R (on the application of Monica) v DPP
High Court
Citations: [2018] EWHC 3508 (Admin); [2019] QB 1019; [2019] 2 WLR 722.
Facts
In the late 90s, the police sent undercover officers to infiltrate a group of environmental activists. One of these officers began a sexual relationship with one of the activists. The activist was not aware of the officer’s true identity at the time. The activist would not have entered the relationship if she had known he was an undercover officer.
When the deception came to light, the Crown Prosecution Service declined to prosecute the officer for any offence. The relevant offences were rape under s.1 of the Sexual Offences Act 1956 or procuring sex by false pretences under s.3.
The Sexual Offences Act 1956 has since been replaced by the Sexual Offences Act 2003. The offence of rape exists under both statutes. However, there is no equivalent of s.3 in the new Act. The 1956 Act applied in this case because the relationship took place prior to 2003.
The High Court was asked to review whether this decision not to prosecute was correct. In relation to rape, the CPS argued that the activist had given valid consent to sex, and that the officer’s deception did not affect this. In relation to the s.3 offence, the CPS argued that the officer had not ‘procured’ sex through his deception – their relationship was based on mutual sexual attraction.
Issue(s)
- Did the officer’s deception vitiate the activist’s consent?
- Did the officer procure sex under false pretences?
Decision
The High Court upheld the CPS’ decision. Regarding rape, the officer’s deception was not one which could vitiate the activist’s consent. Regarding the s.3 offence, the deception only went to the circumstances in which the parties encountered one another, and this was not enough to amount to procurement.
This Case is Authority For…
Deceptions do not vitiate consent for the purposes of sexual offences unless they:
- Are closely connected to the performance of the relevant sex act; or
- Amount to impersonation of another person known to the complainant.
It is not enough that the defendant deceived the complainant about his extraneous characteristics.
Other
The High Court noted that the definition of ‘consent’ for the purposes of rape under the 2003 Act might be broader than it was under the 1956 Act. This is because the abolition of the procurement offence may have widened the offence of rape.
