F, Regina (on The Application of) v The Director of Public Prosecutions and Another: Admn 24 Apr 2013

Application for judicial review of the refusal of the Director of Public Prosecutions to initiate a prosecution for rape and/or sexual assault of the claimant by her former partner. The claimant said that she had initially consented to sex with her partner, but only on the basis that a condom was worn. He had not done so.
Held: Judicial review was granted: ‘What Assange underlines is that ‘choice’ is crucial to the issue of ‘consent’, and indeed we underline that the statutory definition of consent provided in s.74 applies equally to s.1(1)(c) as it does to s.1(1)(b). The evidence relating to ‘choice’ and the ‘freedom’ to make any particular choice must be approached in a broad commonsense 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.’
Sir John Thomas LCJ, Fulford, Sweeney JJ
[2013] EWHC 945 (Admin), [2013] 2 Cr App R 21, [2013] WLR(D) 178, [2014] 2 WLR 190, [2013] ACD 86, [2014] 1 QB 581
Bailii, WLRD
Sexual Offences Act 2003 1(1)
England and Wales
Citing:
CitedRegina v The Director of Public Prosecutions, Ex Parte Manning, Ex Parte Melbourne QBD 17-May-2000
The applicants sought judicial review of the decision of the Director not to prosecute anybody after the death of their brother in prison custody, and while under restraint by prison officers. The jury at a coroner’s inquest had returned a verdict . .
CitedAssange v Swedish Prosecution Authority Admn 2-Nov-2011
The defendant argued that he should not be extradited under a European Arest warrant to Sweden to face allegations of serious sexual assaults. He argued that the prosecutor requesting the extradition was not a judicial authority, that some offences . .

Cited by:
CitedMonica, Regina (on The Application of) v Director of Public Prosecutions Admn 14-Dec-2018
Deception as to identity did not undermine consent
The claimant had been an environmental campaigner. She had had a sexual relationship with a man who was unknown to her an undercover police officer. She now challenged the decision not to prosecute him for rape.
Held: Her claim failed. Case . .
CitedLawrance, Regina v CACD 23-Jul-2020
Consent not removed by Lie as to Vasectomy
The defendant appealed from his conviction of rape. He had represented to his victim that he had had a vasectomy to secure consent which the court found had been vitiated.
Held: The appeal was allowed. Could a lie about fertility negate . .

These lists may be incomplete.
Updated: 12 July 2021; Ref: scu.472950