Introduction

This judgment establishes, for the first time in England and Wales, that a complainant’s lack of consent to the filming of sexual touching may, as a matter of law, vitiate consent to the touching itself for the purposes of section 74 of the Sexual Offences Act 2003, where the filming is sufficiently closely connected to the nature, purpose, or performance of the sexual activity. On the facts, the Court held that filming was integral to the sexual touching and its non-disclosure deprived the complainant of a genuine choice, thereby sustaining a conviction for sexual assault.

The appeal arose from a conviction at Wood Green Crown Court. The appellant, who faced multiple sexual offences, challenged his conviction on Count 3 (sexual assault) on the basis that filming could not negate consent to touching as a matter of law. The Crown maintained that the filming was the very purpose of the touching and, absent disclosure and consent to filming, the complainant’s freedom to choose was compromised within the meaning of section 74.

The case sits at the intersection of sexual autonomy and informational privacy, addressing how covert recording can transform the character of a sexual act from a private, transient encounter into a permanent, potentially shareable artifact. The Court’s answer—anchored in section 74 and the “close connection” line of authority—creates an important digital-era consent precedent.

Summary of the Judgment

• Question of law framed: Whether lack of consent to filming sexual touching is capable of negating consent to the touching under section 74 of the Sexual Offences Act 2003 (para 1).
• Grounds on appeal: The appellant argued the judge should have withdrawn Count 3, ruling as a matter of law that filming cannot vitiate consent to touching; the appellant also renewed a ground that there was insufficient evidence that the complainant (C2) did not consent to filming (paras 20–21).
• Holding on capability (law): Yes. Non-disclosure of filming can vitiate consent to sexual touching where filming is sufficiently closely connected to the nature, purpose, or performance of the sexual activity (paras 47–52). The judge was right to leave the issue to the jury.
• Holding on sufficiency (fact): There was ample evidence for the jury to be sure that C2 did not consent to filming (para 22).
• Section 75/76: The Court declined to rely on section 75 (asleep) given possible pre-agreement to “sleep play,” and confirmed section 76 did not apply; the case turns on section 74 (paras 30–32, 45).
• Disposal: Renewed Ground 1 refused; Ground 2 dismissed; conviction for sexual assault upheld (para 55).

Factual Background

Police seized the appellant’s phone in May 2019 and, on review, found a video recorded on 21 December 2017 depicting the appellant touching C2’s naked breasts as she appeared to be asleep. The footage was close-up, illuminated by the phone’s light, and interleaved with shots of the appellant’s erect penis; the filming commenced, paused, and resumed alongside the touching (paras 6, 12, 48–49).

C2 learned of the video only in late 2022. She was clear that she had never consented to being videoed—especially if identifiable by her face—and said she was not “into” filming (paras 8–9, 22). The defence contended C2 had consented to “sleep play” and filming, or at least that filming was a separate circumstance not capable of vitiating consent to touching (paras 10–11, 13). The prosecution argued filming was integral to the sexual activity and its non-disclosure deprived C2 of a free and informed choice (paras 9, 14).

The Trial Ruling and Directions

On a no-case submission, the trial judge ruled that the issue was for the jury: knowledge of filming was “a very important aspect” of C2 being sufficiently informed to give valid consent; non-disclosure could negate consent to touching, as filming transformed a private act into a permanent record (para 16). The judge properly did not rely on the section 75 or section 76 presumptions (paras 17, 31–32).

The jury were directed to decide: (1) whether C2 had consented to filming; (2) if not, whether filming was so closely connected to the nature and purpose of the touching as to be part of the act itself rather than mere circumstances; and (3) if so, whether the appellant reasonably believed she consented (para 18–19).

Analysis

Complex Concepts Simplified

• Section 74 “consent”: A person consents if they agree by choice and have the freedom and capacity to make that choice. If a key element of the sexual interaction is undisclosed, the person’s choice may not be free or informed.
• “Nature, purpose, or performance” of the act: Short-hand for asking whether the matter goes to what the act is (its character), what it is for (why it is being done), or how it is carried out. Matters in these categories may vitiate consent if undisclosed or misrepresented.
• “Broad circumstances” vs “close connection”: Background facts (e.g., fertility status in Lawrance, HIV status in B) usually do not vitiate consent. By contrast, facts tightly woven into the act’s nature/purpose/performance—like stealthing (Assange), withdrawal conditions (R(F)), gender deception (McNally), or, here, integral filming—can.
• Conditional consent: Consent that is subject to a condition (e.g., “only with a condom,” “only if not recorded”). If the condition is intrinsic to the act and is breached or undisclosed, consent to the act may be negated.
• Section 75 vs section 76: Section 75 creates evidential presumptions (e.g., asleep), rebuttable if sufficient evidence is adduced; section 76 creates conclusive presumptions but is narrowly confined (nature/purpose deception; impersonation). Most modern deception/non-disclosure cases are resolved under section 74.
• No difference between deception and non-disclosure: For section 74, an active lie and a failure to disclose stand on the same footing; what matters is the close connection to the sexual act (Lawrance).

Applying the BVA test: markers of “close connection” to the act

Although each case is fact-specific, BVA identifies practical markers indicating that filming may be part of the sexual act itself:

• Temporal linkage: Recording starts/stops with the touching or penetration; pauses or adjustments during the act relate to filming (para 48).
• Physical integration: Camera is used to light, frame, and choreograph the body and movements; the performer’s actions serve the recording (para 48).
• Purpose centrality: A main aim of the sexual activity is to produce a video or images for sexual gratification or future use; the sexual contact occurs to create the recording (para 49).
• Transformative effect: The recording changes a private, transient act into a permanent, potentially shareable artifact—materially altering the character of the sexual interaction (para 49).

By contrast, examples less likely to vitiate consent (subject to facts) include:

• Incidental capture by a static, pre-existing device where filming does not direct or choreograph the act (para 54).
• Background security footage not used to shape or constitute the sexual performance.
• Filming clearly segregated in time from the sexual act and not integral to its performance.

Case Outcome in Detail

• Capability (law): The judge correctly held that filming could negate consent where closely connected to the sexual touching; it was proper to leave the issue to the jury with targeted directions (paras 16–19, 52).
• Sufficiency (fact): There was ample evidence that C2 did not consent to filming, particularly to being identifiable, including her emphatic statements that she would “never” agree to being videoed (para 22).
• Final orders: Ground 1 (insufficient evidence) refused; Ground 2 (legal capability) dismissed; conviction on Count 3 upheld (para 55).

Key Takeaways

• Non-disclosure of filming can negate consent to sexual touching under section 74 where filming is part of the act’s nature, purpose, or performance.
• The assessment is fact-sensitive: temporal, physical, and purposive integration of filming into the sexual act are highly probative of a “close connection.”
• The “but for” test is not enough; background circumstances do not typically vitiate consent.
• Section 74, not section 76, is the principal vehicle for resolving novel deception/non-disclosure scenarios post-Lawrance.
• Voyeurism and sexual assault can co-exist; the availability of section 67 does not displace section 3 when filming is integral to the sexual act.
• Clear, condition-specific consent discussions about recording are crucial; a failure to disclose a central intention to film may compromise the complainant’s freedom of choice.

Conclusion

R v BVA marks a significant development in the law of sexual consent for the digital age. The Court of Appeal confirms that covert filming can be so closely connected to the nature, purpose, or performance of sexual activity that non-disclosure of recording negates consent to the sexual act itself under section 74. The decision faithfully applies the “close connection” framework from Monica and Lawrance, distinguishes background-circumstance cases like B and Lawrance, and integrates the insight from Assange, R(F), and McNally that consent is fundamentally about informed, free choice assessed with broad common sense.

The Court’s careful boundary-setting is equally important: not every instance of filming will vitiate consent. The determinative inquiry is whether recording is integral to the sexual act—as it was here, where filming drove the timing, lighting, framing, and purpose of the touching. Prosecutors, defence practitioners, and trial judges now have a structured, principled route for jury directions and evidential assessment in cases involving non-consensual recording of sexual activity.

In short, BVA embeds informational privacy—control over whether an intimate act is turned into a permanent visual record—within the concept of sexual consent. This ensures that the law protects not only bodily autonomy in the moment, but also autonomy over the enduring consequences of sexual encounters.

Authorities and statutory provisions

• Sexual Offences Act 2003, sections 3, 74–76; section 67 (voyeurism)
• R v B [2006] EWCA Crim 2945; [2007] 1 WLR 1567
• R v Devonald [2008] EWCA Crim 527
• Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin)
• R (F) v DPP [2013] EWHC 945 (Admin)
• R v McNally [2013] EWCA Crim 1051; [2014] 2 WLR 200
• R (Monica) v DPP [2018] EWHC 3508 (Admin); [2019] 1 Cr App R 28
• R v Lawrance [2020] EWCA Crim 971; [2020] 2 Cr App R 29
• R v Richards [2020] EWCA Crim 95 (voyeurism and participant filming)