R (Monica) v Director of Public Prosecutions [2018]

R (Monica) v Director of Public Prosecutions [2018] EWHC 3508 (Admin), [2019] QB 1019 is a notable criminal case where the Divisional Court was asked to review a decision by the Crown Prosecution Service (CPS) not to prosecute a former undercover police officer, Andrew Boyling, for several serious offences. The claimant, Monica, was an environmental activist who had entered into a sexual relationship with Boyling, unaware that he was a police officer covertly infiltrating her political group. After discovering his true identity, she sought to have him prosecuted for rape, indecent assault, procurement of sexual intercourse by false pretences, and misconduct in public office. The CPS declined to prosecute, concluding that although Boyling had engaged in deception, it did not meet the legal threshold necessary to vitiate consent under the criminal law relating to sexual offences.

The legal issues before the court were complex and revolved primarily around the question of consent. Monica argued that the deception was so central to her decision to engage in a sexual relationship that it nullified any genuine consent she had given. In her submission, the CPS had applied an incorrect or overly narrow test in determining whether the sexual acts were consensual within the meaning of the Sexual Offences Act 2003. The court examined this argument in detail, particularly the meaning of consent under Section 74 of the Act, which provides that a person consents if they agree by choice and have the freedom and capacity to make that choice. The court also considered common law principles and earlier case law that had dealt with various types of deception and their legal effect on consent.

Ultimately, the court rejected Monica’s claim. It held that not all deceptions are sufficient to vitiate consent for the purposes of rape. In particular, only deceptions that go to the nature or purpose of the act, or where the defendant impersonates a person personally known to the complainant, fall within the scope of the criminal law in this context. While the deception in this case was certainly troubling, the court held that it did not concern the nature or purpose of the act itself, nor did it involve impersonation of someone known to Monica. Therefore, under existing law, her consent was not invalidated. The court accepted the CPS’s position that there was no realistic prospect of conviction on the facts.

The judgment also addressed the issue of judicial review more broadly. The court was clear that decisions by the CPS not to prosecute are subject to a very limited form of review, grounded in the principles of legality and rationality. A decision will only be set aside if it is irrational or based on a material error of law. In this case, the court found that the CPS had properly applied the relevant legal tests and had made a lawful and rational decision. There was no evidence of bad faith, misdirection, or irrationality in the prosecution’s decision-making process. As such, the court concluded that it had no basis to intervene.

The judgment draws heavily on prior authorities, including R (F) v DPP [2013] and R v McNally [2013], where specific types of deception were held to vitiate consent. In those cases, the deception directly concerned the sexual act or the identity of the participant in a way that fundamentally altered the complainant’s understanding of what they were consenting to. By contrast, the court found that Boyling’s deception, though arguably reprehensible, did not meet the threshold established in those cases. The court also referenced the case of R v Olugboja [1982], noting that consent and submission are not synonymous, but reiterated that Monica’s consent was not obtained through coercion or force, but through a deception that was insufficient in law to negate her free agreement.

This case has significant implications both for the criminal law on consent and for public law. It affirms the narrow scope of deception capable of vitiating consent in sexual offences, reinforcing the legal distinction between moral wrongdoing and criminal liability. It also highlights the limited role of the courts in reviewing prosecutorial decisions, preserving the constitutional independence of the CPS from judicial interference. While the case raised important ethical concerns about the conduct of undercover policing, the court was clear that any expansion of the legal concept of consent to address such issues would be a matter for Parliament, not the judiciary.

In essence, R (Monica) v DPP confirms that the criminal law does not currently recognise deception as to background, occupation, or political identity as vitiating consent to sex. It highlights the principle that the courts must apply the law as it stands, even when doing so leaves certain moral harms outside the reach of the criminal justice system. Any substantive change in the law would require legislative reform, not judicial intervention.