F, R (on the application of) v The Director of Public Prosecutions & Anor

Judicial review of a decision not to prosecute is highly exceptional. The court must not substitute its own assessment for the prosecutor’s informed judgment, but may intervene for an error of law, perversity, disregard of compelling evidence or relevant policy, or impropriety. Under the Sexual Offences Act 2003, ejaculation and pregnancy are irrelevant to proof of rape. Consent depends on agreement by choice, with freedom and capacity to choose. Where intercourse is consented to only on the basis that the man withdraws before ejaculation, an intentional decision to ejaculate inside despite knowing that condition may negate consent to the continuing act of penetration. Accidental or premature ejaculation, where withdrawal was intended, does not itself constitute rape.

The claimant sought judicial review of the Director of Public Prosecutions’ refusal to prosecute her former partner for rape and sexual assault. After an earlier claim was filed, the DPP agreed to make a fresh decision. The resulting review assumed that the claimant’s evidence was entirely truthful and reliable, but concluded that it could not establish a realistic prospect of conviction. The central issue was whether the review had applied the correct law to an incident in which intercourse was permitted only on the basis that the intervener would withdraw before ejaculation, but he intentionally ejaculated inside her.

1. Disposition. The court granted judicial review and directed that the decision be reviewed again in light of the legal principles explained in the judgment. It did not determine the intervener’s guilt.
2. Scope of review. A decision not to prosecute involves an informed assessment of how the evidence and likely defences would fare before a jury. Following R v Director of Public Prosecutions ex parte Manning [2001] 1 QB 330, the court must not second-guess that assessment merely because it might have reached a different conclusion. Intervention remains possible where the decision is perverse, disregards compelling evidence or relevant policy, involves impropriety, or is based on an error of law.
3. Rape and consent. Section 1(1) of the Sexual Offences Act 2003 requires intentional penile vaginal penetration, absence of consent, and absence of a reasonable belief in consent. Ejaculation and pregnancy are irrelevant to the ingredients of the offence. Consent under section 74 means agreement by choice, with freedom and capacity to make that choice. The concept of choice applies to both actual consent and reasonable belief in consent.
4. Conditional consent. The reasoning in Assange v Swedish Prosecution Authority [2011] EWHC 2849 confirms the importance of choice where consent is conditional. Penetration is a continuing act under section 79(2). If a man intends, from the outset or after penetration has begun, not to withdraw and to ejaculate inside a woman, knowing that she would not have consented on that basis, her consent may be negated. The evidence in this case was capable of supporting that analysis.
5. Limit. The court distinguished consensual intercourse followed by accidental or premature ejaculation where the man intended to withdraw. No offence is committed merely because ejaculation occurs accidentally or prematurely.
6. The incident had to be assessed alongside the evidential history of sexual dominance, control and acquiescence, rather than in isolation. The entire body of evidence therefore required reconsideration.

High Court (Administrative Court): The initial judicial review claim was filed on 28 June 2011. On 14 July 2011 the DPP agreed to make a fresh decision. The present first-instance judicial review challenged the subsequent review and resulted in an order for reconsideration.