Neutral Citation Number: [2018] EWHC 3508 (Admin)

Case No: CO/1354/2018

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 14/12/2018

Before:

THE RIGHT HONOURABLE THE LORD BURNETT OF MALDON

LORD CHIEF JUSTICE OF ENGLAND AND WALES
and
THE HONOURABLE MR JUSTICE JAY
---------------------
Between:

R (oao “MONICA”) Claimant

-and–

DIRECTOR OF PUBLIC PROSECUTIONS Defendant

-and-

ANDREW JAMES BOYLING Interested

Party

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---------------------

Phillippa Kaufmann QC and Joanna Buckley (instructed by Birnberg Peirce) for the
Claimant
Gareth Patterson QC (instructed by CPS Appeals and Review Unit) for the Defendant
Ben Brandon (instructed by Slater and Gordon LLP) for the Interested Party

Hearing dates: 13th and 14th November 2018

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Approved Judgment
 Judgment Approved by the court for handing down. Monica v DPP

LORD BURNETT OF MALDON CJ and MR JUSTICE JAY:

Introduction

1. This is an application for judicial review of the decision of the Director of Public
Prosecutions of 20 December 2017, confirming an earlier decision not to prosecute
ex-DC Andrew Boyling for the offences of rape, indecent assault, procurement of
sexual intercourse and misconduct in public office.

2. Between April and October 1997, the claimant (anonymised in these proceedings as
“Monica”, the name by which she is known in the Undercover Policing Inquiry
chaired by Sir John Mitting) and Mr Boyling were sexual partners. At the time, the
claimant was an environmental activist heavily involved in the “Reclaim the Streets”
protest movement. Mr Boyling had infiltrated that movement on the orders of his
superiors, using the pseudonym “Jim Sutton”. He met and befriended the claimant in
that capacity. The claimant was completely unaware of his real identity. The parties
gradually came together through mutual attraction and interest, and their relationship
began (as it was in due course to end) at the instigation of the claimant. Mr Boyling
successfully maintained his cover throughout this period. It was only in January 2011
and following media reports, that the claimant discovered the true position.

3. Central to the claimant’s case in these proceedings is her evidence that under no
circumstances would she have entered into any sort of relationship with Mr Boyling
had she known the truth. The fact that she believed that he shared her core beliefs
was central to her decision to enter into a relationship with him. She felt she had been
abused. She made that clear emphatically during the course of her first police
interview on 22 August 2016. There is no reason to doubt the strength of the
claimant’s feelings and that they formed the basis of the decision under challenge.

4. The narrow issue, or series of issues, for this Court is whether the Director’s decision
not to prosecute is legally flawed in public law terms. As we shall explain in due
course, the circumstances in which this Court may properly intervene – respecting the
different constitutional roles of the judiciary and the Director in the administration of
justice are circumscribed.

The Background to the Director’s Decision

5. The skeleton argument filed by Ms Phillippa Kaufmann QC on behalf of the claimant

provides a detailed chronological narrative. Its most important features, focusing as
we must on the material which was considered by the Director in December 2017, are
as follows.

6. Shortly after the end of his relationship with the claimant, Mr Boyling had a sexual
relationship with another woman, TEB, which lasted about 18 months. Shortly after
that, he had a relationship with DIL. Both were activists involved in Reclaim the
Streets.

7. In October 2011 the Metropolitan Police Service set up Operation Herne in response
to complaints about the use of undercover and covert policing tactics going back
several decades. The Operation Herne report dated March 2014 concluded that:
 Judgment Approved by the court for handing down. Monica v DPP

“There is no evidence at this time to suggest sexual

relationships between undercover officers and activists were
ever officially sanctioned or authorised by the SDS [Special
Demonstration Squad] management.

However, documents suggest that there was informal tacit

authority regarding sexual relationships and guidance was
offered for officers faced with the prospect of a sexual
relationship.

… there are and never have been any circumstances where it

would be appropriate for such covertly deployed officers to
engage in intimate sexual relationships with those they are
employed to infiltrate and target. Such an activity can only be
seen as an abject failure of the deployment, a gross abuse of
their role and their position as a police officer and an individual
and organisational failing. It is of real concern that a distinct
lack of intrusive management by senior leaders within the MPS
appears to have facilitated the development and apparent
circulation of internal inappropriate advice regarding an
underground police officers engagement in sexual
relationships.”

8. The “internal inappropriate advice” would at least include part of the internal “SDS
Tradecraft Manual” of February 1995 (updated in March 1996):

“5.6 Sexual Liaisons

5.6.1. The thorny issue of romantic entanglements during a tour

is the cause of much soul-searching and concern. In the past
emotional ties to the opposition have happened and caused all
sorts of difficulties, including divorce, deception and
disciplinary charges. Whilst it is not my place to moralise, one
should try to avoid the opposite sex for as long as possible.

5.6.3. While you may try to avoid any sexual encounter there
may come a time when your lack of interest may become
suspicious. [Gist: ‘This sentence provides advice on how to
deflect suspicion …’] [These] options are fraught with
difficulty and you must make your own mind up about how to
proceed. If you have no other option but to become involved
with a weary, you should try to have fleeting, disastrous
relationships with individuals who are not important to your
sources of information. One cannot be involved with a weary in
a relationship for any period of time without risking serious
consequences.”
 Judgment Approved by the court for handing down. Monica v DPP

9. In November 2015 the Commissioner settled claims brought by a number of women,

including TEB and DIL but not the claimant, who had had sexual relationships with
undercover police officers. A public apology was given by Assistant Commissioner
Hewitt in connection with that settlement. Amongst other things, he said this:

“I acknowledge that these relationships were a violation of the

women’s human rights, an abuse of police power and caused
significant trauma. ...

[N]one of the women with whom the undercover officers had a

relationship brought it on themselves. They were deceived pure
and simple. I want to make clear that the Metropolitan Police
does not suggest that any of these women could be in any way
criticised for the way in which these relationships developed. ...

These matters are already the subject of several investigations

including a criminal and misconduct enquiry called Operation
Herne. Undercover policing is also now subject to a judge-led
Public Inquiry which commenced on 28th July 2015. Even
before those bodies report, I can state that sexual relationships
between undercover police officers and members of the public
should not happen. The forming of a sexual relationship by an
undercover officer would never be authorized in advance nor
indeed used as a tactic of deployment. If an officer did have a
sexual relationship despite this (for example if it was a matter
of life and death) then he would be required to report this in
order that the circumstances could be investigated for potential
criminality and/or misconduct.”

10. Meanwhile, on 21 August 2014 the CPS announced its decision not to prosecute any
officer who had formed intimate relationships in these circumstances. DIL exercised
her Victim’s Right to Review but in July 2016 the CPS stated that it would not
reconsider its decision in relation to charging Mr Boyling.

11. The claimant’s first interview, to which we have referred, was given in response to an
invitation from Chief Constable Creedon, independent lead of Operation Herne.
Subsequently, Mr Boyling was interviewed in connection with the claimant’s
allegations. He provided “no comment” answers and a brief prepared statement in
which he said that he did not wish to add anything to the prepared statement he had
provided under caution on 27 April 2012. We have not seen that document, but it
formed part of the material that was before the CPS decision-makers in 2017.

12. On 28 February 2017 the claimant’s solicitors, Birnberg Peirce, wrote to Mr Nick
Vamos, Head of Special Crime and Counter Terrorism Division at the CPS, inviting
him to consider the claimant’s complaint in the context of the earlier decision in
DIL’s case not to prosecute Mr Boyling. On 4 July 2017 Mr Vamos informed
Birnberg Peirce that the CPS had decided not to prosecute the interested party. He
pointed out that much of the legal analysis provided in connection with the claimant’s
case duplicated DIL’s.
 Judgment Approved by the court for handing down. Monica v DPP

13. On 19 July 2017 the claimant sought a review of that decision. Detailed submissions
were sent to the CPS on 15 September; these expressly referred to the conclusions in
the Operation Herne Report and to AC Hewitt’s apology. On 20 December 2017 a
specialist prosecutor at the CPS notified the claimant’s solicitors that “[f]ollowing a
careful and fully independent consideration of all the available evidence, I have
concluded that the decision not to prosecute this case was in fact correct”.

The Decision under Challenge

14. The lawyer’s decision was given on the basis that the case failed at the evidential
stage of the CPS’s Code for Crown Prosecutors. The evidence did not provide a
realistic prospect of conviction. According to paragraph 4.7 of the Code, a realistic
prospect “means that an objective, impartial and reasonable jury … properly directed
and acting in accordance with the law, is more likely than not to convict the defendant
of the charge alleged”. The evidential test requires a prosecutor to second guess the
conclusion of a jury on the basis of the evidence available to the Crown and what is
known of the potential defendant’s case. That evaluation involves the application of
knowledge and expertise concerning the dynamics of a criminal trial.

15. The material before the CPS lawyer comprised “the case papers” and a range of
textbook and academic sources identified at paragraph 4 of the decision. There is no
issue between the parties as to what the case papers included although in one
particular respect Ms Kaufmann has taken issue with what was considered.

16. The CPS lawyer concluded that there was sufficient evidence from which a jury
would very likely conclude that there was a sexual relationship, that it was likely that
the jury would accept the claimant’s statement that she would not have entered into a
relationship with Mr Boyling had she known that he was a police officer, and that it
was equally likely that the jury would conclude that this was a genuine relationship
based on mutual attraction. She further concluded that Mr Boyling’s “behaviour,
considered over the period of the deception, could be considered to be so overt that it
was an active deception in all but name”.

17. The CPS lawyer analysed the claimant’s case systematically: first in connection with
the offence of rape; then the offence of procurement; and, finally, the offence of
misconduct in public office.

18. The rape allegation was governed by section 1 of the Sexual Offences Act 1956 as
amended in 1976 and 1994. The CPS lawyer considered authority starting in 1888
(when rape was a common law offence), then moved forward to the period directly
relevant to the facts of the present case (when the 1976 and 1994 amendments to the
1956 Act were applicable). She also considered the more recent period covered by
the Sexual Offences Act 2003. She was of the clear opinion that the jurisprudence
running from 1888 to 2004 established only two species of fraud that vitiated apparent
consent: first, as to nature of the sexual act, and secondly as to the identity of the
perpetrator, and that the instant case could not be accommodated within these
categories. However, the CPS lawyer also addressed subsequent authorities “with a
view to assessing whether the [2003 Act case law] can provide any wider or indirect
assistance on the application of the meaning of consent”. Her conclusion was that the
deception underlying the relationship in issue in this case was not such as could vitiate
consent, whether judged according to the understanding of the law as it was at the
 Judgment Approved by the court for handing down. Monica v DPP

time of the events in question, or by reference to the statutory test found in section 74
of the 2003 Act and recent Court of Appeal decisions. The decision proceeded on the
assumption that the provisions in the 2003 Act defining consent were declaratory of
the law with the consequence that they wrought no change in the meaning of consent
as compared with the 1956 Act as amended.

19. The offence of procurement of unlawful sexual intercourse by false pretences or false
representations was found in section 3 of the Sexual Offences Act 1956. The offence
did not survive into the 2003 Act. The CPS lawyer’s reasoning was that “there was
very strong evidence” against the proposition that field officers were expressly
directed to procure women to have sexual intercourse, by false pretences or otherwise,
in order to obtain intelligence. She stated that a relationship based on mutual
attraction is the “antithesis of procurement”. Further:

“54. There is nothing in Monica’s account which suggests that

the suspect procured her at all, let alone used false activism in
order to do so. On the contrary, their relationship began as
many do: slowly getting to know each other and, for Monica, it
was the suspect’s absence that made her heart grow fonder, not
any procurement on his part. The suspect’s false pretence of
being an environmental activist provided nothing more than the
circumstances for them to meet on sufficient occasions to foster
a relationship; it was entirely incidental to the establishment of
their sexual relationship.

55. Monica states that she would not have entered into a
relationship with the suspect if she had known he was a police
officer and in my view, a jury is likely to accept this. Her
account of the relationship, particularly its brevity and the fact
that it was she who ended it, does not suggest that at any stage
she was so enamoured of him that she would have overlooked
his occupation. However, that does not mean he procured her
by his pretence. Due to the need for the false pretence to be the
trigger that the person, with intent, employs to cause the
woman to agree to the act of sexual intercourse, it is difficult to
see in what circumstances an implied false pretence could form
the basis of the offence because of the difficulty in proving
mens rea. ...

57. The facts of this case are very different [from the promise
of marriage cases]. The mutual agreement to embark upon a
sexual relationship occurred in the context of a modern day
relationship; such agreements are rarely concluded upon the
determination of a clear-cut precondition from which intent to
procure could be readily inferred. In this case, even if the jury
found that Monica was procured into having a sexual
relationship, which in my view they would not, they would be
more likely than not to conclude that the suspect did not intend
to procure her by his deception.”
 Judgment Approved by the court for handing down. Monica v DPP

20. The CPS lawyer identified relevant authorities governing misconduct in public office.
She proceeded to analyse whether the conduct in question was of such a degree as to
amount to an abuse of the public’s trust in the office holder. An undercover officer
was bound to establish friendships with those within the target organisation. She
thought it “obtuse” not to acknowledge that officers undercover for years might
develop sexual relationships; the more so in organisations whose supporters may have
“modern attitudes about sexual behaviour”.

21. The CPS lawyer considered that there was a wider duty, as she put it, to take into
account the degree to which the actions of an undercover officer intruded into the
lives of members of the public. Given the likelihood of some sexual relationships:

“71. … in my view it is difficult to articulate after the fact, or

prescribe in advance, what sort of behaviour the officer would
have to display to take him outside the necessarily rather blurry
edges of acceptable conduct to such a degree that his behaviour
amounts to an abuse of his office.”

22. She did not discount the possibility that behaviour of this sort might be regarded as
criminal. But the present case did not fall into this category:

“73. In my view a jury is more likely than not to conclude that

the suspect’s behaviour does not amount to misconduct in
public office. This was a short-lived relationship, ended by
Monica for her own personal reasons, which the evidence
demonstrates was entered into for no reason other than genuine
feelings on the suspect’s part.”

23. Furthermore, the CPS lawyer concluded that there was no realistic prospect of
proving mens rea. Specifically:

“74. In my view a jury is likely to conclude that there is very

strong evidence that the suspect lacked the mens rea, in that he
did not wilfully misconduct himself. His account in his
prepared statement is supported by the weight of the evidence
relating to the practice and procedure within the SDS.

75. Further, in my view, a jury is likely to conclude that the

evidence provides strong support for the suspect’s account that
the only sources of information and advice he had access to
were from within the SDS. …”

24. In the final concluding section of her letter the CPS lawyer summarised the position
under these three potential criminal offences in terms of there being “insufficient
evidence to provide a realistic prospect of conviction”.

25. The CPS lawyer did not refer expressly to the conclusion in the Operation Herne
report or to AC Hewitt’s public apology. As we have said, these matters were drawn
to her attention, and Birnberg Peirce’s letter of 15 September 2017 formed part of
what she called the “case papers”. At paragraph 8.17 of the pre-action protocol letter
dated 19 February 2018, it was said that the decision failed “to address, or even
 Judgment Approved by the court for handing down. Monica v DPP

acknowledge” this material. On 28 February Mr Frank Ferguson, Deputy Head of the

Special Crime and Counter Terrorism Division, restated the CPS lawyer’s conclusions
in relation to the offence of misconduct in public office, and continued:

“We remain of the view that for the reasons set out above, a
jury would be unlikely to conclude that in the particular
circumstances of this case Boyling’s behaviour amounted to
misconduct in a public office. Our view on this matter is
unaffected by any of the representations you make in your
letter.”

Relevant Legislative Provisions

26. Section 1 of the Sexual Offences Act 1956 provided:

“(1) It is a felony for a man to rape a woman.

(2) A man who induces a married woman to have sexual

intercourse with him by impersonating her husband commits
rape.”

Given that the offence under subsection (1) was not statutorily defined, the position at
common law remained relevant.

Further, by section 3:

“(1) It is an offence for a person to procure a woman, by false

pretences or false representations, to have unlawful sexual
intercourse in any part of the world.”

27. Section 1 of the Sexual Offences (Amendment) Act 1976 provided:

“Meaning of ‘rape’ etc.

(1) For the purposes of section 1 of the Sexual Offences Act

1956 (which relates to rape) a man commits rape if-

(a) he has unlawful sexual intercourse with a woman who at the

time of the intercourse did not consent to it; and

(b) at that time he knows that she does not consent to the
intercourse or he is reckless as to whether she consents to it;
and references in other enactments [including the 1956 Act]
shall be construed accordingly.

(2) It is hereby declared that if at a trial for a rape offence the

jury has to consider whether a man believed that a woman
was consenting to sexual intercourse, the presence or
absence of reasonable grounds for such a belief is a matter
to which the jury is to have regard, in conjunction with
other relevant matters, in considering whether he so
believed.”
 Judgment Approved by the court for handing down. Monica v DPP

Thus, for the first time the offence of rape received a statutory definition, but the
meaning of “consent” did not. There is no reason to suppose that Parliament
intended any change in the understanding of consent that had developed under the
common law.

28. Section 142 of the Criminal Justice and Public Order Act 1994 substituted the
following section for section 1 of the 1956 Act:

“1 Rape of woman or man

(1) It is an offence for a man to rape a woman or another man.

(2) A man commits rape if-

(a) he has sexual intercourse with any person (whether vaginal or

anal) who at the time of the intercourse does not consent to it;
and

(b) at the time he knows that the person does not consent to the
intercourse or is reckless as to whether that person consents to
it.

(3) A man also commits rape if he induces a married woman to

have sexual intercourse with him by impersonating her
husband.

(4) Subsection (2) applies for the purpose of any enactment.”

29. This is the statutory provision which was in force at the time of the intimate
relationship with which this case is concerned.

30. Finally, by section 1 of the Sexual Offences Act 2003, which came into force on 1
May 2004 (by Schedule 7, all the relevant sections of the 1956 and 1976 Acts were
repealed with prospective effect):

“1 Rape

(1) A person (A) commits an offence if—

(a) he intentionally penetrates the vagina, anus or mouth of

another person (B) with his penis,

(b) B does not consent to the penetration, and

(c) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having

regard to all the circumstances, including any steps A has taken
to ascertain whether B consents.

(3) Sections 75 and 76 apply to an offence under this section.”

 Judgment Approved by the court for handing down. Monica v DPP

31. Sections 74 to 76 provide:

“74 ‘Consent’

For the purposes of this Part, a person consents if he agrees by

choice, and has the freedom and capacity to make that choice.

75 Evidential presumptions about consent

(1) If in proceedings for an offence to which this section

applies it is proved—

(a) that the defendant did the relevant act,

(b) that any of the circumstances specified in subsection (2)

existed, and

(c) that the defendant knew that those circumstances existed,

the complainant is to be taken not to have consented to the

relevant act unless sufficient evidence is adduced to raise an
issue as to whether he consented, and the defendant is to be
taken not to have reasonably believed that the complainant
consented unless sufficient evidence is adduced to raise an
issue as to whether he reasonably believed it.

(2) The circumstances are that—

(a) any person was, at the time of the relevant act or

immediately before it began, using violence against the
complainant or causing the complainant to fear that immediate
violence would be used against him;

(b) any person was, at the time of the relevant act or

immediately before it began, causing the complainant to fear
that violence was being used, or that immediate violence would
be used, against another person;

(c) the complainant was, and the defendant was not, unlawfully
detained at the time of the relevant act;

(d) the complainant was asleep or otherwise unconscious at the

time of the relevant act;

(e) because of the complainant’s physical disability, the

complainant would not have been able at the time of the
relevant act to communicate to the defendant whether the
complainant consented;

(f) any person had administered to or caused to be taken by the

complainant, without the complainant’s consent, a substance
which, having regard to when it was administered or taken, was
 Judgment Approved by the court for handing down. Monica v DPP

capable of causing or enabling the complainant to be stupefied

or overpowered at the time of the relevant act.

(3) In subsection (2)(a) and (b), the reference to the time

immediately before the relevant act began is, in the case of an
act which is one of a continuous series of sexual activities, a
reference to the time immediately before the first sexual
activity began.

76 Conclusive presumptions about consent

(1) If in proceedings for an offence to which this section

applies it is proved that the defendant did the relevant act and
that any of the circumstances specified in subsection (2)
existed, it is to be conclusively presumed—

(a) that the complainant did not consent to the relevant act, and

(b) that the defendant did not believe that the complainant
consented to the relevant act.

(2) The circumstances are that—

(a) the defendant intentionally deceived the complainant as to

the nature or purpose of the relevant act;

(b) the defendant intentionally induced the complainant to

consent to the relevant act by impersonating a person known
personally to the complainant.”

For the first time the concept of “consent” was statutorily defined. As we shall
explain, section 76(2) reproduces common law concepts that have their roots in the
late nineteenth century.

The Claimant’s Challenge

32. The claimant advances two judicial review grounds:

(1) The Director erred as a matter of law in concluding that the interested party’s
deception did not vitiate consent. It follows that there is a realistic prospect that a
reasonable jury would convict him of the offence of rape.

(2) The Director failed to take into account relevant considerations, and failed to
address or take into account the factors and reasoning provided in the claimant’s
detailed review submissions, in two particular respects: (i) the interested party
conducted relationships with at least three women who were part of the Reclaim
the Streets movement, and (ii) the Metropolitan Police have stated publicly that
intimate sexual relationships by undercover officers with those whom they were
monitoring were prohibited.

33. In developing her first ground, Ms Kaufmann submitted that this court was in as good
a position as the Director to rule on what was, in essence, a pure question of law. She
 Judgment Approved by the court for handing down. Monica v DPP

referred us to much of the key jurisprudence on consent in rape and assault cases,
including R v Clarence [1888] 22 QBD 23, R v Olugboja [1982] QB 320, R v
Elbekkay [1995] Crim LR 163, R v Linekar [1995] QB 250, R v Richardson [1999]
QB 444, R v Jheeta [2008] 1 WLR 2582, Assange v Swedish Prosecution Authority
[2011] EWHC 2849 (Admin), R(F) v DPP [2014] QB 581 and R v McNally [2014]
QB 593.

34. It was common ground that the state of the law at the end of the nineteenth century
was that deception operated to negate or vitiate consent only in two circumstances:
first, in cases of impersonation, where the defendant pretended to be the victim’s
husband; and secondly, in cases where the deception was as to the nature and purpose
of the act. This second category applied to situations where the defendant deceived
the victim into believing that the act in question was a surgical or medical procedure
rather than, in the language of the age, “connection”. In both types of case the victim
did not consent to the act of sexual intercourse.

35. Ms Kaufmann’s headline submission was that in interpreting the meaning of the word
“consent” in the 1956 Act (as amended in 1994) the law should recognise that the
narrowness of these categories does not reflect modern notions of freedom of choice
and autonomy. They also fail to recognise, she submits, the differences between
female and male decisions about sexual relationships. She suggests that the former
are more considered than the latter, less affected by physical appearance and more by
a range of characteristics of the potential partner. Mr Boyling’s deception as to his
identity, understood in this broad sense, was fundamental – he was not “hunt sab Jim”
but undercover DC Boyling. Absent this key deception, no sexual relationship would
have started. It follows, Ms Kaufmann submitted, that his deception served to negate
or vitiate the claimant’s consent.

36. Ms Kaufmann’s suggested test for ascertaining the absence of consent in a deception
case of this sort evolved as the oral argument progressed. Its final resting place was
based on the following two propositions. The first was that the matter to which the
deception related must be sufficiently serious in objective terms as to be capable as
being regarded as relevant to a woman’s decision-making. She suggested that the
application of this objective test would exclude a lie about personal wealth or social
status but include marital status. As for the present case, it could scarcely be
doubted that a state-sponsored deception of this sort should be regarded as sufficiently
serious. The second proposition was that consent would be absent in a case where,
viewed in subjective terms, the deception went to a matter which the woman regarded
as critical or fundamental to her decision-making in line with her individual
autonomy. Thus, applying the second stage of this analysis to the facts of this case, it
was clear on the available evidence that the claimant regarded the genuineness of the
interested party’s radical, street protest and/or environmental credentials as central to
her wish to start a relationship with him.

37. There is no sign of this formulation in any of the authorities either before or after the
passage of the 2003 Act, nor were we shown any materials that suggest that
Parliament legislated on this basis. But Ms Kaufmann submitted that a proper
analysis of the decision of the Court of Appeal in Olugboja demonstrates that the
interpretation of “consent” was freed from any earlier shackles and can accommodate
the formulation advanced on behalf of the claimant. She submitted that Olugboja
decided that the issue of consent was one of fact for the jury; that a jury should be
 Judgment Approved by the court for handing down. Monica v DPP

directed to concentrate on the state of mind of the victim immediately before the act
of sexual intercourse; and that (by necessary implication) it was not a question of
applying any fixed or rigid categorisations. To the extent that later Court of Appeal
cases appeared inconsistent with that approach, they should not be followed. In
particular, Linekar was a case where the categories of deception which vitiate consent
were narrowly defined. Although Olugboja was cited in Linekar its core reasoning
was effectively ignored. In Elbekkay the Court of Appeal applied the (correct)
Olugboja approach, and – more importantly perhaps – the post-2003 Act decisions of
the Court of Appeal in Assange and McNally, and of this Court in R(F), which was a
challenge to a decision not to prosecute, were all on the same track.

38. Alternatively, if Linekar correctly represents the law in propounding two categories
for the purposes of a prosecution under the 1956 Act, the impersonation category
should be broadened in modern conditions to cover deceptions as to identity in this
kind of situation. As it was put in oral argument, “deceptions as to identity should be
released from the constraints imposed by the nineteenth century cases, and no longer
seen through a prism imposed or written by men”.

39. It followed that the CPS lawyer made an error of law in concluding that the
circumstances of this case could not, as a matter of law, vitiate consent. In the
unusual circumstances of this case, Mr Boyling’s deception was operative, serious
and of a critical importance to the claimant’s decision to start a relationship with him.

40. Ms Kaufmann took her second ground more shortly. In relation to the offence of
procurement, first, it was clear that the sexual relationship would not have started but
for the false pretences (this was necessary but not sufficient to found criminal
liability). Secondly, the fact the relationship may have been based on mutual
attraction did not mean that sexual intercourse had not been procured by falsity. All
the relevant circumstances should be considered, including those which arose at a
much earlier stage in the course of events. Thirdly, if all relevant circumstances were
properly considered, Mr Boyling’s accompanying mens rea could be proved to the
requisite standard because he must have appreciated that the claimant would not have
agreed to the relationship had she known the truth, or he was reckless as to that fact.

41. The claimant did not pursue her original formulation of the second ground, namely
that the Director failed to take into account the later relationships with TEB and DIL.
She was right not to press this point because the written riposte of Mr Gareth
Patterson QC for the Director is clearly correct. The lawyer was entitled to conclude
on the available evidence that Mr Boyling had genuine feelings for the claimant, and
the fact that he had subsequent relationships in similar circumstances does not
contradict this. The CPS’s letter dated 28 February 2018 confirms that these later
matters were considered in December 2017 but did not affect the conclusion.

42. As for the contention that the Director failed to take the public statement of Assistant
Commissioner Hewitt into account, Ms Kaufmann was highly critical of the
suggestion that it would be “obtuse” not to acknowledge that relationships of this
nature would take place, and that women in these organisations tend to have “modern
attitudes”. Aside from what is said to be the insulting language, Ms Kaufmann
submitted that it did not address the real question here, which is whether sexual
relationships crossed a “red line”. She submitted on the basis of AC Hewitt’s apology
and the Tradecraft Manual that there was clear evidence that this conduct was
 Judgment Approved by the court for handing down. Monica v DPP

proscribed, and that it was not a matter of discerning whether the interested party’s
conduct took him “outside the necessarily blurry edges of acceptable conduct” to such
a degree as to amount to an abuse of office. Ms Kaufmann submitted that either the
public apology was ignored, or that if it was taken into account the decision was
perverse. Finally, Ms Kaufmann submitted that these errors infected the conclusion on
mens rea.

The Case for the Defendant and the Interested Party

43. Mr Patterson and Mr Ben Brandon (for the interested party) submitted that the
deception involved in this case was not such as could negative consent for the
purposes of rape. The lawyer made no error of law. To the extent that her
conclusions, echoing those of the earlier and different decision maker, called for the
evaluation of the evidence, they could not be faulted. Mr Brandon had an alternative
submission. He submitted that the 2003 Act “fundamentally changed the law on
consent, so that cases which could not have been successful under the common law
resulted in convictions”. In oral argument he submitted that it would breach article 7
of the European Convention on Human Rights (prohibition against retrospective
change of the criminal law) to take into account subsequent developments in the
understanding of consent because the interested party could not reasonably have
foreseen them. In the event, it will not be necessary to decide these issues.

Discussion

Judicial Review of Prosecutorial Decisions

44. The circumstances in which this Court will intervene in relation to prosecutorial
decisions are rare indeed. The principle of the separation of powers leads, as Sir John
Thomas PQBD (as he then was) put it in L v DPP [2013] EWHC 1752 (Admin) at [7]
to the adoption of a “very strict self-denying ordinance”.

45. An authoritative statement of this principle, and its application to cases of this type,
was given by Lord Bingham of Cornhill in R (Corner House Research) v SFO [2009]
1 AC 756 in the following passages:

“30. It is common ground in these proceedings that the Director

is a public official appointed by the Crown but independent of
it. He is entrusted by Parliament with discretionary powers to
investigate suspected offences which reasonably appear to him
to involve serious or complex fraud and to prosecute in such
cases. These are powers given to him by Parliament as head of
an independent, professional service who is subject only to the
superintendence of the Attorney General. There is an obvious
analogy with the position of the Director of Public
Prosecutions. It is accepted that the decisions of the Director
are not immune from review by the courts, but authority makes
plain that only in highly exceptional cases will the court disturb
the decisions of an independent prosecutor and investigator: R v
Director of Public Prosecutions, Ex p C [1995] 1 Cr App R 136
, 141; R v Director of Public Prosecutions, Ex p Manning
[2001] QB 330 , para 23; R (Bermingham) v Director of the
 Judgment Approved by the court for handing down. Monica v DPP

Serious Fraud Office [2007] QB 727 , paras 63–64; Mohit v

Director of Public Prosecutions of Mauritius [2006] 1 WLR
3343 , paras 17 and 21 citing and endorsing a passage in the
judgment of the Supreme Court of Fiji in Matalulu v Director
of Public Prosecutions [2003] 4 LRC 712 , 735–736; Sharma v
Brown-Antoine [2007] 1 WLR 780, para 14(1)-(6). The House
was not referred to any case in which a challenge had been
made to a decision not to prosecute or investigate on public
interest grounds.

31. The reasons why the courts are very slow to interfere are
well understood. They are, first, that the powers in question are
entrusted to the officers identified, and to no one else. No other
authority may exercise these powers or make the judgments on
which such exercise must depend. Secondly, the courts have
recognised (as it was described in the cited passage from
Matalulu v Director of Public Prosecutions)

“the polycentric character of official decision-making in such

matters including policy and public interest considerations
which are not susceptible of judicial review because it is within
neither the constitutional function nor the practical competence
of the courts to assess their merits.”

Thirdly, the powers are conferred in very broad and

unprescriptive terms.

32 Of course, and this again is uncontroversial, the discretions

conferred on the Director are not unfettered. He must seek to
exercise his powers so as to promote the statutory purpose for
which he is given them. He must direct himself correctly in
law. He must act lawfully. He must do his best to exercise an
objective judgment on the relevant material available to him.
He must exercise his powers in good faith, uninfluenced by any
ulterior motive, predilection or prejudice. In the present case,
the claimants have not sought to impugn the Director's good
faith and honesty in any way.”

46. We distil the additional propositions from the authorities and the principles
underlying them:

(1) particularly where a CPS review decision is exceptionally detailed, thorough, and
in accordance with CPS policy, it cannot be considered perverse: L at [32].

(2) a significant margin of discretion is given to prosecutors L: at [43].

(3) decision letters should be read in a broad and common sense way, without being
subjected to excessive or overly punctilious textual analysis.
 Judgment Approved by the court for handing down. Monica v DPP

(4) it is not incumbent on decision makers to refer specifically to all the available
evidence. An overall evaluation of the strength of a case falls to be made on the
evidence as a whole, applying prosecutorial experience and expert judgment.

47. Lord Bingham recognised that prosecutorial decisions may be corrected for error of
law, and a rare example of such a case was cited to us. In R(F) v DPP the claimant,
who did not wish to become pregnant, consented to her husband having sexual
intercourse with her on the basis only that he would withdraw before ejaculating.
During intercourse he stated that he would not do so. He ejaculated before she could
object or do anything about it, and she became pregnant as a result. The Director’s
decision not to prosecute was quashed by this Court because the decision-maker had
misconstrued “consent” within section 74 of the 2003 Act. This was a question of
legal analysis rather than of evidential evaluation. We will need to return to this
authority because Ms Kaufmann relies on it in support of her overarching submission
on her first ground. What it demonstrates is that prosecutorial decisions are not
immune from challenge in a sufficiently clear-cut case.

Ground 1

48. The CPS lawyer’s approach was to consider the position under the Sexual Offences
Act 1956 and at common law before addressing whether the case law under the
Sexual Offences Act 2003 might assist the claimant’s case in what was said to be a
wider or indirect way. We will do the same even though it was an approach which, at
least arguably, may have been unduly favourable to the claimant. It assumed that the
2003 Act did no more than restate and clarify the meaning of “consent” rather than
alter or advance it. Although that assumption may be correct any prosecution would
have to be under the 1956 Act as amended. There is no decided case which holds in
terms that the 2003 Act has made no difference to the notion of “consent”. There is a
possible indication in Assange that the 2003 Act has made a difference, and there
must at least be room for the argument that the abolition of the offence of
procurement may have widened the scope of the offence of rape.

49. In the context of the common law and the 1956 Act, was the CPS lawyer correct in
concluding that “there is a clear and consistent line of authority that only two frauds
are capable of vitiating consent, fraud as to the nature of the sexual act and fraud as to
the identity of the perpetrator (impersonation of husband or partner)”, as she put it? In
our view, this was undoubtedly the position at common law before the 1956 Act came
into force, and on our understanding, Ms Kaufmann does not advance any contrary
proposition in relation to the period between 1956 and before Olugboja was decided
in June 1981.

50. In R v Dee [1884] 14 LR Ir 468 the Court for Crown Cases Reserved in Ireland
decided that a woman who consented to sexual intercourse in circumstances where a
stranger was impersonating her husband did not give a valid consent in law, and that
defendant was therefore guilty of rape. The principle was clearly explained by Palles
CB in the following terms:

“I think it follows that … an act done under the bona fide belief
that it is another act different in its essence is not in law the act
of the party. That is the present case – a case which it is hardly
necessary to point out is not that of consent in fact sought to be
 Judgment Approved by the court for handing down. Monica v DPP

avoided for fraud, but one in which that which took place never
amounted to consent. The person by whom the act was to be
performed was part of its essence. The consent of the intellect,
the only consent known to the law, was to the act of the
husband only, and of this the prisoner was aware. As well put
by Mr Curtis, what the woman consented to was not adultery
but marital intercourse. … Compare the case now with R v
Flattery [1877] 2 QBD 410, a decision subsequent to any of
those relied on by the prisoner. In it the act to which the
consent was given, one of medical treatment, was different in
nature from the act committed, and on this difference in nature
the case turned. … I cannot entertain any doubt that the
violation by a stranger of the person of a married woman is, in
the view of that law, as it is in morality, an act different in
nature from the lawful act of the husband. If this is so, R v
Flattery rules this case.”

51. The narrowness of this principle is demonstrated by the decision of all 13 members of
the Queen’s Bench Division on a case stated by the Recorder of London in R v
Clarence [1888] 22 QBD 23 where, by a majority of 9 judges to 4, it was held that a
man who did not tell his wife that he was suffering from gonorrhoea did not commit
an offence under either sections 20 or 47 of the Offences against the Person Act 1861.
By express parity of reasoning, had the defendant been charged with rape no offence
would have been committed.

52. The leading judgments in Clarence were delivered by Wills and Stephen JJ. Both
rejected the generality of the proposition that fraud vitiates consent. The absence of
consent principle was specifically limited - as it was in Dee – to cases of fraud as to
the nature of the act or as to the identity of the agent (per Stephen J at 44-45). This
was because:

“I should myself prefer to say that consent in such cases does

not exist at all, because the act consented to is not the act done.
Consent to a surgical operation or examination is not a consent
to sexual connection or indecent behaviour. Consent to
connection with a husband is not consent to adultery.” [per
Stephen J, at 44]

Furthermore, the application of any broader principle would bring cases of bigamy
and seduction within the scope of rape, would generate “very subtle metaphysical
questions” (per Wills J at 29), and would give rise to both conceptual and practical
difficulties as to where to draw the line. The claimant does not shy from the
proposition that all bigamous marriages (discounting the perhaps theoretical cases
where the status would not matter to the non-bigamous party) would involve the
commission of countless sexual offences. To our minds the practical difficulties
adverted to by Wills J must be confronted in connection with a false representation
from one party that he or she is not married or perhaps even in a long-term
relationship. There are many who would draw the line unequivocally at sleeping with
someone who was married or committed to another.
 Judgment Approved by the court for handing down. Monica v DPP

53. Cases decided over the next ninety years or so did not broaden the common law in
any material respect. For the claimant, the sea-change was brought about by the
decision of the Court of Appeal in R v Olugboja. The facts of that case were that two
young men met two young women at a club, offered to take them home but instead
drove them to a bungalow. They refused to go in and began walking away. The
women were followed and one of them was dragged into a bedroom. The other, the
complainant in the case, was told by the defendant that he was going to have
intercourse with her. She asked him to leave her alone. Sexual intercourse then took
place in circumstances where the defendant did not use or threaten force, and the
complainant did not scream or struggle. The issue was whether coerced acquiescence
of the sort exemplified in that case amounted to consent.

54. The trial judge summed up on the basis that the question of consent was one of fact
for the jury to decide in a common-sense way, applying their own experience and
knowledge of human nature. The case advanced on behalf of the appellant was that
this was a misdirection. He relied on a line of cases extending over more than 100
years which suggested that the type of threat needed to vitiate consent was limited to
threats of violence to the victim or a near relative. Here there were none. Dunn LJ,
giving the judgment of the Court, disagreed, and affirmed the trial judge’s direction.
In particular:

“They should be directed that consent, or the absence of it, is to

be given its natural ordinary meaning and if need be, by way of
example, that there is a difference between consent and
submission; every consent involves a submission, but it by no
means follows that a mere submission involves consent. …
They should be directed to concentrate on the state of mind of
the victim immediately before the act of sexual intercourse,
having regard to all the relevant circumstances; and, in
particular, the events leading up to the act and her reaction to
them showing their impact on her mind. [at 332A-D]”

55. Ms Kaufmann submitted that the effect of Olugboja is that the issue of consent is
reduced in all cases of rape to a straightforward examination of the woman’s state of
mind at the critical time, and the factors operating upon it. She said that this authority
is inconsistent with an approach which relies on narrow categories or classes of case.
Aside from her analysis of the case, she drew attention to academic literature
contending that it brought about a new approach.

56. We are unable to accept Ms Kaufmann’s submissions on Olugboja, and for this
straightforward reason. Although the Court of Appeal stated at the outset of its
judgment that the issue of law raised by the appeal was whether “it is necessary for
the consent of the victim of sexual intercourse to be vitiated by force, the fear of
force, or fraud; or whether it is sufficient to prove that in fact the victim did not
consent” [at 325H], the facts of Olugboja had nothing to do with fraud, and cases
such as Dee and Flattery were not cited. This was because they were irrelevant. The
issue in Olugboja was whether the absence of an overt threat of force, or of any
obvious resistance by the victim, meant that the judge’s formulation was too wide.
The evidence was that the victim did not consent because the situation in which she
found herself was hostile, and the defendant knew that because he had created it. The
 Judgment Approved by the court for handing down. Monica v DPP

directions recommended by Dunn LJ were crafted for that type of case and not with
deception about status, underlying beliefs or philosophy etc. in mind.

57. The original argument advanced on behalf of the claimant, which was refined to the
two-stage approach we have summarised above in paragraph 36, was that this
decision supported a simple test directed at the state of mind of the complainant. If
the deception was decisive in securing agreement to sex, that would be sufficient to
vitiate consent. Miss Kaufmann recognised the difficulty with that approach because
there are, no doubt, many who regard characteristics which most would say are
superficial as decisive in choosing sexual partners. The broad language of the passage
we have quoted, taken out of context, can be woven into support for the broad original
submission. It provides no support for the two-stage test contended for.

58. We were shown Professor Jennifer Temkin’s book, Rape and the Legal Process, 2nd
Edition. She suggests that Olugboja “is radical in that it appears to seek to overturn
the old approach of the common law altogether”. Her summary of the position at
common law, set out in seven propositions, does not cover cases of fraud. She also
points out that Olugboja has received a mixed welcome by academics. In a wide-
ranging paper published in Legal Studies in 1996, Appreciating Olugboja, Professor
Simon Gardner suggests that this case is now the leading contemporary authority on
the subject, articulating a view of consent which “looks to the victim’s own
perception of her interests”. However, later cases such as Linekar have hewn more
closely to older values “such as determinacy and the wish to treat like cases alike”.
Professor Gardner expressly recognises that the facts of Olugboja entailed pressure of
a non-specific kind. He also acknowledges that extending this authority to other
situations such as deception and mistake would involve extrapolation. He suggests
that the law has not yet arrived at a universal treatment of the issue of consent which
exhibits “dialectical consistency”. Interesting and valuable as these commentaries are,
and no doubt there are many more, they do not provide real assistance in resolving the
issue of law before us.

59. Ms Kaufmann also relied on Elbekkay which was decided in September 1994. The
facts of that case were a variant of Dee save that the impersonation was of the
victim’s partner, and not spouse. Section 1(2) of the Sexual Offences Act 1956 was
limited to cases involving the impersonation of a husband. The judgment of the Court
of Appeal was delivered by McCowan LJ. Having reviewed Dee and the decision of
the High Court of Australia in Papadimitropolous v R [1958] 98 CLR 249 (where the
deception was as to marital status), he cited the test in Olugboja and wholly agreed
with the ruling of the trial judge who had concluded that there could be no
fundamental difference between fraud in relation to a husband and a regular partner:

“It would be wholly contrary to modern attitudes and values at

which the law should seek to reflect where possible. It would
also very seriously curtail or interfere with the right of
women to choose, understanding the true facts, whether to
participate or not in the act of sexual intercourse.”
[emphasis supplied]

McCowan LJ added:
 Judgment Approved by the court for handing down. Monica v DPP

“[W]e think it would be extraordinary for us to come to any

other conclusion in 1994. How could we conscientiously hold
that it is rape to impersonate a husband in the act of sexual
intercourse, but not if the person impersonated is merely, say,
the long-term, live-in lover, or even in the modern idiom, the
‘partner’ of the woman concerned?

The vital point about rape is that it involves the absence of

consent. That absence is equally crucial whether the woman
believes that the man she is having sexual intercourse with is
her husband or another.” (page 7)

60. The sentence we have highlighted assists the claimant’s argument but only when it is
considered in isolation. The issue for the Court of Appeal was whether the common
law should be extended to cover non-married partners, notwithstanding the terms of
section 1(2) of the 1956 Act, in a situation which was otherwise on all fours with Dee.
The ratio of the decision was that there was no reason in the modern age to insist on
the fact of marriage when the impersonation negated consent. Section 1(2) was
declaratory of one aspect of the common law relating to consent. But Parliament was
not taken to have set in stone the limits of fraud as to the identity of the perpetrator of
the act. Properly understood, this was a modest and incremental extension of the
common law, not a major advance. Given that the principle applied by the Court of
Appeal – “the right of the women to choose, understanding the true facts” – is so
embedded in these particular facts, we do not consider that Elbekkay advances the
claimant’s argument.

61. Six weeks after Elbekkay came the decision of the Court of Appeal in Linekar. The
facts were that a woman, who was working as a prostitute, consented to sexual
intercourse but only on the basis that she was paid but did not insist upon advance
payment. The defendant had no intention of honouring his promise to pay. The
defendant’s appeal against conviction was allowed on the basis that his fraud did not
touch his identity or the nature and purpose of the act.

62. Morland J, giving the judgment of the Court, reviewed Flattery, Dee, Clarence and
Olugboja, as well as the Fifteenth Report of the Criminal Law Revision Committee on
Sexual Offences dated December 1984, which recommended that it was for
Parliament expressly to state which cases of consent obtained by fraud should amount
to rape. The Court concluded:

“In our judgment, it is the non-consent to sexual intercourse

rather than the fraud of the doctor or choir master that makes
the offence rape. Similarly, that ingredient is not proved in the
husband impersonation cases because the victim did not
consent to sexual intercourse with the particular man who
penetrated her. We venture to suggest that at common law it is
immaterial whether the penetrator is impersonating a husband,
a cohabitee or a lover, as is supported by the Criminal Law
Revision Committee …” [at 255G-H]

Pausing there, it seems that the Court was unaware that this last point had recently
been determined in Elbekkay. Further:
 Judgment Approved by the court for handing down. Monica v DPP

“In our judgment, applying those dicta [in Dee] to the facts of
the present case, here there was consent by the prostitute to
sexual intercourse, consensus quoad hoc. There was consent by
the prostitute to sexual intercourse with this particular appellant
consensus quoad hanc personam. The so-called ‘medical
cases’, such as Flattery … are examples of no consensus quoad
hoc. The husband impersonation cases are examples of no
consensus quoad personam.” [at 257B-C]

63. The claimant points out that on the facts of Linekar the identity of the defendant was
irrelevant to the woman’s consent. The case was not about wider questions of sexual
autonomy: for the woman, the only issue was whether the man would pay. However,
Linekar expressly limits the principle of fraud and absence of consent to the two
categories expounded in the earlier cases, and abstains from extending it into areas
which would have troubled Wills and Stephens JJ.

64. Ms Kaufmann submitted that if Olugboja and Linekar cannot be reconciled we should
follow Olugboja, which came first in time. There are a number of difficulties with that
submission, not least that Linekar was not decided per incuriam, none of the Young v
Bristol Aeroplane exceptions apply (and in any case we are not sitting in the Court of
Appeal), and Olugboja was not, as we have explained, a fraud or deception case at all.

65. In our judgement, there is a consistent line of authority under common law and the
Sexual Offences Act 1956 – including but not limited to Flattery, Dee, Clarence and
Linekar – which supports the proposition stated by the CPS lawyer that “only two
frauds are capable of vitiating consent”; and there is no authority which indicates or
suggests otherwise.

66. The next question, as the CPS lawyer correctly identified, is whether cases decided
under the Sexual Offences Act 2003 provide “any wider or indirect assistance”.

67. In R v Jheeta, the victim complied with the defendant’s instructions, given in text
messages where he was posing as a police officer, to the effect that she should have
sexual intercourse with him. These offences were committed either side of the coming
into force of the 2003 Act; and, in relation to the pre-May 2004 period, they were
charged as procurement under section 3 of the 1956 Act and not as rape. The Court of
Appeal was not invited to consider the safety of those convictions. As for the post-
May 2004 offences, these were charged as rape under the 2003 Act, and the issue was
whether the conclusive presumption in section 76(2)(a) applied. It was held that it did
not, because there was no deception as to the nature or purpose of the intercourse.
The facts were extraordinary. The appellant had pleaded guilty on the advice of
counsel who had taken a view of section 76(2)(a) which turned out to be wrong. But
that was not the end of the matter because there was clear evidence that the
complainant had been pressurised into having sex with the appellant in circumstances
which properly called into question whether there was real consent on a number of
occasions. In the course of his judgment Sir Igor Judge P (as he then was) noted the
prosecution argument at [20]:

“Here, the appellant's purpose was to deceive the complainant

into having sexual intercourse with him in order to alleviate or
remove the problems which she, having been deceived by him,
 Judgment Approved by the court for handing down. Monica v DPP

believed she faced. The result was that she submitted to

intercourse because of those extraneous pressures. These
submissions broadened from the narrow consideration of
section 76(2)(a) of the Act into the wider question of consent as
defined in section 74. The appellant's actions deprived the
complainant of her freedom to choose whether or not to have
intercourse with him. He pleaded guilty on the basis that at
least on some occasions her freedom to choose was constrained
by his actions.”

68. Sir Igor analysed the cases of Flattery and Linekar for the purpose of ascertaining the
true scope of section 76(2)(a). Applying those authorities to this subparagraph had the
effect of limiting its proper application, which – given that it applied a conclusive
presumption – was an unsurprising conclusion. At [27], Linekar was addressed
without adverse comment in the specific context we have just identified, but at [28] he
added:

“With these considerations in mind, we must return to the

present case. On the written basis of plea the appellant
undoubtedly deceived the complainant. He created a bizarre
and fictitious fantasy which, because it was real enough to her,
pressurised her to have sexual intercourse with him more
frequently than she would otherwise have done. She was not
deceived as to the nature or purpose of the intercourse, but
deceived as to the situation in which she found herself. In our
judgment the conclusive presumption in section 76(2)(a) had no
application, and counsel for the appellant below was wrong to
advise on the basis that it did. However, that is not the end of
the matter.” [Paragraph 28 at 2591D-E]

69. Had it been the end of the matter, the convictions for rape would have been quashed.
But applying the well-established approach to cases involving pressure or coercion
falling short of threats of violence, the convictions were upheld. We do not consider
that Jheeta advances the claimant’s argument.

70. Assange was a case which concerned, so far as material to this claim, dual criminality
in an extradition context. He was wanted for four offences in Sweden, the second of
which was described as ‘sexual molestation’. The particulars were that on 13/14
August 2010, in the home of AA, Assange deliberately molested her “by acting in a
manner designed to violate her sexual integrity. Assange, who was aware that it was
the expressed wish of AA and a prerequisite of sexual intercourse that a condom be
used, consummated unprotected sexual intercourse with her without her knowledge”.
It was suggested that either he did not wear a condom or removed it during
intercourse. The issue was whether a woman’s consent to sexual intercourse only on
the basis that the defendant would wear a condom meant that if he did not do so that
could amount to rape in domestic law. The Divisional Court considered consent by
reference to section 76 of the 2003 Act (the conclusive presumption) and section 74.
Following the approach in Jheeta, the Divisional Court held that section 76 had no
application. Sir John Thomas P (as he then was) giving the judgment of the court,
continued:
Judgment Approved by the court for handing down. Monica v DPP

“86. In our view, therefore, s.76 has no application. The

question of consent in the present case is to be determined by
reference to s.74. The allegation is clear and covers the
alternatives; it [is] not an allegation that the condom came off
accidentally or was damaged accidentally. It would plainly be
open to a jury to hold that, if AA had made clear that she would
only consent to sexual intercourse if Mr Assange used a
condom, then there would be no consent if, without her
consent, he did not use a condom, or removed or tore the
condom without her consent. His conduct in having sexual
intercourse without a condom in circumstances where she had
made clear she would only have sexual intercourse if he used a
condom would therefore amount to an offence under the Sexual
Offences Act 2003, whatever the position may have been prior
to that Act.

87. It might be said that Mr Assange's conduct in having sexual

intercourse with AA without a condom … was deceptive.
Assuming it was deceptive, then in our view it was not
deceptive as to "the nature or quality of the act". … It seems to
us … that s.76 should be given a stringent construction,
because it provides for a conclusive presumption. The issue of
the materiality of the use of a condom can be determined under
s.74 rather than under s.76.

88. It appears to have been contended by Mr Assange, that if, in

accordance with the conclusion we have reached, the deception
was not a deception within s.76 (a deception as to the nature or
quality of the act or a case of impersonation), then the
deception could not be taken into account for the purposes of
s.74. It would, in our view, have been extraordinary if
Parliament had legislated in terms that, if conduct that was not
deceptive could be taken into account for the purposes of s.74,
conduct that was deceptive could not be. There is nothing in R
v B that suggests that. All the court said at paragraph 21 was:

"All we need to say is that, as a matter of law, the fact that

the defendant may not have disclosed his HIV status is not a
matter which could in any way be relevant to the issue of
consent under section 74 in relation to the sexual activity in
this case."

89. The editors of Smith & Hogan …regard it as self-evident

that deception in relation to the use of a condom would "be
likely to be held to remove any purported free agreement by the
complainant under s.74". A very similar view is expressed in
Rook and Ward on Sexual Offences; (4th edition) at paragraph
1.216. Moreover, Jameel makes clear the limited scope of s.76.
The complainant was deceived in a manner which did not go to
the nature or purpose of the act; s.76 was therefore of no
application (see paragraph 28). The evidence in relation to the
 Judgment Approved by the court for handing down. Monica v DPP

fabricated scheme was sufficient, in the court's view, to

negative consent for the purposes of s.74 (see paragraph 29).

90. In our view s.76 deals simply with a conclusive

presumption in the very limited circumstances to which it
applies. If the conduct of the defendant is not within s.76, that
does not preclude reliance on s.74. R v B goes no further than
deciding that failure to disclose HIV infection is not of itself
relevant to consent under s.74. R v B does not permit Mr
Assange to contend that, if he deceived AA as to whether he
was using a condom or one that he had not damaged, that was
irrelevant to the issue of AA's consent to sexual intercourse as a
matter of the law of England and Wales or his belief in her
consent. On each of those issues, it is clear that it is the
prosecution case she did not consent and he had no or no
reasonable belief in that consent. Those are issues to which s.74
and not s.76 is relevant …

91. Thus, if the question is whether what is set out in the EAW
is an offence under the law of England and Wales, then it is in
our view clear that it was; the requirement of dual criminality is
satisfied.”

(The reference is paragraph 87 of the quotation to “nature or quality of the act” is an

error. Section 76 refers to “nature or purpose of the relevant act”.

71. Thus, in Assange the Divisional Court held that the possible deception did not relate
to the nature or purpose of the act for the purposes of the conclusive presumption. In
line with earlier authority the meaning of those words in section 76 was given the
restricted meaning of the common law. But it was relevant to the wider question of
consent and to the alleged offender’s reasonable belief in consent. The ratio of the
judgment is that the types of deception capable of negating consent are wider than the
narrow deceptions considered in Dee, Clarence and Linekar – authorities that were
cited to the Divisional Court – and which are reflected in section 76. There are two
ways of explaining Assange. One is that section 74 of the 2003 Act changed the law
(here, we note the last sentence of [86] and generally [88]); the other is that the
underlying common law understanding of the nature of consent has continued to
develop.

72. For the purposes of the challenge to the Director’s decision, it is unnecessary for us to
say which of these explanations is correct. The question is whether (assuming that
decisions on the 2003 Act are material) the development covers the circumstances in
play. The claimant does not say that section 74 of the 2003 Act changed the law
because her reliance on subsequent jurisprudence is predicated on the premise that it
did not. What may be derived from Assange is that deception which is closely
connected with “the nature or purpose of the act”, because it relates to sexual
intercourse itself rather than the broad circumstances surrounding it, is capable of
negating a complainant’s free exercise of choice for the purposes of section 74 of the
2003 Act. Whilst this may represent a relatively modest extension of the way in which
the law examines “consent” in the context of sexual offending it does not support
 Judgment Approved by the court for handing down. Monica v DPP

what would be the profound change in approach to consent advanced on behalf of the
claimant.

73. In R(F) this Court concluded, applying Assange, that the underlying facts, if proved,
could support a conviction for rape. Consent was given on the basis that the alleged
offender would withdraw before ejaculation. The prosecutor determined that, as a
matter of law, the facts could not support a conviction for rape. The decision was
quashed. None of the pre-2003 Act cases was cited. As Lord Judge CJ explained:

“26. In law, the question which arises is whether this factual

structure can give rise to a conviction for rape. Did the claimant
consent to this penetration? She did so, provided, in the
language of s.74 of the 2003 Act, she agreed by choice, when
she had the freedom and capacity to make the choice.
What Assange underlines is that "choice" is crucial to the issue
of "consent" … The evidence relating to "choice" and the
"freedom" to make any particular choice must be approached in
a broad common-sense way. If before penetration began the
intervener had made up his mind that he would penetrate and
ejaculate within the claimant's vagina, or even, because
"penetration is a continuing act from entry to withdrawal" (see
s.79(2) of the 2003 Act) he decided that he would not withdraw
at all, just because he deemed the claimant subservient to his
control, she was deprived of choice relating to the crucial
feature on which her original consent to sexual intercourse was
based. Accordingly, her consent was negated. Contrary to her
wishes, and knowing that she would not have consented, and
did not consent to penetration or the continuation of penetration
if she had any inkling of his intention, he deliberately
ejaculated within her vagina. In law, this combination of
circumstances falls within the statutory definition of rape.”

74. The claimant submits that on this formulation there are no categories or constraints;
merely the application of broad common sense. It is arguable that the premise of R(F)
is that section 74 brought about a change in the law, but on the footing that it did not,
we repeat what we have just said about Assange. Although there was no deception as
to the nature and purpose of the sexual act, the deception was closely connected with
it. The case does not provide support for the substantial leap contended for by the
claimant.

75. Finally, in McNally the defendant, who was female but purported to be male,
conducted a relationship over the internet with another girl. When they were 17 and
16 respectively the defendant, presenting herself as a boy, visited the complainant and
there was digital penetrative sexual activity. It was clear on the evidence that the
complainant would not have consented to this had she known that the defendant was
female. Leveson LJ gave the judgment for the Court of Appeal. He considered
Assange and R(F) but none of the earlier cases. The submission on appeal was that a
deception as to gender was tantamount to one as to age, marital status, wealth or HIV
status. In rejecting that submission, Leveson LJ said this:
 Judgment Approved by the court for handing down. Monica v DPP

“24. … First and foremost, R v B was not saying that HIV

status could not vitiate consent if, for example, the complainant
had been positively assured that the defendant was not HIV
positive: it left the issue open. As Mr McGuinness for the
Crown contends, the argument that in Assange and R(F) the
deceptions were as to the features of the act is not sustainable:
the wearing of a condom and ejaculation are irrelevant to the
definition of rape and are not 'features' of the offence and no
such rationale is suggested. In the last two cases, it was alleged
that the victim had consented on the basis of a premise that, at
the time of the consent, was false (namely, in one case, that her
partner would wear a condom and, in the second, that he would
ejaculate outside her body).

25. In reality, some deceptions (such as, for example, in

relation to wealth) will obviously not be sufficient to vitiate
consent. In our judgment, Lord Judge's observation that "the
evidence relating to 'choice' and the 'freedom' to make any
particular choice must be approached in a broad common sense
way" identifies the route through the dilemma.

26. Thus while, in a physical sense, the acts of assault by

penetration of the vagina are the same whether perpetrated by a
male or a female, the sexual nature of the acts is, on any
common sense view, different where the complainant is
deliberately deceived by a defendant into believing that the
latter is a male. Assuming the facts to be proved as alleged, M
chose to have sexual encounters with a boy and her preference
(her freedom to choose whether or not to have a sexual
encounter with a girl) was removed by the appellant's
deception.”

76. The Court of Appeal referred to deception concerning “wealth” because the appellant
had submitted that a person who lied about his or her wealth and thereby induced
someone to have sex, who otherwise would not have done, could not vitiate consent.
In applying Lord Judge CJ’s approach, it is clear that the Court was holding that the
deception did not relate to the nature or purpose of the act (in the sense in which that
phrase was understood at common law or for the purposes of section 76(2)(a) of the
2003 Act), but did relate to the sexual nature of this activity. To the extent, therefore,
that the common law was being extended (rather than section 74 being interpreted),
that extension was modest.

77. In her decision, the CPS lawyer analysed the decisions of the Court of Appeal dealing
with section 74 and deception. For present purposes, she identified cases which relate
directly to the sexual act and where the deception puts the sexual health of the
complainant at risk; and those which strike at the heart of the complainant’s sexuality,
which she characterised as a deception “as to the fundamental identity of the
perpetrator.” In the CPS lawyer’s view, McNally could be analysed as an identity or
impersonation case, given the centrality of an individual’s sexuality to her or his
identity, and we would agree.
 Judgment Approved by the court for handing down. Monica v DPP

78. The CPS lawyer recognised, as is the case, that there is no defined list of
circumstances which, for the purposes of section 74, are capable to vitiating consent.
Applying the broad common sense approach that is said to derive from McNally (in
fact, its origin is Lord Judge CJ in R(F)), she was of the view that none of the
interested party’s deceptions was “comparable” to the deceptions found to vitiate
consent in the 2003 Act case law. By this she meant that the deceptions were not
comparable to or analogous with those that directly related to the sexual act, put the
victim’s health at risk as a consequence of it, or related to a fundamental aspect of the
identity of the perpetrator.

79. The claimant does not suggest that the CPS lawyer misapplied the law in the sense
that there is a decision binding on us that she either ignored or misunderstood, or
whose reasoning applied by clear and obvious analogy to the facts of this case. The
submission is that the authorities dictate a governing principle or approach to absence
of consent (“broad common sense”), and an implicit, two-stage test, with an objective
and a subjective element.

80. An appeal to “broad common sense” in the application of any law does not relieve a
court from the obligation of identifying the boundaries within which a jury will be
asked to bring to bear their common sense and experience of life. For that reason,
when considering the governing principle or approach it is necessary to examine how
it has been applied by the courts to date. It has never been applied to deceptions which
are not closely connected to the performance of the sexual act, or are intrinsically so
fundamental, owing to that connection, that they can be treated as cases of
impersonation. Furthermore, in terms of Ms Kaufmann’s postulated twofold test, the
objective element is nowhere to be discerned in the authorities and sits uneasily with
notions of autonomy and freedom of choice, which are inherently subjective matters.
Moreover, there is no decided case where the suggested subjective element is
expressly set out.

81. In our judgment, the suggested subjective element is a very significant extrapolation
from statements of principle made in specific and different contexts. For example, in
McNally the victim’s freedom of choice was robbed by the defendant’s deception, but
the ratio of the case was that, as a matter of common sense, there was all the
difference in the world between sexual activity with a boy and similar activity with a
girl.

82. There may be subtle metaphysical distinctions, to borrow from Wills J, between
“identity”, “attributes” and “qualities”. There is obviously force underlying the
contention that many embark upon sexual relationships for reasons unconnected with
or at least well beyond the physical attractions of the intended partner. That is a
reflection of human nature and the reality that different things are important to
different people. But we would not want to adopt the stereotypical view advanced on
behalf of the claimant that men and women are necessarily different in this respect.
In our view, the CPS lawyer was correct in approaching her decision on the basis that
the claimant’s case involves not just a step but a leap in the way in which consent is
interpreted. In our judgment, she was entitled to reach the conclusion that “consent”
could be not interpreted by a court in a way which undertook that leap applying, as
she put it, “current legal principles”.
 Judgment Approved by the court for handing down. Monica v DPP

83. The test suggested on behalf of the claimant also skirts around all the difficulties that
concerned Wills and Stephens JJ, as well as later commentators and reporters, about
where to draw lines and differentiate between deceptions which negate consent for
these purposes and those which do not. Whilst many would agree, for example, that
deception surrounding wealth should be filtered out at the claimant’s first, objective,
stage, there can be little doubt that for many, the financial standing of a potential
sexual partner is very important indeed. By contrast, few (if any) could doubt the
fundamental deceit of a married person entering into a bigamous marriage, which
would lead to almost all bigamists being guilty or rape and other sexual offences as
well. That is a step which, in our view could only be achieved by Parliament, not
least because the maximum sentence of bigamy is seven years’ imprisonment and for
rape life imprisonment.

84. The claimant’s arguments were advanced on the basis that “consent” was a common
law concept which the courts are free to develop. That is not strictly speaking the
case, at least since the absence of consent formed part of the statutory definition of
rape following the Sexual Offences (Amendment) Act 1976, further amended by the
Criminal Justice and Public Order Act 1994 and then reframed by the 2003 Act.
Whilst there can be no doubt that when the concept first appeared in a statute,
Parliament was doing no more than reflecting the common law. But the interpretation
of the concept of consent is no longer a free-standing common law exercise. It is a
matter of statutory interpretation. The relevant statutory definition of rape for the
purposes of this claim is that introduced in 1994 but the point holds good whether that
definition or the more recent 2003 definition is in play. We have been shown no
admissible aids to statutory construction which support the expansive definition of
consent advanced on behalf of the claimant; and for reasons we have explained we do
not consider that existing authority provides any support either.

85. Statutes are “always speaking” so that there may be “updating construction” including
where there have been changes in social conditions or in the way society views
matters: see Bennion on Statutory Interpretation 7th ed. Ch.14 and e.g. R v Ireland
[1998] 1 AC 147 per Lord Steyn at 158, Owens v Owens [2017] EWCA Civ 182 per
Sir James Munby P. at [39], Fitzpatrick v Sterling Housing Association [2001] 1 AC
27 per Lord Slynn at p. 35 and Lord Nicholls at p.45, R (Quintavelle) v Secretary of
State for Health [2003] 2 AC 687 at [9]. But there is no warrant, in the application of
that principle of statutory construction, to travel along the path so attractively laid out
by Ms Kaufmann. On the contrary, in our judgement it would be wrong for such a
fundamental change in the understanding of consent to be brought about by judges
rather than the legislature. It has long been accepted that the courts should not create
new common law offences. But the principle goes further. As Lord Reid said in R v
Knuller (Publishing Printing and Promotions) Ltd [1973] AC 435 at 457 H:

“In upholding the decision in Shaw’s case, we are, in my view,

in no way affirming or lending any support to the doctrine that
the courts still have some general or residual power either to
create new offences or so to widen existing offences as to make
punishable conduct of a type hitherto not subject to
punishment.”

86. The claimant’s case is founded on the proposition that dicta in the cases to which we
have referred should be extrapolated to establish a new understanding of consent for
 Judgment Approved by the court for handing down. Monica v DPP

the purposes of rape and all sexual offences. That would inevitably result in the
criminalisation of much conduct which, hitherto, has fallen outside the embrace of the
criminal law. Whether sitting, as we are, at first instance in judicial review
proceedings, or on appeal, such a step would not accord with principle.

87. For all these reasons, the claimant’s case must fail on her first ground.

Ground 2

88. The leading authority on the meaning of “procure” or “procurement” under the Sexual
Offences Act 1956 is R v Broadfoot [1977] 64 Cr App R 71. This was a case on
section 22 and not section 3 of the 1956 Act, but that is immaterial. The defendant
attempted to recruit two women to work in one of his massage parlours. They were
unwilling to perform the relevant services, and charges were brought on two counts of
attempting to procure a woman to become a prostitute. Cusack J, giving the judgment
of the Court of Appeal, suggested two definitions of this verb or of its gerund
“procuring”:

“‘to procure means to produce by endeavour. You procure a

thing by setting out to see that it happens and taking the
appropriate steps to produce that happening.’

‘procuring’ [is] the bringing about of a course of conduct which

the girl in question would not have embarked upon
spontaneously of their own volition.”

89. The CPS lawyer accepted that the deception necessarily involved in Mr Boyling’s
deployment was active, and presumably continuing, and that the claimant would not
have entered into a relationship had she not been deceived. The lawyer thought that
there was no act of procurement. The deception went to the circumstances which led
the parties to encounter each other rather than the act of sexual intercourse with which
section 3 of the 1956 Act is concerned. Her reasoning was also along the lines that by
the time a sexual relationship was on the cards, and that was months later, its trigger
was not any procurement on the part of Mr Boyling but mutual attraction. The
proposition that mutual attraction is “the antithesis of procurement” perhaps
overstates the position, but as we have said decisions of this sort should not be read
with a fine toothcomb.

90. The claimant cannot point to a decided case which treats this, or any similar, factual
structure as amounting to the offence of procurement under section 3. In Broadfoot
there was an immediate, direct physical and temporal connection between the actus
reus, the attempted procurement, and the unwelcome activity that was in
contemplation. If the facts of Linekar amounted to an offence under section 3, the
same would apply; and we may make the same point about Jheeta. On the facts of the
instant case, Mr Boyling did not create the circumstances which led to the encounter
in the first place; he was responding to the orders of his superiors. In any event, on the
facts of the present case it is difficult to see how the procurement for the purposes of
section 3 could be bringing about the initial encounter – at that stage, no sexual
relationship was in contemplation. By the time the relationship was about to start, it is
hard to identify the actus reus of the offence, beyond stating that the deception was a
 Judgment Approved by the court for handing down. Monica v DPP

continuing part of the background. But that is not tantamount to saying that the
interested party was taking steps to secure a particular result.

91. In our judgment, the CPS lawyer was entitled to conclude that the actus reus of the
offence would not, on balance, be established, but she also concluded that there were
considerable difficulties in proving mens rea. In her opinion a jury would find it
difficult to accept that the interested party intended to procure at least one act of
sexual intercourse (and for these purposes, it would surely have to be the first act) at
the relevant time: i.e. shortly before it took place. Plainly, the requisite intention could
only be proved by inference, and at paragraph 56 of her decision the CPS lawyer
provided a good example of a case where the inference could safely be drawn: the
making of false promises of marriage to procure sex. Overall, the CPS lawyer was
entitled to form the evaluative judgement that a jury would be unlikely to draw the
necessary inference on these facts. This is precisely the sort of assessment upon which
this Court applies a strict self-denying ordinance.

92. It follows that the first limb of the claimant’s second ground must be rejected.

93. As for the second limb (misconduct in public office), Ms Kaufmann’s submission is
that the CPS lawyer either ignored AC Hewitt’s apology or, if she did take it into
account, reached a perverse conclusion. The law was correctly stated in the decision,
in particular the decisions of the Court of Appeal in Attorney-General’s Reference
(No. 3 of 2003) [2005] QB 73 and R v Chapman [2015] 2 Cr App R 10. The key
issues here were whether Mr Boyling wilfully neglected to perform his duty or
wilfully misconducted himself to such a degree as to amount to an abuse of the
public’s trust in the office holder. The requisite level of seriousness was as set out by
Lord Thomas CJ in Chapman.

94. The claimant is critical of the way in which the CPS lawyer expressed her belief that
sexual relationships would be very likely in the environment of this protest group (see
paragraph 20 above). But we are here to correct errors in the context of the evaluation
of evidence and likely outcomes of criminal proceedings. We acknowledge, even if it
were the case that some relationships of this sort are likely to form, it by no means
follows that the threshold of seriousness is incapable of being surmounted. More to
the point, it is right that the CPS lawyer did not directly mention AC Hewitt’s public
apology in the decision letter but appeared to place greater weight on the Tradecraft
Manual.

95. The nature of the claimant’s challenge requires, in our view, to be identified with
precision. Although advanced as a failure to consider material considerations, this is
in truth a pure irrationality challenge and an attack on the merits of the CPS lawyer’s
decision. AC Hewitt’s apology was not a “material consideration” properly so called
(see Findlay v Secretary of State for the Home Department [1985] AC 318, at 334)
and R (oao DSD) v Parole Board [2018] 3 WLR 829 (at paragraphs 134-145); it was
part of the corpus of evidential material that was available to the lawyer in deciding
whether the evidential test was fulfilled.

96. AC Hewitt’s apology was considered by the CPS lawyer but she was not obliged to
refer to it expressly. The apology was imprecise as to the contemporaneous material,
if any, that informed AC Hewitt’s assessment. It did not speak directly of what the
position was in 1997. In any event, the CPS lawyer was entitled to place greater
 Judgment Approved by the court for handing down. Monica v DPP

weight on the Tradecraft Manual. This did not expressly interdict the formation of
sexual relationships, although it enjoined field officers to attempt to make these short-
lived and disastrous. The conclusion could properly be drawn that not all sexual
relationships were prohibited, and the lawyer drew attention to the features of the
instant case which in her view placed it lower down the scale of seriousness. How a
jury would, or might, interpret the manual and evaluate the seriousness of this case
was a matter for her judgement. We make the same observation in connection with
her finding that mens rea would be unlikely to be proved.

97. It follows that the second limb of the claimant’s second ground must also be rejected.

Conclusion

98. On close consideration there is no merit in the grounds and challenge. This
application for judicial review must be dismissed.