202403033 B4 - [2025] EWCA Crim 1359

The Grounds of Appeal are as follows:-

“Having given at best, equivocal evidence as to whether she consented to the touching itself;

1.

There was insufficient evidence for a Jury to conclude that [C2] did not, on the occasion in the indictment, consent to being filmed and in any event

2.

The learned Judge should have ruled, as a matter of law, that filming of the sexual touching was not capable of negating consent to the sexual touching. Given

3.

[C2’s] equivocal evidence on the question of consent, the Judge should therefore have acceded to the submission of no case to answer and removed count 3 from the jury”.

The Single Judge granted leave to appeal against conviction limited to the second of these two grounds. Ms Newell renews the first ground, submitting that there was insufficient evidence for the jury to conclude that C2 did not consent to the filming.

We can deal with the Ground 1 in short order, as we are satisfied it is not arguable. Having reviewed the transcripts of C2’s ABE evidence, her cross-examination and re-examination, it is clear that there was ample evidence on the basis of which the jury could have reached the conclusion that C2 did not consent to the filming. By way of example, C2 stated that that she would, “never … agree to be videotaped, because we broke up once, really badly. So I didn’t trust him fully. I will never accept for the video”. It is also clear that a key aspect of her objection to any filming was any showing of her face, and therefore her identity. As she stated in evidence on an occasion where they were apart in different countries she filmed herself with her breast, “but – we don’t see my face … I would not … agree to [that] – even with my boyfriend now we never do that, and I trust him fully, it’s been three years … I won’t do the thing – it’s not my type …”. Accordingly, the renewed application on Ground 1 is dismissed.

On Ground 2 Ms Newell essentially advances two propositions. If there was sufficient evidence that C2 did not consent to the filming, then (i) whether filming was capable of negating consent was a matter of law for the judge and not the jury, and (ii) as a matter of law, filming of the sexual touching was not capable of negating consent to the sexual touching. The filming of the sexual touching was not so closely connected with "the nature of purpose of the act" or the performance of the sexual act so as to vitiate consent, but rather the filming related to the broad circumstances surrounding the sexual touching. Therefore, any lack of consent to, or knowledge of the filming, was not in law capable of negating C2’s free exercise of choice to consent to the sexual touching for the purposes of section 74.

No issue is taken with the legal directions themselves or the route to verdict, assuming that the Judge was right to leave Count 3, and the associated issues, to the jury.

For his part, Mr Hearnden submits that, although it is accepted that C2 gave ambiguous evidence in the witness box about consenting to being sexually touched while sleeping, C2 was clear and unambiguous that she did not consent to being filmed. It is submitted that the judge was entitled to take the view that the freedom and capacity to consent to sexual activity was vitiated when C2 was filmed, in the manner in which she was filmed, without her knowledge and permission. The filming was not incidental to the sexual touching. On the facts of this case, the filming was the entire purpose of the sexual touching, with C2 having the lead role in a choreographed pornographic movie made without her knowledge and without regard to her bodily autonomy, in circumstances where she had not agreed to it by choice for the purposes of section 74.