R (F) v DPP and A [2013]

R (on the application of F) v Director of Public Prosecutions and “A” [2013] EWHC 945 (Admin) is a important criminal case where the High Court took the unusual step of intervening in a decision by the Crown Prosecution Service (CPS) not to prosecute a case involving a serious allegation of rape within marriage. The claimant had alleged that her husband, against a background of domestic violence and coercive control, had raped her by deliberately disregarding an agreed condition of their sexual intercourse. Specifically, she stated that she had only consented to sex on the basis that he would withdraw prior to ejaculation, which was their established method of contraception. During the act, however, he told her he would ejaculate inside her, asserting dominance by claiming he could do so because she was his wife. He then proceeded to ejaculate inside her, contrary to their agreement. The claimant argued that this violated her sexual autonomy and that her consent had been vitiated by the husband's calculated deception and abuse of power.

The CPS initially declined to prosecute, concluding that there was insufficient evidence to support a realistic prospect of conviction. In response, the claimant applied for judicial review, challenging both the factual assessment and the application of legal principles. The court emphasised that judicial review of prosecutorial discretion is rare and should only occur where there is perversity, a misdirection in law, or a fundamentally flawed assessment of the evidence. It acknowledged that its jurisdiction was limited and should not be exercised merely because the court might have reached a different conclusion on the merits. Nevertheless, the court found it necessary to intervene in this case, ordering a reconsideration of the CPS’s decision.

A key part of the legal analysis turned on whether the husband's actions could amount to rape under the Sexual Offences Act 2003. Section 76 of the Act, which sets out conclusive presumptions of non-consent, was considered but ultimately found inapplicable. The court accepted the principle that only deceptions going to the nature or purpose of the act, or impersonation of a person known to the complainant, fall under Section 76. In this case, the act of sexual intercourse itself had not been misrepresented, nor had there been impersonation. Instead, the legal issue had to be assessed under Section 74, which defines consent as "agreement by choice with the freedom and capacity to make that choice". The court found that the claimant’s consent was conditional as she only agreed to the act on specific terms which were then deliberately violated. As such, there was a credible argument that her apparent consent was not freely given and was therefore not valid under Section 74.

The case was further informed by the earlier decision in Assange v Swedish Prosecution Authority [2012], where it was held that deception about condom use could negate consent under Section 74, though not under the conclusive presumptions in section 76. Drawing on Assange, the court in F held that deception regarding withdrawal or ejaculation could similarly undermine the voluntariness of the complainant’s consent. The court distinguished this from situations where ejaculation occurs accidentally or prematurely, stating that only deliberate and premeditated deception would vitiate consent in law. On the facts, the husband's assertion that he could do as he pleased because they were married, coupled with a long history of coercive and abusive behaviour, supported the claim that the complainant's freedom to choose had been overridden.

The High Court therefore concluded that the CPS’s decision not to prosecute had failed to fully engage with the legal implications of the complainant’s conditional consent and the potential impact of the husband's deception. It found that the prosecutor had erred in treating the incident as a case of consensual intercourse and directed the CPS to review the decision in light of the principles set out in Assange and the statutory framework under Section 74. While the judgment stopped short of ordering a prosecution, it reinforced the idea that consent obtained through intentional and material deception can be invalid, and that prosecutors must properly consider the complainant’s autonomy and the context in which consent was given.

This case is significant for several reasons. It confirms that the criminal law recognises conditional consent and that a breach of those conditions, where deliberate, can transform what appears to be consensual sex into rape. It also reflects a broader recognition of the role of coercion and control within intimate relationships, particularly in the context of domestic abuse. Furthermore, it highlights the judiciary’s willingness, in exceptional circumstances, to hold the CPS accountable when prosecutorial decisions fail to consider the legal and evidential complexities involved in such sensitive cases. Though judicial review of prosecutorial decisions remains exceptional, F demonstrates that courts will intervene where there is a failure to apply the correct legal principles to the facts.