R v BVA

Under section 74 of the Sexual Offences Act 2003, non-disclosure of filming may negate consent to sexual touching where the filming is sufficiently closely connected with the nature, purpose and performance of the touching, rather than merely its surrounding circumstances. The “but for” inquiry is insufficient.

Covert filming may satisfy that connection where it occurs alongside the touching, is physically proximate, and is integral or central to the sexual activity. Whether filming was a condition of consent, whether the complainant consented to it, and whether the defendant reasonably believed in consent remain matters for the jury.

The appellant was convicted in the Crown Court of rape, sexual assault and voyeurism. On Count 3, the prosecution alleged that he sexually touched C2 while covertly filming her. C2 accepted that she might have consented to the touching but maintained that she had not consented to being filmed.

The trial judge rejected a submission of no case to answer and directed the jury to consider whether the filming was so closely connected with the sexual touching that it formed part of the touching rather than merely its surrounding circumstances. The appeal concerned whether non-consent to filming was capable in law of negating consent to the touching under section 74 of the Sexual Offences Act 2003.

1. Disposition. The renewed application for leave to appeal on Ground 1 was refused. The appeal on Ground 2 was dismissed and the conviction on Count 3 stood.
2. Statutory framework. The relevant issue arose under section 74 of the Sexual Offences Act 2003. Consent requires agreement by choice, with freedom and capacity to make that choice. The court did not rely on the evidential presumption in section 75 because the evidence allowed for possible advance consent to the touching. Section 76 was construed narrowly and was not applicable.
3. Applicable principles. There is no material distinction between an express deception and a failure to disclose. A “but for” test is insufficient. The relevant matter must relate sufficiently closely to the sexual activity itself, assessed by reference to its nature, purpose and performance, rather than the broad circumstances surrounding it. Broad common sense assists the assessment, but within principled legal boundaries. These principles were drawn from R v B [2006] EWCA Crim 2945, Julian Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin), R (Monica) v Director of Public Prosecutions [2018] EWHC 3508 (Admin), R (F) v Director of Public Prosecutions [2013] EWHC 945 (Admin), R v McNally (Justine) [2013] EWCA Crim 1051 and R v Lawrance (Jason) [2020] EWCA Crim 971.
4. Application. The filming was temporally and physically proximate to the touching. It was integral to, and at least a central purpose of, the activity. The phone was used to record C2’s face, breasts and the appellant’s penis while he touched her. The filming transformed an otherwise transient act into a permanent recording. It was therefore capable of depriving C2 of the freedom to choose whether to consent to the touching. The court distinguished filming from health or fertility status, which concerned risks or consequences rather than the performance of the sexual act.
5. Jury issue. There was ample evidence that C2 did not consent to being filmed, particularly if she could be identified. It was open to a properly directed jury to decide whether filming was a condition of her consent, whether the filming was sufficiently connected to the touching, and whether the appellant reasonably believed that she consented. The availability of voyeurism under section 67 did not prevent the conduct from also constituting sexual assault.

• Court of Appeal (Criminal Division): On 29 October 2025, refused the renewed application for leave on Ground 1 and dismissed the appeal on Ground 2: [2025] EWCA Crim 1359.
• Crown Court: On 25 July 2024, convicted the appellant of rape, sexual assault and voyeurism in case T2022 7258. The judge left the issue of the effect of covert filming on consent to the jury.