R v David Keay [2026] EWCA Crim 850

IN THE COURT OF APPEAL

Venue Royal Courts of Justice

Date Friday 15 May 2026

Strand

London

WC2A 2LL

Before

THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION

(Lord Justice Edis)

MR JUSTICE CAVANAGH

MR JUSTICE EYRE

Between

REXCrown

Between

DAVID KEAY

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Computer Aided Transcript of Epiq Europe Ltd,

Lower Ground, 46 Chancery Lane, London WC2A 1JE

Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

_________

MS AMY WEIR appeared for Applicant

MS MEGAN TOLLITT appeared for Crown

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JUDGMENT

THE VICE-PRESIDENT, LORD JUSTICE EDIS:

[1]This application for leave to appeal against conviction has been referred to the full court by the Registrar.

[2]The applicant, David Keay, was convicted by the jury of one count of controlling or coercive behaviour in an intimate or family relationship and one count of controlling prostitution for gain. Those verdicts were returned on 24 November 2025 in the Crown Court at Preston. The trial judge was His Honour Judge Gioserano. The judge proceeded at once to sentence in respect of those two convictions and a total term of imprisonment of 3 years was imposed. The indictment

[3]The application concerns the way that the judge approached a submission on behalf of the applicant that there was no case to answer at the close of the prosecution case. That submission related to count 1 on the indictment, which was in these terms:

"STATEMENT OF OFFENCE Controlling or coercive behaviour in an intimate or a family relationship, contrary to section 76(1) and (11) of the Serious Crime Act 2015. PARTICULARS OF OFFENCE DAVID KEAY between the 1st day of October 2024 and the 24th day of April 2025 at a time when he was personally connected to Melissa Mtetwa repeatedly or continuously engaged in behaviour towards Melissa Mtetwa that was controlling or coercive which had a serious effect on Melissa Mtetwa, namely that it caused Melissa Mtetwa serious alarm or distress which had a substantial adverse effect on Melissa Mtetwa's usual day-to-day activities, at a time when he knew or ought to have known that the behaviour will have a serious effect on Melissa Mtetwa. The particulars being: 1. Physical violence towards her other than in Count 2. 2. Verbal abuse towards her. 3. Taking her bank card and spending her money. 4. Allowing other people to use her flat."

The reference in the first particular to count 2 is a reference to an allegation of racially aggravated assault occasioning actual bodily harm of which the applicant was acquitted by the jury. The Act

[4]Section 76 of the Serious Crime Act 2015 is headed "Controlling or coercive behaviour in an intimate or family relationship" and provides so far as relevant:

"(1) A person (A) commits an offence if— (a) A repeatedly or continuously engages in behaviour towards another person (B) that is controlling or coercive, (b) at the time of the behaviour, A and B are personally connected (see subsection (6), (c) the behaviour has a serious effect on B, and (d) A knows or ought to know that the behaviour will have a serious effect on B. (3) But A does not commit an offence under this section if at the time of the behaviour in question— (a) A has responsibility for B, for the purposes of Part 1 of the Children and Young Persons Act 1933 (see section 17 of that Act), and (b) B is under 16. (4) A's behaviour has a ‘serious effect’ on B if— (a) it causes B to fear, on at least two occasions, that violence will be used against B, or (b) it causes B serious alarm or distress which has a substantial adverse effect on B's usual day-to-day activities."

[5]Section 76(4) (b) provides that the behaviour has "serious effect" if the conduct of the defendant causes B serious alarm or distress which has a substantial adverse effect on B's usual day-to-day activities. It is an alternative way of proving the offence to that set out in subsection 76(4)(a) involving fear of violence on at least two occasions. It is the form of the offence in 76(4)

(b) with which we are concerned. That requirement, namely serious alarm or distress having a substantial adverse effect on day-to-day activities, is one which we will describe for the purposes of this judgment as the ‘additional requirement'. The reference by the Registrar

[6]When the Registrar referred this application to the full court she said:

"The court should consider whether there was sufficient evidence that the serious alarm or distress that occurred had a substantial adverse effect on the complainant’s day-to-day activities. There appears to be no authority on the meaning of ‘substantial adverse effect on the complainant’s day-to-day activities’."

[7]So far as our researches and those of counsel are concerned, the Registrar is right that there is no such authority on the additional requirement in the context of this offence. It is interesting, and perhaps also relevant, that this additional requirement appears to have caused no difficulty in the decade or so since it came into force.

[8]The same words appear in section 4A of the Protection from Harassment Act 1997 which creates the aggravated offence of stalking. There is a decision of this court, to which we shall turn later, in respect of those words in the context of that offence but none in relation to the present case. The facts

[9]The applicant and the complainant met in around October 2024. Over time their friendship developed into a sexual relationship. Ms Mtetwa described it as being "friends with benefits". The relationship endured throughout the indictment period. She said in her evidence that during most of the period when it was current, the relationship involved behaviour by the applicant towards her which was controlling and coercive. She supported in her evidence each of the four particulars given to the indictment which we have set out above. We shall turn to her evidence in a little more detail in a moment, but in summary she described that he controlled and abused her financially; he was verbally abusive towards her and was repeatedly violent towards her as well. It may be noted that in convicting him of count 3 the jury accepted her evidence that he was controlling her activities as a prostitute.

[10]In her evidence Ms Mtetwa described the development of the relationship. She said that at first it was great; they both met frequently in and around Preston where they were both living. At the time when it started she had just lost her job with the National Health Service and was claiming benefits. As it developed he began to control her financially. He did not possess a bank card or bank account, so he used to have money paid in by a friend into one of her accounts to which he had access. He also took money from her account by borrowing her bank card which he would frequently fail to return. There came a time, she said, when she was unable to pay her rent for this reason and therefore lost her home. They then lived rough, squatting in and around the utility cupboards of flats nearby, and in due course he persuaded her to become a sex worker, meeting clients for sex and charging them money. The agreement was that that money would be split equally between them, but she said it frequently was not; he demanded and took it all.

[11]During all of this she described numerous occasions when she was physically assaulted, resulting in permanent scarring. She was, on two occasions at least, burnt by the application of a very hot crack tube pipe. She has a scar on her hand as a result of that and another one on her bottom. She was also jabbed in the face with the end of an umbrella, which also caused an injury, of which the jury saw a photograph.

[12]She complained of being exploited as a prostitute by him after she lost her flat. While she still had her flat, he used to use it as he wished. Despite her preference that he should not do so, he would allow other people to come into it whom she did not know and whom she did not want to be in her flat. Despite her objections, he ignored what she said and carried on just as he chose.

[13]He denied the conduct. His defence was not that she was not alarmed or distressed but that he had not caused any of it.

[14]In her evidence she described all of these things in some detail. She described how he had taken her money regularly and frequently in the way that we have described. She said in answer to the question, "What impact did him taking that money have on your life?", "It got to the point where -- that’s why I lost my flat because I had not been able to pay the rent and I lost my house due to rent arrears". She then described how at one point she had received a substantial reimbursement of benefit money in the sum of a little over £1,000; he had taken most of that.

[15]She described what happened when she lost her home. She said:

"The position changed when I ended up losing my home so, when I lost my home now and I was squatting with him, it ended up being something that … I started doing for money for both of us."

She was there describing the provision by her of sexual services to clients in return for money. She was asked whether the reason for her doing that was because she had lost her home, and she said, "Yeah. That was solely the reason because we were on the street, basically."

[16]Towards the end of her evidence-in-chief she was asked some questions about what happened at the end of the relationship at the time when she spoke to the police. She was asked whether she spoke to the police about what had been going on between her and the applicant, and she said, "Yeah. After a flood of emotions and them actually clearing my mind and made me see, really, what's going on and – yeah, they said it's not safe for me and that's why I had to flee from Preston."

[17]Shortly after that in her evidence she was asked about what family support she had to help her deal with all this. She said, "I just ended up isolating myself. It was just me and David. My mum tried on numerous times to get hold of me, but I would just say -- just disregard her now, thinking she's in the way of our relationship, and that's why she ended up calling the police saying I'm missing, and they were looking for me in Preston."

[18]At the end of her evidence prosecuting counsel asked how the applicant's behaviour had made her feel. She said, "I just started feeling -- to be fair, I started not having any confidence in myself anymore. I lost myself. Slowly, slowly, slowly, I was losing myself. My self-esteem went right down." Later in the same passage of evidence, she said:

"I lost everything … I lost my house. I’ve lived there 10 years. That was -- I moved to Preston for uni nine years ago and that was -- that was the house I started studying at uni, and then I lost that house. I had plans -- all my plans I’ve had, they’ve gone now. I’ve had to leave Preston because of this. I don’t live in Ribbleton anymore, I’m miles away from here now. I’ve had to go to a women’s shelter in April -- that April -- with the police officers. They took me to a different city and I had to go all the way, and in a women’s shelter refuge, I’m in and out. I’m now in supported housing now in a different place. I don’t know where I am. I don’t know the place. It’s -- my -- I can’t even think of going back to uni or even finding jobs because before I met Dave, I was working in NHS and then I ended up having to leave the NHS, and that’s why I ended up being on benefits. Yeah. Life just went downhill, more when I got to know him. I can’t even trust anyone now when it comes to relationships."

She had made it clear earlier in her evidence that her employment had ended before the relationship started.

[19]In cross-examination she was asked whether she was angry with Mr Keay and she said that she was upset. It was suggested to her that she was angry with him because he was not sharing his drugs with her. She said, "Not just the drugs, everything. It was a bout of emotions, not just the drugs". She described herself as being “disheartened”. She later said that she was scared of him. When she was asked about that, she said, "Yes, and I still am". She explained also in cross-examination how he had been able to access her bank account where her benefits were paid in because he had the PIN number for the relevant card.

[20]At the conclusion of all that evidence, which was supported to an extent by some evidence given by Ms Mtetwa's mother and also by some photographs which were adduced before the jury of her injuries, Ms Weir on behalf of the applicant made the submission of no case to answer. It was conceded that there was evidence of repeated behaviour by the applicant towards the complainant and that there was evidence that that behaviour had caused serious alarm and distress. The submission was, however, that the additional requirement inserted into section 76(4) required particular evidence of the adverse effect on the complainant's day-to-day activities and that such evidence was lacking. Ms Weir submitted that there was no evidence of any impact that the methods of control alleged by the prosecution had had on the complainant's day-to-day activities, let alone any evidence to suggest that such an impact was substantial.

[21]The judge rejected that submission. He relied in particular on the passage of evidence given by Ms Mtetwa which we have set out in full, and which came right at the end of her evidence-in-chief. He said that there was no need for specific evidence of any disruption to an established daily routine; it was enough if there was an overall substantial adverse effect which could come from the fact that a person's current situation was "substantially less favourable than it once was" and that that was caused by either physical, practical, psychological or emotional factors caused by serious alarm and distress caused by the behaviour of the defendant. The submissions

[22]We have heard oral submissions by counsel on both sides supplementing their excellent written documents in which they set out their respective cases.

[23]Ms Weir on behalf of the applicant essentially repeats the submission that she made to the trial judge. She submits that there must be evidence of a substantial adverse impact caused by the serious alarm and distress resulting from the applicant's conduct on the day-to-day activities of the victim. She says that although deterioration in mental health could be evidence of such an adverse impact, in this case there was no such evidence. She also submits that a realisation after the end of the indictment period that the conduct of the defendant had had such an effect on her would not be enough. The adverse impact must occur at the same time as the conduct which caused it.

[24]In response, Ms Tollitt supports the judge's decision for the reasons that he gave. She adds the observation that a substantial adverse effect on usual day-to-day activities can manifest itself in a wide variety of ways. Sometimes there will indeed be evidence of a disruption to an established daily routine, but sometimes there may be no such routine in the first place. She submits that people, perhaps such as the complainant in this case, who are living a somewhat chaotic life may have no established daily routine. She submits that Parliament cannot have intended that people in that situation should not have the protection which this criminal offence is designed to afford.

[25]Ms Weir invites us to consider the decision of this court in R v Tanner

[2024] EWCA Crim 1576

. That was a decision about a conviction for an offence of aggravated stalking contrary to section 4A of the Protection from Harassment Act 1997 which has the same statutory formulation as the additional requirement in the section 76 offence of controlling or coercive behaviour. In that case the complainant had suffered because the defendant with whom she had previously had a relationship had placed tracking devices on her car. She had been entirely unaware of this until she saw Tanner driving his car nearby and realised that it was him and contacted the police who then discovered the tracking devices. The stalking in that case therefore, the court held, had had no adverse impact on her day-to-day activities at all because by the time she discovered that it had been taking place, it had finished. Discussion

[26]First, we would like to record the assistance which we have received from both counsel in their very helpful submissions for their respective contentions. We have come to the clear conclusion that we prefer the submissions of the prosecution and that we consider that the judge's ruling on the submission of no case to answer was correct for the reasons that he gave.

[27]The position in this case is different from that which applied in R v Tanner. This was a case of controlling and coercive behaviour. In such cases it appears to us that the additional requirement may often add little. That is different from the position in stalking cases as the facts of Tanner make clear. In a controlling and coercive behaviour case, if the necessary conduct is proved, generally it will follow that the additional requirement is proved as well. If a person is subject over an extended period of time to control/coercion causing fear and is subject to abuse and exploitation, this will obviously substantially impact the way that they live, which is all that the additional requirement means. Control, by its nature, involves limiting the ability of the victim to choose how they live their life. The additional requirement is usually inherent in the conduct itself. If it does not have a substantial impact upon the day-to-day activities of the victim it will often not amount to controlling or coercive behaviour. For this reason, we do not find the decision of this court in Tanner to be of any direct relevance to the question we have to decide.

[28]There is no statutory requirement for any evidence of disruption to some established routine. Vulnerable people may have a chaotic lifestyle which involves no such routine. Those people can of course be victims of this offence if they are subjected to conduct of the necessary kind. That, then, is a general point which is enough to dispose of this application. However, the evidence in this case clearly established any such requirement if it existed. The victim gave evidence of the catastrophic impact of the applicant's behaviour on her life. It was of course a matter for the jury whether they accepted that evidence, but it was open to them to do so and they clearly did. The simple fact that she lost her home because she could not pay the rent because he had taken her money is itself, without more, enough. It is hard to imagine anything which impacts more significantly on a person's day-to-day activities than being made homeless and living rough.

[29]In addition to that, the applicant caused her to work as a sex worker and took more than his share of the proceeds because of his controlling and coercive behaviour. Dictating how somebody earns their living and relieving them of their income for your own benefit is another classic case of a significant effect on the day-to-day activities of the victim.

[30]We have set out Ms Mtetwa's evidence in relation to the impact on her in some detail above. This relationship was a disaster for her. It continues to affect her day-to-day life, which now takes place in another city from the one where she had lived for nine years or so before she met the applicant. In reality, the evidence which satisfied the additional requirement in this case was not merely sufficient, it was quite overwhelming if the jury accepted it. For these reasons therefore, this application is refused.

[31]It is not necessary on the facts of this case to engage with Ms Weir's submission that the adverse impact must be felt during the time when the controlling or coercive behaviour is occurring and that it is not enough if it is only appreciated in hindsight. The facts of this case do not require us to deal with that contention.

[32]The application is therefore refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk