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

A deception vitiated consent to sexual intercourse under the law applicable before the Sexual Offences Act 2003 only where it concerned the nature or purpose of the act or amounted to impersonation of the complainant’s husband or partner. Later authorities permit some closely connected deceptions concerning the sexual act or a fundamental aspect of sexual identity to negate consent. They do not establish a general objective-and-subjective test based on whether a deception was serious and decisive for the complainant.

A fundamental enlargement of criminal liability must be made by Parliament. On judicial review, prosecutorial evidential assessments attract a substantial margin of discretion. The court will intervene only exceptionally, including for an error of law or irrationality, and must read the decision fairly and as a whole.

An undercover police officer formed a sexual relationship with the claimant while infiltrating an environmental protest movement under a false identity. The claimant said that she would never have entered the relationship had she known his true identity, occupation and beliefs.

Following a victim’s review, the Director of Public Prosecutions confirmed that there was no realistic prospect of conviction for rape, procuring sexual intercourse by false pretences, or misconduct in public office. The claimant sought judicial review. She contended that the deception vitiated consent, that the prosecutor had misconstrued procurement, and that the prosecutor had failed properly to consider official material condemning sexual relationships between undercover officers and activists.

The central issue was whether the decision not to prosecute contained an error of law or was otherwise unlawful in public law terms.

1. The application for judicial review was dismissed. Courts intervene in prosecutorial decisions only in highly exceptional circumstances. A prosecutor must direct herself correctly in law and evaluate the available material objectively, but receives a significant margin of discretion when assessing whether a jury is more likely than not to convict. A detailed decision must be read broadly and sensibly rather than subjected to excessively punctilious textual analysis.

2. Under section 1 of the Sexual Offences Act 1956, as amended and applicable in 1997, the authorities established two categories of deception capable of vitiating apparent consent: deception as to the nature or purpose of the sexual act, and impersonation of the complainant’s husband or partner. Olugboja concerned coercive submission rather than fraud and did not remove those boundaries. Elbekkay made only the incremental extension from impersonation of a husband to impersonation of a partner. Linekar confirmed the two-category approach.

3. The later authorities under section 74 of the Sexual Offences Act 2003 did not justify the claimant’s proposed test. Assange and R(F) concerned deceptions closely connected with the sexual act. McNally concerned deception about a fundamental aspect of sexual identity. No authority supported a test under which consent was absent whenever an objectively serious deception was subjectively critical to the complainant. Extending rape to such circumstances would produce a profound enlargement of criminal liability which only Parliament could make.

4. The prosecutor was entitled to conclude that procurement under section 3 of the Sexual Offences Act 1956 was unlikely to be proved. Procurement requires steps directed towards bringing about the relevant conduct. The continuing false identity formed part of the background, but the relationship developed later through mutual attraction. The prosecutor was also entitled to find insufficient evidence of an intention to procure sexual intercourse.

5. The misconduct-in-public-office assessment was neither irrational nor based on an omission of a legally material consideration. The official apology was part of the evidential material and had been considered, although the prosecutor was not required to mention it expressly. She was entitled to give greater weight to the contemporaneous Tradecraft Manual and to assess whether a jury would find the necessary seriousness and mens rea.

This was a first-instance application for judicial review of the Director of Public Prosecutions’ decision of 20 December 2017. That decision, made following a victim’s review, confirmed an earlier decision not to prosecute the interested party.