether a failure by the appellant to disclose to C2 the filming that took place was capable in law of negating her consent. Choice is crucial to the issue of consent. Was the filming that took place sufficiently closely connected to the sexual touching such that a lack of consent deprived C2 of her choice? Or was the filming simply part of the broad circumstances surrounding the sexual touching?[48]We have already described what can be seen on the Video. The filming was intimately connected to the performance of the sexual activity, here touching. The filming was temporally and proximally connected to the touching: the filming started and stopped alongside the touching; the phone on which the film was being recorded was held right up close to C2’s face and breasts; the appellant was holding the phone in one hand and touching C2’s breasts with the other.[49]The filming was also integral to the sexual touching. If not the sole purpose, then a central purpose of the sexual touching was to film the sexual activity. The appellant used the phone’s camera to record (and illuminate) C2 before, during and after the touching, with the camera shots sweeping across from C2’s face, her breasts, over to the appellant’s penis and back to C2’s breasts. What was being created was a pornographic video for the appellant’s immediate and potentially future sexual gratification (and potentially the gratification of others). As the Judge commented, it transformed what might otherwise have been a transient sexual touching into a permanent medium which could be watched in the future.[50]Given that the cases to date have not addressed similar facts, a comparison with them may not be helpful. But in so far as it may assist, the filming here was far more closely connected to the sexual activity in question than, for example, the (background) fertility status or health status of the offender (Lawrance; B).[51]We have also considered the availability of an alternative (lesser) offence of voyeurism. The existence of a section 67 offence does not alter our analysis above. It is not uncommon for an act or course of conduct to give rise to a range of potential offences. And whilst section 67 extends to cases where the defendant is him or herself a participant (see R v Richards [2020] EWCA Crim 95), the offence was created with “peeping Tom” type cases most obviously in mind (as reflected, for example, in the list of culpability and aggravating factors in the Sentencing Council Guideline on Voyeurism (effective 1 April 2014)). It is also possible to envisage serious sexual assaults that are filmed which might not necessarily fall within the definition of voyeurism (for example sustained sexual touching by the filmer of a fully clothed complainant through her clothes whilst she was asleep).[52]The Judge was therefore right to conclude that the filming was sufficiently closely connected to the sexual touching that a failure to disclose it was capable in law of negating consent. Using the terminology of section 74, non-disclosure would deprive C2 of the freedom to make the relevant choice. It is a conclusion that also accords with a broad common sense (yet principled) approach to the facts.[53]The Judge was also right to conclude that there was a case for the jury to consider on Count 3 on the evidence. There was sufficient evidence on which a jury, properly directed, could be sure that C2 did not agree to being filmed. She made clear that she would never agree to being “video-taped” (filmed), in particular if she were to be identifiable (as was the case here). In this way, it was open to the jury to conclude that they were sure that C2 was effectively deprived of her choice and did not consent to the sexual touching that took place. As already indicated, no challenge is brought to the Judge’s directions to the jury.[54]We would emphasise that we have reached these conclusions on the specific facts before us. There may be cases when a failure to disclose filming of sexual activity will not vitiate consent, for example when the filming is no more than a background circumstance and an aggravating factor (as identified in the Sentencing Council’s Guideline on Sexual Assault). But that is not this case.

Conclusion

[55]Accordingly, and for the above reasons,: i) we refuse the renewed application for leave to appeal on Ground 1; ii) we dismiss the appeal on Ground 2. The appeal against conviction on Count 3 fails.

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