Anonymised Summary of Opinion
Factual and Procedural Background
This is an anonymised summary of the material set out in the provided opinion. The appeal concerns whether a lack of consent to the filming of sexual touching can negate the free exercise of choice to consent to the sexual touching for the purposes of section 74 of the Sexual Offences Act 2003.
The Appellant was tried in the Crown Court before Judge Dodd and, on 25 July 2024, was convicted of a number of offences under the Sexual Offences Act 2003, including rape (Count 1), sexual assault (Counts 3 and 4) and voyeurism (Count 5). He was acquitted on other counts and the jury were directed to return a not guilty verdict on one count; retrial was to be arranged on one remaining rape count. This appeal is against the conviction on Count 3 (sexual assault) with leave granted only on the ground that the trial judge should have ruled, as a matter of law, that filming of the sexual touching was not capable of negating consent.
The factual background (as put before the jury and summarised by the Judge) was that following an anonymous tip the police seized electronic devices from the Appellant's home, including his mobile phone. A video recorded on 21 December 2017 (the "Video") showed a woman (hereafter referred to as the Complainant) apparently asleep with the Appellant filming her and touching her breasts while holding the camera close. The prosecution alleged the Video showed a sexual assault involving touching of the Complainant's naked breasts while she was asleep; the defence said the Complainant had consented to "sleep play" and to filming, or that she was not actually asleep but participating in a consensual fantasy.
At trial the prosecution accepted that the Complainant had given some equivocal evidence that she might have allowed touching while asleep, but contended she would not have consented to be filmed and that the filming was so closely connected to the sexual touching that non-disclosure negated any consent. The trial Judge left the issue to the jury with directions about how to assess whether filming was a condition of consent and whether filming was part of the sexual touching itself or merely surrounding circumstances. The jury convicted on Count 3 and other counts, and this appeal follows.
Legal Issues Presented
- Whether a lack of consent to the filming of sexual touching is capable, as a matter of law, of negating the complainant's free exercise of choice to consent to the sexual touching for the purposes of section 74 of the Sexual Offences Act 2003.
- Whether, on the specific evidence in this case, there was sufficient evidence for a jury properly directed to be sure that the Complainant did not consent to the filming.
Arguments of the Parties
Appellant's Arguments (as advanced by Attorney Newell)
- The defence made a submission of no case to answer at the close of the prosecution case: the prosecution could not prove that the Complainant had not consented to the sexual touching, and filming was not relevant to that issue.
- It was argued that sexual touching and filming were separate matters; ignorance of filming was not material to the decision to permit sexual touching and, as a matter of law, filming could not negate consent to the touching because it related only to the surrounding circumstances.
- The defence also contended that the Complainant had given express consent to "sleep play" and to filming, or that she was not asleep but pretending as part of a consensual fantasy.
The Crown's Arguments (as advanced by Attorney Hearnden)
- Consent is generally a matter for the jury; even if there was ambiguity about consent to touching, the Complainant's clear evidence that she did not consent to filming (which the Appellant concealed) meant she was deprived of an informed choice.
- The Crown submitted that the filming was so closely connected to the nature and purpose of the sexual activity that non-disclosure of the filming negated any consent to the touching.
- The Crown also sought to rely on the evidential presumption in section 75, although the trial Judge did not place reliance on section 75 or the conclusive presumption in section 76 in leaving the issue to the jury.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Case A (referred to in the text as R v Jheeta) |
Illustration that section 76 is to be construed narrowly (context: limits of conclusive presumptions under s.76). |
The Judge and this court treated s.76 narrowly and agreed it did not apply to the present case; Case A is cited to support that construction. |
| Case B (referred to in the text as R v B) |
Held that nondisclosure of HIV status did not vitiate consent to sexual intercourse; distinguished matters related to the sexual act itself from consequences (consent remains to the act but may not cover resulting harm). |
Used as authority that some failures to disclose (e.g., health status) do not negate consent; the court contrasted those facts with the present case and explained why filming was materially different. |
| Case C (referred to in the text as R v Devonald) |
Deception as to the defendant's purpose (deceiving about the purpose of an act) can fall within s.76(2)(a) where purpose relates to the act itself. |
Cited to show that deception as to purpose can negate consent where it is closely connected to the act; used as guidance on distinguishing purpose from surrounding circumstances. |
| Case D (referred to in the text as Assange) |
Where a complainant consents on a condition (e.g., sex only with a condom), non‑compliance with that condition can mean there was no consent under s.74; s.76 may not apply but s.74 is the operative provision for fact-finding by a jury. |
Cited to support that s.74 is the primary inquiry and that deception or non‑disclosure not fitting s.76 can still vitiate consent as a matter for the jury under s.74. |
| Case E (referred to in the text as R (Monica) v Director of Public Prosecutions) |
Deception closely connected to the nature or purpose of the act is capable of negating a complainant's free exercise of choice under s.74; articulates the "closely connected" test. |
Used to identify the principle that the deception must relate to the sexual activity itself rather than its broad circumstances; this principle was applied to analyse whether filming here was sufficiently connected to the touching. |
| Case F (referred to in the text as R (F) v Director of Public Prosecutions) |
Affirms that choice is crucial and that courts should apply a broad common-sense approach to evidence relating to choice and freedom to make that choice under s.74. |
Cited in support of taking a broad common-sense approach to whether non-disclosure of filming deprived the Complainant of choice. |
| Case G (referred to in the text as R v McNally) |
Deception as to the sex/gender of the defendant can vitiate consent because it goes to the sexual nature of the act rather than a mere surrounding circumstance. |
Used as an example that deceptions not limited to the narrow physical performance of the act may nonetheless vitiate consent when they relate to the sexual nature or identity central to the complainant's choice. |
| Case H (referred to in the text as R v Lawrance) |
Emphasises that a "but for" test alone is insufficient to vitiate consent; the lie must be sufficiently closely connected to the performance of the sexual act rather than to broad circumstances (example: fertility lie did not vitiate consent). |
Adopted to explain that not all deceptions/non-disclosures negate consent; used to frame the test applied in this appeal. |
| Case I (referred to in the text as R v Richards) |
Interprets the scope of voyeurism offences including where a participant films sexual activity; cited for context on the offence of voyeurism. |
Considered in discussing whether the availability of a voyeurism offence (s.67) affects the analysis under s.74; court held it did not alter the conclusion that nondisclosure could vitiate consent here. |
Court's Reasoning and Analysis
The court approached the appeal by reference to the statutory definition of consent in section 74: "a person consents if he agrees by choice, and has the freedom and capacity to make that choice." The core question was whether the Appellant's failure to disclose that he intended to film the touching was capable in law of negating the Complainant's consent to the sexual touching.
The court set out the relevant legal propositions, taken from the authorities:
- There is no material difference between express deception and failure to disclose for present purposes (Lawrance at [41]).
- The "but for" test alone is not sufficient to vitiate consent (Lawrance at [34]).
- Consent can be negated where the deception or non‑disclosure concerns the sexual activity itself rather than the broad circumstances surrounding it; the issue is whether the matter was sufficiently closely connected to the sexual activity by reference to its nature, purpose and performance (Monica; Lawrance).
- A broad common‑sense approach to choice and freedom is required, but courts must identify the boundaries for a jury (R(F); McNally; Monica).
Applying these principles to the facts, the court examined in detail what the Video showed and how the filming related to the touching. The court noted that the filming was temporally and proximally connected to the touching: the phone was held close to the Complainant's face and breasts; the Appellant filmed before, during and after the touching; he held the phone with one hand while touching with the other; camera shots swept across face, breasts and the Appellant's penis. The court described the filming as "intimately connected" and "integral" to the sexual touching, and found that the filming was at least a central purpose of the touching (if not the sole purpose).
The court contrasted these facts with authorities where non‑disclosure related only to background matters (for example, fertility status or health status). It observed that in those cases the deception related to risks or consequences rather than the performance or nature of the sexual act itself.
The court further considered but declined to rely on sections 75 and 76: section 76 was construed narrowly and not applicable on these facts; section 75(2)(d) (the evidential presumption where the complainant was asleep) was not regarded as helpful or appropriate because the evidence at trial allowed the possibility that the Complainant had consented in advance to the sexual activity.
On the evidence, the court found there was sufficient material for a jury properly directed to be sure that the Complainant did not consent to the filming. The Complainant had given clear evidence that she would never agree to be video‑taped, particularly where her face and identity could be shown. The trial Judge's direction to the jury required them to be satisfied that non‑disclosure of filming was a condition of consent and that filming was part of the touching itself; the court concluded those directions were appropriate.
The court emphasised that this conclusion was fact‑specific: there will be cases in which a failure to disclose filming will not vitiate consent (for example, where filming is merely a background circumstance and an aggravating feature), but that is not this case.
Holding and Implications
Holding:
APPEAL DISMISSED — the court refused the renewed application for leave to appeal on Ground 1 and dismissed the appeal on Ground 2; the conviction on Count 3 (sexual assault) was upheld.
Implications:
- Direct effect: The Appellant's conviction on Count 3 stands. The trial Judge was correct to leave the issue to the jury and to direct them on whether non‑disclosure of filming could negate consent under section 74.
- Legal implication (limited): The court concluded, on the specific facts before it, that a failure to disclose filming which is intimately and integrally connected to the sexual touching can deprive the complainant of the freedom to make a choice under section 74 and so can negate consent. The court emphasised this was a fact‑specific conclusion and not a universal rule; there may be other cases where filming is merely part of surrounding circumstances and will not vitiate consent.
- No reliance was placed on section 75 or section 76 in reaching the result; the decision turns on s.74 and a broad common‑sense yet principled evaluation of whether the non‑disclosure was sufficiently closely connected to the sexual act.
Additional Notes
This summary is based exclusively on the contents of the provided opinion. Where the original text did not provide particular items of information in a form suitable for inclusion (for example, there was no full transcript reproduced here, and some evidential detail was summarised by the Judge), this summary does not attempt to infer or add information beyond what the opinion itself recorded.