202403033 B4 - [2025] EWCA Crim 1359

Sections 74 to 76 of the 2003 Act have been considered in a number of authorities, although none address the factual circumstances that arise in this case and the question of filming. The authorities nevertheless provide relevant guidance and illustration.

In R v B [2006] EWCA Crim 2945; [2007] 1 WLR 1567 (“B”) this court had to consider whether a failure to disclose HIV status could vitiate consent (and, equally, belief in consent) to sexual intercourse. The proposition was rejected, Latham LJ observing at [17]:

“Where one party to sexual activity has a sexually transmissible disease which is not disclosed to the other party any consent that may have been given to that activity by the other party is not thereby vitiated. The act remains a consensual act. However, the party suffering from the sexual transmissible disease will not have any defence to any charge which may result from harm created by that sexual activity, merely by virtue of that consent, because such consent did not include consent to infection by the disease.”

In R v Devonald [2008] EWCA Crim 527 a deception as to A’s true purpose for encouraging B to masturbate online was considered to be a deception as to the purpose of the act falling within section 76(2)(a). Leveson LJ concluded that the judge was right to have ruled that it was open to the jury to conclude that the complainant was deceived as to the purpose of the act of masturbation – he was deceived into believing that he was indulging in sexual acts with, and for the sexual gratification of, a young girl with whom he was having an online relationship, not a 37 year old man. In arguing to the contrary, the applicant’s case had, “over focussed on the phrase ‘nature of the act’, which was undoubtedly sexual, but not on its purpose, which encompasses rather more than the specific purpose of sexual gratification by the defendant in the act of masturbation” (see: [9]).

In Julian Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin) (“Assange”) the allegation was that the complainant had given consent to sexual intercourse, provided thar Mr Assange used a condom. It was alleged that he had either not used one or had removed it during intercourse (“stealthing”). Following Jheeta, the Divisional Court concluded that section 76 had no application and that the issue of consent was to be determined by reference to section 74 which, as Sir John Thomas P put it at [81], was “the relevant section”. Section 76 dealt simply with the conclusive presumption in the very limited circumstances to which it applies. If the deception did not fall within section 76, that did not exclude it from falling within section 74 as a question of fact for the jury.

Sir John Thomas P stated at [86]:

“The question of consent in the present case is to be determined by reference to s.74. The allegation is clear and covers the alternatives; it not an allegation that the condom came off accidentally or was damaged accidentally. It would plainly be open to a jury to hold that, if AA had made clear that she would only consent to sexual intercourse if Mr Assange used a condom, then there would be no consent if, without her consent, he did not use a condom, or removed or tore the condom without her consent.”

In R (Monica) v Director of Public Prosecutions [2018] EWHC 3508 (Admin); [2019] 1 Cr App R 28 (“Monica”) Lord Burnett CJ identified (at [72]) that:

“What may be derived from Assange is that deception which is closely connected with ‘the nature or purpose of the act’, because it relates to sexual intercourse itself rather than the broad circumstances surrounding it is capable of negating a complainant’s free exercise of choice for the purposes of s.74 of the 2003 Act.”

In R (F) v Director of Public Prosecutions [2013] EWHC 945 (Admin) (“R(F)”) the Divisional Court decided, applying Assange, that the underlying facts, could support a conviction of rape. Consent had been given on the basis that the alleged offender would withdraw before ejaculation. The Director determined that as a matter of law the facts could not support a conviction of rape. That decision was quashed. Lord Judge CJ explained that what Assange underlines is that choice is crucial to the issue of consent. The evidence relating to ‘choice’ and ‘freedom’ had to be approached in a “broad common-sense way”. As Lord Judge CJ stated at [26]:

“Did the claimant consent to this penetration? She did so, provided, in the language of section 74 of the 2003 Act, she agreed by choice, when she had the freedom and capacity to make the choice. What the Assange case 108(44) LSG 17 underlines is that choice is crucial to the issue of consent, and indeed we underline that the statutory definition of consent provided in section 74 of the 2003 Act applies equally to section 1(1)(c) as it does to section (1)(b). The evidence relating to choice and the freedom to make any particular choice must be approached in a broad common sense way”.

In R v McNally (Justine) [2013] EWCA Crim 1051; [2014] 2 WLR 200 (“McNally”) the defendant, pretending to be a boy, visited the female complainant on two occasions, and sexual conduct followed, including consensual digital penetration of the complainant by the defendant. The defendant was, in fact, a girl. The complainant would not have consented to digital penetration by a girl. Leveson LJ, rejected the submission that deception as to gender was tantamount to one as to age, marital status, wealth or HIV status, stating:

“25.

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 common sense way’ identified the route through the dilemma.

26.

Thus while, in a physical sense, the acts of assault by penetration of the vagina are the same whether perpetrated by a male or a female, the sexual nature of the acts is, on any common sense view, different where the complainant is deliberately deceived by a defendant into believing that the latter is a male. Assuming the facts to be proved as alleged, M chose to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the defendant's deception.”

Deception as to gender could, thus, vitiate consent. As Lord Burnett CJ identified in Monica at [76], the deception in McNally did not relate to the nature or purpose of the act, but did relate to the sexual nature of the activity.

In Monica the complainant was an environmental activist who engaged in a sexual relationship with a man who was, unbeknown to her, an undercover police officer. She asserted that her consent was vitiated because had she known the truth of the officer’s identity she would not have consented to sexual intercourse with him. The case was a challenge, before the Divisional Court, to the decision of the Director not to prosecute the police officer for rape amongst other alleged offences. The Director’s decision was upheld. Lord Burnett CJ referred to the broad common-sense approach, explaining at [80]:

“An appeal to "broad common sense" in the application of any law does not relieve a court from the obligations of identifying the boundaries within which a jury will be asked to bring to bear its common sense and experience of life. For that reason, when considering the governing principle or approach it is necessary to examine how it has been applied by the courts to date, It has never been applied to deceptions which are not closely connected to the performance of the sexual act, or are intrinsically so fundamental, owing to that connection, that they can be treated as cases of impersonation.”

In R v. Lawrance (Jason) [2020] EWCA Crim 971; [2020] 2 Cr App R 29 (“Lawrance”) the deception by the appellant was a lie about fertility (whether the defendant had had a vasectomy) and the question for Court was whether such a lie negated consent. Lord Burnett CJ emphasised (at [34]) that the “but for” test is insufficient of itself to vitiate consent. Rather:

“35.

The question is whether a lie as to fertility is so closely connected to the nature or purpose of sexual intercourse rather than the broad circumstances surrounding it that it is capable of negating consent. Is it closely connected to the performance of the sexual act?”

The court concluded that it did not, identifying (at [37]) that, “[t]he deception was one which related not to the physical performance of the sexual act but to risks or consequences associated with it”.

Lord Burnett CJ later commented (at [41]) that it made no difference to the issue of consent whether there was an express deception or, as in B, a failure to disclose:

“In our view, in any event, it makes no difference to the issue of consent whether, as in this case, there was an express deception or, as in the case of R v. B, a failure to disclose. The issue is whether the appellant's lie was sufficiently closely connected to the performance of the sexual act, rather than the broad circumstances surrounding it.”

He went on to emphasise that that the meaning of “consent” is no longer a matter for development by the common law (which was the position in the nineteenth century when the seminal cases on impersonation and misconduct during medical examinations were decided). Rather:

“42.

…consent is defined by section 74 with evidential presumptions found in s.75 and the conclusive presumption in s.76. Any novel circumstances must be considered by reference to the statutory definition, namely whether an alleged victim has agreed by choice and has the freedom and capacity to make that choice.”