In a decision published on 24 April 2013 the High Court took the “highly exceptional” step of ordering the CPS to review its decision not to prosecute in a case involving an allegation of rape.

In his judgment, The Lord Chief Justice stated that such jurisdiction should be used sparingly. Whilst the courts are well versed in dealing with challenges brought by the defence against a decision to prosecute in the form of dismissal applications or abuse of process arguments, the courts are not typically involved in the challenging of decisions not to prosecute and as a result this is somewhat unfamiliar territory.

In the case of R (on the application of F) v The Director of Public Prosecutions and “A” [2013] EWHC 945 (Admin) the claimant applied for judicial review asking the court to consider a CPS decision not to prosecute her husband and in particular whether or not there was a realistic prospect of conviction.

The remedy the court may grant in these circumstances is relatively limited. The court should not substitute its own analysis and judgment for that of the CPS purely because it would have reached a different decision on the facts. It would need to be shown, for example, that there had been some perverseness in the decision-making or perhaps that the decision had been based on an error of law. A simple difference in opinion between the CPS and the court would not suffice.

The first claim was brought by the claimant in June 2011. The CPS agreed shortly thereafter in July 2011 to undertake a review of the decision. The review, carried out by Allison Levitt QC, was described by the court as “thorough” and “painstaking”.

The claimant complained that she had been raped by her husband, who was an intervener in the proceedings. There had been a longstanding history of domestic violence and the intervener had on many occasions behaved aggressively and sought to exert power and control over the claimant.

The allegation was that claimant had agreed to sexual intercourse with the intervener on the basis that he would not ejaculate inside her, withdrawal being their agreed form of contraception. Following penetration the suspect had informed her that he would in fact ejaculate inside her, which he did, and he would do so because she was his wife and he could do it if he wanted.

The question Levitt asked herself upon reviewing this matter was whether ejaculation without consent could transform an incident of consensual intercourse into rape.

Penetration is a continuing act and so consent can be withdrawn even after penetration has begun and this will transform an act that begins as consensual intercourse into rape. Levitt was troubled by the facts of this case insofar as it was not clear at what point the intervener should have ceased to have intercourse with the applicant. Levitt’s view was that if the intervener embarked upon the act knowing he would ejaculate inside her against her wishes then it was arguable that he knew she did not consent. However, Levitt felt that as a matter of evidence it would be impossible to prove that it had not been a spontaneous decision made at the point of ejaculation.

At the time of the review, Levitt did not have the benefit of the judgment in Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin) which dealt with this issue as part of a dual criminality argument made in an appeal against extradition.

The issue in Assange was whether or not consent to sexual intercourse on the basis that a condom would be used could be negated by the fact that no condom was used.

Section 76 of the Sexual Offences Act 2003 (“SOA”) sets out a number of conclusive presumptions which, if proved, create an irrebuttable presumption that the complainant did not consent and that the defendant had no reasonable belief in consent. S. 76(2)(a) states that a deception as to the nature or quality of the act raises a conclusive presumption against consent. Various academic writers considered that this may have some application in circumstances such as those in Assange and R (on the application of F) v DPP and that unprotected sexual intercourse should be treated as different in nature to protected sexual intercourse, thereby raising a conclusive presumption.

However, this view has been rejected by the courts and it was concluded that s.76 should be afforded a stringent construction given its status as a conclusive presumption. Further, the court held that even if there had been a deception, it was not a deception as to the nature or quality of the act and as such s.76 had no application in these circumstances.

Therefore the issue of consent in this type of case falls to be considered under s.74 SOA 2003, which states that:

“…a person consents if he agrees by choice and has the freedom and capacity to make that choice”

The court held that possible deception about the use of the condom or in the instant case, the promise not to ejaculate, could be held to remove any purported free agreement by the complainant under s.74, thus negating consent.

The court made it clear that this would not extend to situations where there had been premature or accidental ejaculation. However, where deception had been used or the basis on which consent was given was deliberately ignored, the conduct fell within the statutory definition of rape.

In the claimant’s case, the court took into account the entire body of evidence, including the relationship history of the couple and ordered that the decision should be reviewed in light of the legal principles as set out in Assange.