In an era of #metoo the question as to how to define consent has moved squarely into mainstream debate. With each new celebrity sex scandal, the nuances surrounding consent are re-examined by the media and societal thinking shifts. It is in this context that, in May 2018, a woman known as “Monica” brought judicial review proceedings against the Crown Prosecution Service (CPS) for a decision not to charge undercover police officers with sexual offences in 2014 (having had her request for the decision to be overturned under the Victim’s Right to Review scheme denied). This case exposes the truth that, when it comes to questions of consent, the criminal law is inextricably intertwined with moral judgment rather than impartial analysis.
The facts are well known; in 2011 it was revealed that undercover police officers had for decades been infiltrating left-wing and environmental protest groups and had, in a number of cases, embarked on sexual relationships with activists in those groups. One of the many ramifications of this becoming public was that complaints were made to the police by women who had been in sexual relationships with undercover police. Officers were accused of a range of offences, including sexual offences.
At the end of its investigation, the CPS decided not to bring any charges against the police officers. The published rationale was that there was insufficient evidence, given the status of the law on how deception affects consent, to prove that sexual intercourse between the undercover police and the activists was non-consensual. It is this decision that is now, nearly four years later, subject to judicial review proceedings on the basis that the CPS effectively misunderstood the law on consent.
This boils down to a seemingly simple question: if you deceive a sexual partner as to a fundamental detail about who you really are, does this deception vitiate consent? As the case of Monica demonstrates, this is not a question with a simple answer.
One area where the law is currently reasonably clear is that where someone has been deceived as to their sexual partner’s gender, consent will be vitiated. This follows a number of high profile cases including the conviction of Gayle Newland in 2017. Monica’s lawyers in this judicial review argue that sexual relations with undercover officers should be regarded in the same way, saying: “The CPS have prosecuted and sent to prison young women who deceived others as to their gender, but when it comes to wholesale deception as to identity by police officers, they entirely excuse behaviour which has been demonstrated to have caused significant psychological damage to all the women concerned.” The CPS, in deciding not to prosecute, considered the fact that deception as to gender vitiated consent, but nonetheless concluded that “any deceptions in the circumstances of this case were not such as to vitiate consent and that consequently there is insufficient evidence to prosecute for rape”.
That such conflicting conclusions were reached reflects the imprecise way that consent is defined in law. Consent is defined in s74 Sexual Offences Act 2003 as “if he agrees by choice, and has the freedom and capacity to make that choice.” Exploring what freedom and capacity mean in this context was R v McNally, a case about deception as to gender, in which the Court of Appeal offered the following guidance:
“In reality, some deceptions (such as, for example, in relation to wealth) will obviously not be sufficient to vitiate consent. In our judgment, Lord Judge’s observation that “the evidence relating to ‘choice’ and the ‘freedom’ to make any particular choice must be approached in a broad commonsense way” identifies the route through the dilemma.”
The position taken by Leveson LJ in this judgment was an optimistic one. When it comes to sexual relationships with undercover police, it is clear that “common sense” alone will not, in fact, solve the dilemma. This is amply demonstrated by the fact that the common sense conclusion of the CPS is the reverse of the common sense conclusion reached by Monica (and apparently her lawyer). This reflects the truth that what any individual may decide is a common sense approach will be influenced by his or her personal attitudes to sex, morality, and police powers, which will in turn be swayed by prevailing social attitudes.
The reality of a common sense approach is that the CPS (or rather, an individual CPS lawyer) becomes the moral arbiter of which deceptions do and do not vitiate consent. In the CPS’s published statement in its decision not to charge in 2014, it stated: “Our role is not an exercise in moral judgment nor is it intended to condone or condemn any behaviour by any individual, rather it is an impartial application of the criminal law to the circumstances of this case.” This lofty statement of principle cannot be accurate where a lawyer is using their own “common sense” to decide whether an undercover officer deceiving a partner as to his identity has vitiated her consent. That is not a decision which can ever be taken in a moral vacuum.
That takes us full circle to the present intense focus on issues of consent. The public debate on consent has evolved since 2014, when the decision was first made not to charge undercover officers with sexual offences. The notion of free choice, which sits at the heart of consent, is now increasingly acknowledged to be a nuanced issue affected by a wide variety of circumstances. In a climate where women’s (and to a lesser extent men’s) stories of rape, assault or sexual discomfort are being aired on a daily basis, consent is certainly no longer viewed as being a black and white issue in all cases. It is at least arguable that if the CPS considered these issues for the first time in 2018, a “broad common sense” approach would have led them to a different conclusion. Of course, the mere fact that a different decision might have been made today will not be sufficient for a judicial review to succeed. But regardless of the outcome, this case reinforces the fact that, when the central issue is one of how deception affects consent, what is common sense to a prosecutor is, in fact, nearly always an exercise of moral judgment fashioned by his or her response to prevailing social attitudes.
 The relationship between Monica and an undercover policeman was in the 1990s. As such, it would be governed by the earlier Sexual Offences Act 1956. This does not explicitly define consent as the 2003 Act does. However, as recognised by the CPS in its charging decision: “Although the 2003 Act is not applicable in this case as it post-dates the allegations, the principles set out in section 74 of that Act, which relate to freedom and capacity to make a choice, provide helpful guidance as to the ordinary meaning of “consent” and to that extent were relevant to this case.” Modern cases interpreting s74 will therefore be relevant to the same extent.
  EWCA Crim 1051