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

Under section 74 of the Sexual Offences Act 2003, a deception as to gender identity is not categorically incapable of vitiating consent. Its effect must be assessed by reference to the circumstances and evidence, including the complainant’s freedom to choose. The authorities are fact-sensitive and do not justify a hard-edged rule limiting relevant deception to the physical performance of the act. Prosecutorial guidance may explain this uncertainty and identify relevant factors without prescribing outcomes. Read objectively, as a whole and in context, the guidance accurately stated the unsettled legal position and was not misleading. The claim was dismissed.

Sex Matters sought judicial review of the DPP’s Rape and Sexual Offences guidance on deception as to sex. The claimant argued that a deception as to gender identity could never vitiate consent under section 74 of the Sexual Offences Act 2003, and that the guidance was therefore unlawful. Alternatively, it argued that the guidance presented a misleading account of the law. The DPP disputed both grounds and challenged the claimant’s standing. Permission had been granted by Linden J, and the parties focused on the TCG/2 draft intended to replace the June 2026 version. The central issues were whether the law imposed a categorical exclusion and whether the guidance misstated or materially obscured the legal position.

The Court dismissed the claim. It considered the merits before addressing standing.

1. Section 74. The appellate authorities were difficult to reconcile and highly fact-sensitive. R v McNally [2013] EWCA Crim 1051 showed that the sexual nature of an act may differ even where the physical acts are unchanged. R v Lawrance [2020] EWCA Crim 971 and R v BVA [2025] EWCA Crim 1359 pointed in different directions, and the Court was bound by both decisions. No bright line could safely be drawn. A deception as to gender identity might, depending on the facts, deprive a complainant of the freedom to choose, but the Court did not hold that it would do so in any particular case.
2. Ground 1. The Court rejected the proposed categorical rule. The close-connection approach could not be treated as a rigid abstract test confined to the strict physical performance of sexual activity. R v H was not authority because it followed guilty pleas, but it provided a useful illustration that a deception as to gender identity could extend beyond a claimed surgical history. The guidance therefore did not contain the alleged error of law.
3. Ground 2. The policy-lawfulness principles in R(A) v Secretary of State for the Home Department [2021] UKSC 37 applied. The guidance had to be read objectively, as a whole and in the context of specialist prosecutors deciding whether to charge. It accurately identified the uncertainty, stated the relevant principles, and presented examples and a three-stage approach without directing a particular outcome. The introductory discussion of trans and non-binary experiences was unusually sympathetic and might merit reconsideration, but it did not misstate the law or make the document misleading.
4. Standing. Had either ground succeeded, the claimant would have had sufficient interest. Standing was contextual, and the claimant had a genuine and particular interest, relevant expertise, and a reasonable concern in an issue of public importance. The existence of possible individual challengers did not make it an inappropriate vehicle.
5. Order. Both grounds were rejected and the claim was dismissed. The conclusions related to the TCG/2 text on which the parties had focused; the Court did not separately determine the June 2026 version.