202403033 B4 - [2025] EWCA Crim 1359

At the close of the prosecution case, Ms Newell KC for the appellant, made a submission of no case to answer. It was said that the prosecution could not prove that C2 had not consented to the sexual touching, and that the issue of filming was not relevant to that issue. It was argued that the sexual touching and the filming were two separate matters and that C2’s ignorance of the appellant’s plan to film her was not material to her decision to allow him to touch her in a sexual manner.

Mr Hearnden for the Crown submitted that consent was invariably a matter for the jury. Even if there were some ambiguity in respect of the agreement to allow sexual touching whilst asleep, the fact that, according to C2, the appellant had not told her that he intended to film his actions, meant that she was deprived of the opportunity to give an informed consent to what then took place. It was argued that, as a result of the appellant’s concealment of his intention to film, C2 was deprived of the freedom to choose whether to consent. Mr Hearnden also sought to rely on the evidential presumption in section 75.

The Judge summarised C2’s evidence: in her ABE interview C2 said that she had not consented to the appellant carrying out sexual touching of her whilst she was asleep. She also made it plain in that interview that she did not agree to the appellant filming her whilst he carried out that sexual touching. In the course of her evidence to the jury she appeared to make some concessions. She appeared, arguably, to allow for the possibility that she might have agreed to allow the defendant to touch her whilst asleep, although she had no recollection of that. She was adamant that she would not have agreed to filming.

The Judge considered many of the authorities and concluded that C2’s knowledge of her being filmed was a very important aspect of her being sufficiently well informed to be able to give a valid consent under section 74. She had been unequivocal in respect of the idea of her being filmed. The appellant’s failure to notify her of his intention to do that denied her the opportunity of refusing permission. She made it plain, that had she been asked, she would have refused that permission. This meant, arguably, that she did not give a valid consent to the sexual touching that undoubtedly did follow. As he stated at paragraph 28 of his Ruling:

“Her decision, if indeed that is how her evidence is to be interpreted, to allow the appellant to touch her whilst she was asleep, was not an informed one in respect of an extremely important aspect of the proposed sexual activity, that is to say, the filming of it, transforming an entirely private and transitory act, into something capable of being made public and permanent.”

The Judge ruled that this would be a matter for the jury to consider in due course. He did not place any reliance on the evidential presumption in section 75 or the conclusive presumption in section 76.

Consistent with this ruling, and in the context of directing the jury about consent, the Judge gave the following direction:

“The Crown invite you to conclude that [C2] was actually asleep and that she was not aware that filming would take place. The Crown submit that any consent she may have given to being touched sexually by the Defendant was given in ignorance of his intention to film his actions. The Crown say that the filming is so closely connected to the nature and purpose of the sexual activity itself that the Defendant’s failure to tell [C2] about it negates any consent that she may have given. If, they argue, the Defendant had informed [C2] that he not only want to touch her in a sexual manner while she was asleep but also to record her as he did so, it is clear, the Crown say, from her evidence that she would have refused to consent to that activity. The Prosecution submit that even if she did indicate in her evidence in court that she might have agreed to let the Defendant touch her in a sexual way whilst asleep, this was not an informed agreement and was not, therefore, a genuine consent.

What the Defence say is that [C2] was not, in fact, asleep, that she was simply pretending as part of a fantasy, that she was simply pretending and that she had given consent to the sexual touching and the filming. And the Defence submit that the filming is not so closely connected with the nature and the purpose of the touching so as to be considered part of the touching itself. Well, there is no dispute that [the appellant] touched [C2] sexually and [C2] accepted in her evidence that she may have consented to him touching her sexually on the occasion with which we are concerned. If you are sure that she did not consent to filming, you will have to consider whether that negated any consent to the sexual touching.

In order to do so, you will have to be sure that a condition of her consent to sexual touching was that it was not to be filmed. If you are sure that that was a condition of her consent, then go on to consider whether the act of filming is so closely connected to the nature and purpose of the sexual touching so as to be considered part of the touching itself rather than merely part of the surrounding circumstances. If you are sure that [C2] only consented to being sexually touched on this occasion because she was not aware that she would be filmed and you are sure that the filming was part of the sexual touching itself as opposed to being simply part of the surrounding circumstances, then go on to consider whether [the appellant] did or may reasonably have believed that she consented to the sexual touching that clearly took place.”

The jury were also provided with a written route to verdict which was consistent with such directions, and included the following questions:-

“2.

Have the prosecution made you sure that the filming of the touching is so closely connected with the nature and purpose of the sexual touching so as to be considered part of the touching itself, rather than part of the broad circumstances surrounding the touching?

If ...Yes

3.

Have the prosecution made you sure that at the time of the filming, [C2] did not consent to the filming””