R v BVA 2025
Following an anonymous call to Crimestoppers, police seized electronic devices from B's home in May 2019. B's mobile telephone contained videos, including one from 21 December 2017 showing B touching the complainant's (C2's) breasts while she appeared to be asleep. C2 met B in France in May 2016 on the dating app Tinder. C2 first became aware of the video when police informed her in November 2022.
The prosecution's case was that C2 did not consent to being filmed and sexually touched in the manner shown in the video. The defence case was that C2 had consented to "sleep play" and to being filmed during sexual activity.
C2 testified she may have consented to being touched while asleep but would never have consented to being filmed, particularly with her face visible. B gave evidence that C2 was not asleep but pretending as part of a fantasy, and had consented to both the touching and filming.
On 25 July 2024, B was convicted of rape (Count 1), sexual assault (Counts 3 and 4), and voyeurism (Count 5).
The case came to the Court of Appeal after B was granted leave to appeal against his conviction on Count 3 (sexual assault) on the ground that filming could not, as a matter of law, negate consent to sexual touching.
Held
Appeal dismissed
The Court of Appeal dismissed the appeal against conviction on Count 3.
The Court refused the renewed application for leave to appeal on Ground 1 (insufficient evidence), finding ample evidence that C2 did not consent to being filmed. The Court dismissed Ground 2, ruling that the Judge was correct 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 under section 74 of the Sexual Offences Act 2003. The Court held that the Judge was right to leave the case to the jury, who were entitled to conclude that C2 was deprived of her freedom of choice and did not consent to the sexual touching that took place.
The Court established key legal principles from existing authorities:
• The Court found the filming was intimately connected to the performance of the sexual activity because:
• The Court determined that the filming was integral to the sexual touching:
• The Court rejected the relevance of an alternative offence (voyeurism) being available:
• The Court emphasised that their conclusion was specific to these facts, noting there may be cases where a failure to disclose filming would not vitiate consent.
Reproduced with permission of Reed Elsevier (UK) Limited, trading as LexisNexis.
View the full case document here, with links to related legislation and similar cases.
