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 law suggested that no prosecution had ever been undertaken where the deception said to undermine the consent was no closely related to the sexual act itself.
Lord Burnett CJ said: ‘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.’
Lord Burnett of Maldon CJ, Jay J
[2018] EWHC 3508 (Admin), [2018] WLR(D) 765, [2019] Crim LR 532, [2019] 1 Cr App R 28, [2019] 2 WLR 722, [2019] QB 1019
Bailii, WLRD
Sexual Offences (Amendment) Act 1976 1, Criminal Justice and Public Order Act 1994 142, Sexual Offences Act 2003 1 74 75 76
England and Wales
Citing:
Cited – Regina v Clarence CCCR 20-Nov-1888
The defendant knew that he had gonorrhea. He had intercourse with his wife, and infected her. She would not have consented had she known. He appealed his convictions for assault and causing grievous bodily harm.
Held: ‘The question in this . .
Cited – Olugboja, Regina v CACD 17-Jun-1981
The actus reus of the offence of rape was an act of sexual intercourse to which the complainant did not consent at the time it occurred. . .
Cited – Elbekkay, Regina v CACD 12-Sep-1994
The defendant appealed against his conviction for rape. The victim had mistaken him man for her ‘boyfriend’
Held: it was rape for a man to have intercourse with a woman by impersonating her boyfriend with whom she had been living for 18 . .
Cited – Regina v Linekar CACD 21-Oct-1994
L appealed against his conviction for rape. His victim was a woman working as a prostitute. He said that he had simply made off afterwards without payment. He was convicted on the basis that he had procured the act by a false pretence by him that he . .
Cited – Regina v Richardson CACD 6-Apr-1998
The question was whether a dentist whose right to practice had been suspended was guilty of assault because the apparent consent of a number of patients was vitiated by mistake about her status as a dentist. The dentist had failed to disclose that . .
Cited – Lang and Others, Regina v CACD 3-Nov-2005
In each case the defendant had commited violent or sexual offences and were caught by the new mandatory sentencing provisions, and been made subject to life imprisonment, or detention for public protection, or an extended sentence.
Held: The . .
Cited – Regina v Dee 1884
Court of the Crown Cases Reserved of Ireland – May CJ (who had also been the trial judge), set out the facts: ‘There is not, I think, any doubt or dispute as to the facts and circumstances of the case. Upon the report of the Judge, who was myself, . .
Cited – Jheeta, Regina v CACD 11-Jul-2007
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 . .
Cited – Corner House Research and Others, Regina (on the Application of) v The Serious Fraud Office HL 30-Jul-2008
SFO Director’s decisions reviewable
The director succeeded on his appeal against an order declaring unlawful his decision to discontinue investigations into allegations of bribery. The Attorney-General had supervisory duties as to the exercise of the duties by the Director. It had . .
Cited – Assange 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 – L v Director of Public Prosecutions and Others Admn 12-Mar-2013
Renewed applications for judicial review in each of which the claimants challenge the decision of the Crown Prosecution Service not to prosecute.
The principle of the separation of powers leads to the adoption of a ‘very strict self-denying . .
Cited – 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 . .
Cited – McNally v Regina CACD 27-Jun-2013
A teenage woman impersonated a teenage man and secured the consent of another young woman on that basis to engage in digital penetrative activity.
Held: A victim’s consent to a sexual penetration might be destroyed by a defendant’s deception . .
Cited – Attorney General’s Reference (No 3 of 2003) CACD 7-Apr-2004
Police Officers had been acquitted of misconduct in public office. They had stood by in a police station custody suite as a prisoner lay on the floor and died.
Held: The trial took place before R -v- G which had overruled Caldwell. The . .
Cited – In Re Findlay, in re Hogben HL 1985
A public authority, and the Prison Service in particular, is free, within the limits of rationality, to decide on any policy as to how to exercise its discretions; it is entitled to change its policy from time to time for the future, and a person . .
Cited – DSD and NBV and Others Regina (on The Application of) v Admn 28-Mar-2018
Challenge to decision of parole board for release of notorious criminal. – Whether Parole Board should take account of allegations made but neither prosecuted nor admitted. Whether Parole Board hearings were public.
Held: Granted . .
Cited by:
Cited – Lawrance, 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 . .
Lists of cited by and citing cases may be incomplete.
Crime, Judicial Review
Updated: 01 November 2021; Ref: scu.632099