In R (Monica) v Director of Public Prosecutions [2018] EWHC 3508 (QB), the Divisional Court (Lord Burnett of Maldon LCJ and Jay J) refused a claim from ‘Monica’ for judicial review of the decision of the DPP not to institute criminal proceedings against Andrew James Boyling, who was himself an interested party to the claim. ‘Monica’ is a pseudonym for a woman who entered into a sexual relationship with Mr Boyling at a time when he was a police officer masquerading as an environmental protestor. The activities of Mr Boyling, and other police officers like him, are presently being considered by Sir John Mitting as part of the Undercover Policing Inquiry. Monica claimed that she would not have agreed to have a sexual relationship with Mr Boyling had she known the truth and, her agreement having been procured by his deception, her consent to the sexual activity that had taken place between them had been vitiated. The DPP refused to prosecute Mr Boyling for raping Monica, and she sought to challenge that decision before the Divisional Court.

No doubt much will be written elsewhere about the significance of Monica’s case to the circumstances in which the Divisional Court will interfere with a decision not to prosecute, and to the conditions that must exist before it can be said that deception on the part of one party to an act of sexual intercourse vitiates the consent of the other party. This piece focusses on a different aspect to the decision, and that concerns the relationship between the offence of rape in section 1 of the Sexual Offences Act 1956 and the equivalent offence in its statutory successor, section 1 of the Sexual Offences Act 2003. Section 1 of the 1956 Act made it a statutory felony for a man to rape a woman but it did not set out what the elements of rape were. The 1956 Act also contained an offence in section 2 of procuring a woman, by threats or intimidation, to have unlawful sexual intercourse, and a further offence in section 3 of procuring a woman to have sexual intercourse by false pretences or false representations. The section 2 and 3 offences were repealed when the 2003 Act came into force on 1 May 2004 and not replaced.

The Sexual Offences (Amendment) Act 1976 amended the 1956 Act in a number of important respects and provided the first statutory definition of rape, which included a requirement that the sexual intercourse must have taken place without the woman’s consent. The 1976 Act did not define what ‘consent’ meant but in Monica, the Divisional Court saw no reason to suppose that it meant anything other than what the common law said it meant at the time the amendment was made (at [27]). The claimant submitted that in R v Olugboja [1982] QB 320, the Court of Appeal had unshackled consent in section 1 of the 1956 Act from its common law moorings and allowed it to drift over areas previously reserved for section 2 and 3. In other words, the claimant suggested that certain threats, intimidations, false pretences or false representations that would not previously have been relevant to the issue of consent under the common law now had to be considered under section 1 whereupon it would be a matter for a jury to decide whether the apparent consent of the woman had been vitiated by those threats etc.

The rape offence in the 1956 Act was amended again by the Criminal Justice and Public Order Act 1994 but without the insertion of a definition of consent. It was not until the 1956 Act was largely swept away by the 2003 Act that Parliament created a definition of consent in section 74 of that latter statute in these terms – “a person consents if he agrees by choice and has the freedom and capacity to choose”. The claimant further submitted that the definition of consent in section 74 of the 2003 Act did no more than reflect the more sophisticated understanding of consent that followed on from the amendment to the 1956 Act that had been made by the 1976 Act. In contrast, Mr Boyling argued that the introduction of section 74 fundamentally changed the law on consent and so it would be a mistake to assume that in 2003 Parliament had intended to do no more than codify the common law on consent as it existed at that time.

Of importance here, the Divisional Court found that there is “no decided case that holds in terms that the 2003 Act has made no difference to the notion of “consent”” (at [48]). It followed that there was “at least room for argument” that the abolition of the offences in section 2 and 3 of the 1956 Act “may have widened the scope of the offence of rape”. Although the Divisional Court was clearly not inclined to decide the point it did leave the door open to a submission in a future case that consent under the 2003 Act is different to consent under the 1956 Act and that is because (i) Parliament chose not to define consent under the earlier Act (and so it cannot be presumed that the definition in the 2003 Act reflects what Parliament understood consent in the 1956 Act to mean), and (ii) Parliament chose to retain sections 2 and 3 in the 1956 Act (and so Parliament presumably intended certain types of conduct to be caught by those offences and not by section 1, whereas under the 2003 Act there is no equivalent of the section 2 and 3 offences and so ‘consent’ in section 1 is left to do all the work).

This is significant and not just in the context of cases where the prosecution maintain that consent has been vitiated by fraud. What about those cases where the prosecution allege the victim has been groomed, and thus she lacked the freedom to choose to have sexual intercourse with the defendant – see R v Robinson [2011] EWCA Crim 916 (a 1956 Act case); R v Ali (Yasir) [2015] EWCA Crim 1297, [2015] 2 Cr App R 33 (a 2003 Act case); and Freer, ‘Yes, no, maybe – recent cases on consent and freedom to choose’, Archbold Review, 2016, 1, 6–9. There will be little difficulty accommodating this allegation in the 2003 Act because freedom is an element of consent, but would the position be the same under the 1956 Act? Following Monica, there may just be an argument to say that the sort of considerations that arise in grooming cases, and which are relevant to consent under the 2003 Act, would not be relevant to consent under the 1956 Act because they fall more neatly into the section 2 and 3 offences. Or, to put it another way, where a person is apparently an enthusiastic participant in a sexual encounter, but the prosecution’s case is that that person lacked the freedom to choose to participate in that activity because she had been groomed, Parliament did not intend that consideration to undermine consent under section 1 of the 1956 Act with the result that the act of intercourse could not amount to rape but could, in theory, amount to an offence contrary to section 2 or section 3. It remains to be seen whether and to what extent the Court of Appeal will engage with the argument in Monica about the scope of consent in the 1956 Act and the 2003 Act being potentially different, but there is certainly an argument there to be made in an appropriate case.