McNally v R.

Under section 74 of the Sexual Offences Act 2003, consent requires agreement by choice with freedom and capacity to choose. The conclusive presumptions in section 76 do not exhaust the circumstances in which deception may negate consent. Deliberate deception as to gender can vitiate consent where it removes the complainant’s choice whether to engage in sexual activity with a male or female partner. The inquiry is broad and based on common sense. Not every deception about a personal attribute will have that effect.

For sentencing, an abuse of trust requires a relationship capable of giving rise to trust or a duty of care. A romantic relationship between teenagers of similar age does not, without more, have that character.

The appellant appealed convictions entered on guilty pleas to six counts of assault by penetration contrary to section 2 of the Sexual Offences Act 2003, and appealed her sentence.

Over several years, the appellant conducted an online relationship while presenting as a boy. The complainant consented to sexual activity believing that the appellant was male. The appellant later admitted that the complainant had not consented because she had not known the appellant was female.

On appeal, the appellant contended that deception about gender could not negate consent, that her legal advisers had failed to explain the offence, and that her guilty pleas should be set aside. She also challenged the sentencing judge’s conclusion that the offending involved an abuse of trust.

1. The appeal against conviction was dismissed. The appeal against sentence was allowed. A sentence of nine months’ detention in a young offender institution, suspended for two years with a suspended sentence supervision order, was substituted for the three-year custodial terms.

2. Section 2 of the Sexual Offences Act 2003 requires absence of consent and absence of a reasonable belief in consent. Under section 74, consent depends on agreement by choice, made with freedom and capacity to choose. The limited conclusive presumptions in section 76 did not apply, but that did not prevent reliance on section 74.

3. A deception may negate consent where it removes a choice that is central to the complainant’s agreement. The question is fact-sensitive and must be approached broadly and with common sense. Deceptions about matters such as wealth will ordinarily be insufficient. However, although vaginal penetration is physically the same whether committed by a male or female, its sexual character differs where the complainant has deliberately been induced to believe that the other participant is male. On the assumed facts, the complainant chose sexual activity with a boy and the appellant’s deception removed her freedom to choose otherwise. Deception as to gender could therefore vitiate consent.

4. The court rejected the challenge to the guilty pleas. The evidence did not establish that the appellant had been wrongly advised or that a defence would probably have succeeded. Counsel had properly explained the ingredients of the offence, including reasonable belief in consent. No clear injustice justified setting aside the pleas.

5. Sentence. The judge had erred by treating the offending as an abuse of trust. The appellant and complainant were teenagers of similar age, and their relationship did not create a duty of care or a qualifying relationship of trust. The applicable guideline category therefore had a starting point of two years’ imprisonment, with a range of one to four years. The prolonged deception and harm to the complainant justified crossing the custody threshold, but the appellant’s age, mitigation and need for supervision justified a suspended sentence. The restraining order remained in force and the notification requirements were modified.

• Court of Appeal (Criminal Division): By [2013] EWCA Crim 1051, the court dismissed the appeal against conviction and allowed the appeal against sentence.
• Crown Court at Wood Green: The appellant pleaded guilty on 4 December 2012 to six counts of assault by penetration contrary to section 2 of the Sexual Offences Act 2003. On 21 March 2013, she received three years’ detention on each count and a three-year restraining order.