Factual and Procedural Background
This judicial review concerns the decision of the Director of Public Prosecutions (DPP) dated 20 December 2017, which confirmed an earlier decision not to prosecute a former undercover police officer ("Interested Party") for offences including rape, indecent assault, procurement of sexual intercourse, and misconduct in public office.
Between April and October 1997, the Claimant and the Interested Party were sexual partners. The Interested Party had infiltrated an environmental activist group under a false identity, unbeknownst to the Claimant. The Claimant asserts she would not have entered into a relationship had she known the Interested Party's true identity. The Claimant felt deceived and abused.
The procedural history includes a police interview of the Claimant in August 2016, followed by interviews of the Interested Party who declined to comment. The Crown Prosecution Service (CPS) reviewed the evidence and decided not to prosecute, a decision which the Claimant challenged through judicial review.
Legal Issues Presented
- Whether the Director of Public Prosecutions erred in law by concluding that the Interested Party's deception did not vitiate the Claimant's consent, thus negating a realistic prospect of conviction for rape.
- Whether the Director failed to take into account relevant considerations, including the Interested Party's conduct of relationships with multiple women from the activist group and public statements by the Metropolitan Police prohibiting such intimate relationships.
Arguments of the Parties
Appellant's Arguments
- The law on consent should be interpreted broadly to recognize that deception as to identity and shared beliefs vitiates consent, supporting a realistic prospect of conviction for rape.
- The existing legal categories limiting fraud vitiating consent to impersonation of a spouse or deception as to the nature of the act are outdated and do not reflect modern understandings of autonomy and sexual decision-making.
- The Director failed to consider relevant evidence including the Interested Party's multiple relationships with activists and public police apologies and policies condemning such conduct.
- The CPS lawyer erred by not acknowledging or properly weighing the Operation Herne report and Assistant Commissioner Hewitt’s public apology.
- The offence of procurement should be considered to include deception that leads to a sexual relationship, and mens rea can be inferred from the deception and its effects.
Defendant's Arguments
- The deception involved does not legally negate consent for rape under the applicable legal framework and precedents.
- The CPS lawyer’s decision was legally sound and involved proper evidential evaluation.
- The 2003 Sexual Offences Act, which significantly changed the law on consent, cannot be applied retrospectively to the Interested Party’s conduct.
- The Director properly considered all relevant evidence, including the Interested Party’s subsequent relationships and public statements, without error.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Clarence [1888] 22 QBD 23 |
Limits on fraud vitiating consent to impersonation of spouse or deception as to nature of act. |
Confirmed the narrow common law categories of fraud capable of vitiating consent. |
| R v Olugboja [1982] QB 320 |
Consent as a matter of fact for the jury; distinction between submission and consent. |
Held that consent must be assessed by the victim's state of mind but did not expand fraud categories. |
| R v Elbekkay [1995] Crim LR 163 |
Extension of impersonation principle to partners, not only spouses. |
Modest extension of common law to cover deception as to partner identity. |
| R v Linekar [1995] QB 250 |
Reaffirmed narrow fraud categories for vitiating consent; refusal to extend to all deceptions. |
Held that fraud unrelated to identity or nature of act does not negate consent. |
| R v Jheeta [2008] 1 WLR 2582 |
Interpretation of conclusive presumption provisions regarding deception and consent under 2003 Act. |
Confirmed limited application of conclusive presumptions and upheld convictions despite absence of deception as to nature or purpose. |
| Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin) |
Deception relating to use of condom not falling under conclusive presumption but relevant to consent. |
Clarified that deception may affect consent under broader statutory provisions even if not under conclusive presumptions. |
| R(F) v DPP [2014] QB 581 |
Prosecutorial decisions can be quashed for errors of law regarding consent. |
Quashed decision not to prosecute where consent was misconstrued legally. |
| R v McNally [2014] QB 593 |
Deception as to gender can vitiate consent; recognition of identity's role in consent. |
Supported view that deception about fundamental identity affects consent. |
| L v DPP [2013] EWHC 1752 (Admin) |
Strict judicial restraint in reviewing prosecutorial decisions. |
Outlined principles limiting court intervention in prosecutorial discretion. |
| R (Corner House Research) v Serious Fraud Office [2009] 1 AC 756 |
Limits on judicial review of prosecutorial decisions; respect for prosecutorial discretion. |
Emphasized rarity of court interference absent legal error or bad faith. |
| R v B [1977] 64 Cr App R 71 |
Definition and scope of "procurement" under Sexual Offences Act 1956. |
Guided analysis of procurement offence; distinguished from mutual attraction relationships. |
| Attorney-General's Reference (No. 3 of 2003) [2005] QB 73 |
Definition and threshold for misconduct in public office. |
Applied to assess seriousness of undercover officer’s conduct. |
| R v Chapman [2015] 2 Cr App R 10 |
Clarification of wilful neglect or misconduct threshold for public office abuse. |
Used to evaluate mens rea and seriousness in misconduct allegation. |
Court's Reasoning and Analysis
The Court carefully examined the applicable statutory framework and common law precedents concerning consent in sexual offences, focusing on whether deception by the Interested Party negated the Claimant’s consent. It acknowledged the narrow categories recognized historically—fraud as to the nature of the act and impersonation of a spouse—but rejected the Claimant's broader proposed test that would include deception about beliefs or identity beyond these categories.
The Court found that the CPS lawyer correctly applied current legal principles and that extending the law to cover the Claimant’s proposed broader understanding of consent would constitute an impermissible judicial expansion of criminal liability, a matter for Parliament rather than the courts.
Regarding procurement, the Court agreed with the CPS that mutual attraction and the passage of time between deception and sexual intercourse meant the offence was not established. The CPS lawyer’s evidential evaluation, including mens rea considerations, was entitled to deference.
On misconduct in public office, the Court acknowledged the seriousness of undercover officers’ sexual relationships but accepted the CPS lawyer’s judgment that the particular conduct did not meet the threshold of wilful misconduct or abuse of public trust. The Court held that public apologies and internal manuals were part of the evidential background but did not compel a different conclusion.
The Court emphasized the high threshold for judicial intervention in prosecutorial decisions, reiterating the principle of separation of powers and the specialized expertise of prosecutors in assessing evidential sufficiency and public interest.
Holding and Implications
The Court DISMISSED the application for judicial review.
The decision confirms that prosecutorial discretion, particularly on evidential grounds in complex cases involving historic conduct and nuanced issues of consent, is afforded significant judicial deference. The ruling underscores that expansion of criminal law definitions, especially concerning consent, is a legislative function and not to be undertaken by courts in judicial review of prosecutorial decisions.
There are no new legal precedents established. The direct effect is the upholding of the Director's decision not to prosecute the Interested Party on the charges presented.