202403033 B4 - [2025] EWCA Crim 1359

Following an anonymous call to Crimestoppers on 30 April 2019, the police attended the appellant’s home address on 1 May 2019. A number of electronic devices were seized, including the appellant’s mobile telephone. The telephone download was reviewed by the police in March and May 2021. Messages and videos of a sexual nature were located on the telephone. One such video related to a woman (C2) and was created on 21 December 2017 at 4:08am (the “Video”). The prosecution case was that the Video showed a sexual assault by the appellant of C2 involving the touching of C2’s naked breasts whilst she was asleep.

The appellant was charged and first appeared in court on 24 June 2022. By the time of his trial in July 2024, he faced allegations of rape and sexual assault relating to a number of complainants.

In relation to C2, the prosecution case was that C2 first became aware of the Video when the police told her about it in November 2022. She was not aware that the appellant had filmed her, and this was “not something that she was into”. C2 had met the appellant in France in May 2016 on the dating app Tinder. The appellant had told C2 that it was his fantasy to have sex with a woman while she was asleep. Part of the fantasy was that the woman would wake up as she orgasmed. The prosecution case was that C2 did not consent to being filmed and sexually touched in the way shown in the Video.

After C2’s evidence at trial, the prosecution conceded that C2 seemed prepared to accept that she may have allowed the appellant to touch her in a sexual manner while she slept. However, her evidence was that she would not have done so had she known that he intended to film his actions (to which she had not consented). The prosecution case was that the filming was so closely connected to the nature and purpose of the sexual activity itself that the appellant’s failure to tell C2 about it negated any consent that she may have given to the sexual touching.

The defence in relation to C2 was that the appellant had a fetish of so called “sleep play”, which is what he was filmed doing in the Video. The appellant had obtained C2’s express consent to touch her whilst she slept. C2 was not in fact asleep, she was pretending as part of the fantasy and she had given consent to the sexual touching and the filming. In any event, the filming was not so closely connected with the nature and the purpose of the touching so as to be considered part of the touching itself.

The appellant gave evidence at trial. In relation to C2, he said that their sex life was heated and passionate. He told C2 about his fantasy and said that they indulged in “sleep play”. Filming was a big feature of their sex life and C2 was wrong and lying when she said that she had not agreed to filming their sexual activity. In relation to the Video, he said that C2 was awake and that they had penetrative sex afterwards, which he also filmed. The Video showed them engaging in ‘sleep play” and he denied that he was covertly filming C2 while she slept.