Monica, R (on the application of) v Director of Public Prosecutions

Facts

The claimant, known by the pseudonym Monica, had a sexual relationship with a man who was in fact an undercover police officer deployed to gather intelligence on a group to which she belonged. He concealed his real identity and the purpose of the relationship. She learned the truth later and complained that she had been raped.

History

The Crown Prosecution Service decided not to prosecute the officer for rape or related sexual offences. The claimant sought judicial review of that decision in the Administrative Court.

Issue

Whether the Crown Prosecution Service erred in law in deciding not to prosecute, which turned on whether a deception about identity and purpose can negate consent to sexual intercourse under ss 74 and 76 of the Sexual Offences Act 2003.

Held

The claim was dismissed. The deception by the officer about his identity and role was not of a kind to negate consent to sexual activity under the Act, so the decision not to prosecute for rape was not unlawful.

Ratio

• A deception about identity or the purpose of a relationship, unconnected with the nature or purpose of the sexual act itself, does not by itself deprive the complainant of the freedom to choose to have sex under s 74 of the Sexual Offences Act 2003 or engage the conclusive presumption in s 76.

Key reasoning

• Section 74 defines consent as agreement by choice, with the freedom and capacity to make that choice, but not every deception undermines freedom of choice in the relevant sense.
• Section 76 applies only to deceptions as to the nature or purpose of the act, and a deception about who the defendant is or what his job is does not concern the sexual act itself.
• The decisions on deception, including R (Assange) v Swedish Judicial Authority [2011] EWHC 2849 (Admin) and R v McNally [2013] EWCA Crim 1051, show that the courts have confined the effect of deception to matters closely linked to the sexual act.

Where it fits in the module

Topic 4 on sexual offences concerns the definition of consent in s 74, the scope of the conclusive and evidential presumptions in ss 75 and 76, and the extent to which deception undermines sexual autonomy. This case presents the tension sharply, because the deception was deliberate, sustained and state-sponsored yet was held not to go to consent. It illustrates the debate between a narrow view that confines vitiating deceptions to the act itself and a wider view that protects free choice generally.

Criticisms

• Treating identity as a collateral matter underestimates how central the identity and intentions of a partner are to the decision of a person to enter an intimate relationship, so the law fails to protect sexual autonomy.
• The narrow reading of s 74 leaves the reference in the section to freedom of choice with little independent work to do beyond the deceptions already caught by s 76.
• The outcome produces inconsistency with cases in which other deceptions, such as concealment of gender, have been held capable of affecting consent, so the boundary is not predictable.
• The decision leaves a gap where abuse of a public position through sexual deception falls outside the serious sexual offences and must be addressed, if at all, by other offences or by civil proceedings.