202403033 B4 - [2025] EWCA Crim 1359

This appeal raises the question of whether lack of consent to the filming of sexual touching is capable of negating the free exercise of choice to consent to sexual touching for the purposes of section 74 of the Sexual Offences Act 2003.

On 25 July 2024, in the Crown Court at Wood Green before His Honour Judge John Dodd KC the appellant (then aged 36) was convicted of multiple offences under the Sexual Offences Act as follows: rape, contrary to section 1(1) (Count 1), sexual assault contrary to section 3(1) (Counts 3 and 4) and of voyeurism, contrary to section 67(3) (Count 5). He was acquitted on Count 2 (sexual assault contrary to section 3(1)) and also on Count 7 (controlling or coercive behaviour contrary to section 76(1) and (11) of the Serious Crime Act 2015).

Upon the direction of the Judge, the jury returned a verdict of not guilty on Count 9 (intimidation contrary to section 51(1) of the Criminal Justice and Public Order Act 1994). The jury were unable to reach verdicts on two further counts of rape contrary to section 1(1) (Counts 6 and 8). The Crown offered no further evidence on Count 6. A re-trial on Count 8 is due to take place next year.

The appellant appeals against conviction on Count 3 (sexual assault) with leave of the Single Judge on the ground that the 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.

Unless otherwise stated, references to sections below are references to sections in the Sexual Offences Act 2003.