R v BVA: filming sexual activity without consent and section 74 Sexual Offences Act 2003

The Court of Appeal has delivered an important judgement addressing whether covert filming of sexual activity can negate consent to the touching itself. In R v BVA [2025] EWCA Crim 1359, the court dismissed an appeal against conviction for sexual assault, holding that secret filming was sufficiently closely connected to sexual touching to vitiate consent under section 74 of the Sexual Offences Act 2003.

The appellant was convicted of multiple sexual offences including sexual assault (Count 3). Police discovered a video on his phone showing him touching the complainant's (C2) naked breasts whilst she appeared to be asleep. The recording, made in December 2017, showed the appellant holding his phone close to C2's face and body, filming throughout the touching. Classical music played in the background from a nearby screen.

At trial, C2's evidence suggested she may have consented to sexual touching whilst asleep as part of "sleep play" fantasy, but was unequivocal that she would never have agreed to filming, particularly where her face was identifiable. The prosecution contended that the appellant's failure to disclose his intention to film negated any consent to the touching.

The legal framework

Section 74 of the 2003 Act defines consent as agreement "by choice" where the person "has the freedom and capacity to make that choice". The central question was whether the filming related to the sexual activity itself or merely formed part of the broad circumstances surrounding it.

The court reviewed established authorities including R v Lawrance [2020] EWCA Crim 971, which emphasised that deception must be sufficiently closely connected to the nature, purpose or performance of sexual activity—rather than its consequences or surrounding circumstances—to vitiate consent. A "but for" test alone is insufficient.

The court's analysis

Lady Carr LCJ, delivering judgement, identified that the filming was intimately connected to the sexual touching in multiple ways. Temporally and proximally, the filming started and stopped alongside the touching, with the phone held immediately adjacent to C2's face and breasts whilst the appellant simultaneously touched her with his other hand.

More significantly, the filming was integral to the activity itself. The court found that recording the sexual touching was, if not the sole purpose, then a central purpose of the touching. The appellant created what amounted to a pornographic video, transforming what might otherwise have been transient sexual contact into permanent recorded content capable of being viewed repeatedly and potentially shared.

The court distinguished cases involving non-disclosure of fertility status (Lawrance) or HIV status (R v B [2006] EWCA Crim 2945), which concerned consequences rather than the performance of sexual acts. The filming here was far more closely connected to the sexual activity itself.

The existence of the separate offence of voyeurism under section 67 did not alter this analysis. Multiple offences can arise from the same conduct, and serious sexual assaults accompanied by filming may not always satisfy the voyeurism definition.

Implications

The court emphasised its conclusions were reached on the specific facts before it. There may be circumstances where filming constitutes merely a background factor rather than vitiating consent. However, where filming is integral to and contemporaneous with sexual touching, rather than incidental, failure to disclose may deprive the complainant of the freedom to choose whether to consent, negating consent under section 74.

The appeal was dismissed, with the court finding sufficient evidence for the jury to conclude that C2 did not consent to the sexual touching in circumstances where she was unaware of the filming taking place.