202403033 B4 - [2025] EWCA Crim 1359

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.

However, the following basic propositions of law can be identified:

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?

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.

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.

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).

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).

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.

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.

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.