by Sarah-Jane Ewart, Paralegal at Centre for Women’s Justice
Should police officers found to have entered long-term sexual relationships with women whilst undercover be charged with sexual crimes? That is the question raised in Monica’s case, a judicial review challenge against the CPS for failing to prosecute undercover police officer Jim Boyling.
Background
‘Monica’ (a pseudonym) became romantically involved with Boyling when they were both environmental activists in the Reclaim the Streets movement in the late 1990s. It wasn’t until 2011 that Monica discovered that he was actually an undercover officer (‘UCO’), employed to spy on her and the rest of the movement. Monica is adamant that she would never have entered into a relationship with him if she had any idea as to his real identity.
In 2014 the Met published a report which was highly critical of the widespread practice of UCOs embarking on sexual relationships in this context. Among other things, the report criticised internal ‘fieldcraft’ guidance and the informal culture within the force at the time, both of which appeared to condone these deceitful relationships. The Met unequivocally described the practice as “an abject failure of the deployment, a gross abuse of their role and position as a police officer and an individual and organisational failing” and “a violation of the women’s human rights” which “caused significant trauma”.
A public inquiry was commissioned in 2015, the same year in which the Assistant Commissioner of the Met Police apologised ‘unreservedly’ to a number of the women tricked into relationships in this way.
Monica’s challenge arises out of the CPS’ decision not to prosecute Boyling for the offences of rape, indecent assault, procurement of sexual intercourse or misconduct in public office in relation to his behaviour towards her. In November 2018, the Divisional Court quashed her challenge, refusing to overturn the CPS’ decision.
Appeal
Now, Monica is raising funds to try and appeal the decision of the Divisional Court, arguing that this case raises issues of wider public importance and should be heard by an appeal court. For one thing, the case raises important questions about the scope of the offence of ‘misconduct in public office’, described by the CPS as having ‘blurry lines’ in this context, which is now in need of clarifying.
Crucially, the case also raises complex issues surrounding sexual activity in cases where there has been ‘deception’, and asks what kinds of deception can negate or ‘cancel out’ consent.
The case law in this area has been thorny and ideologically inconsistent, marred by conflicting and confusing decisions. Legislation says that consent is automatically cancelled out in circumstances where the defendant has intentionally impersonated another person, or deceived the defendant ‘as to the nature or purpose of the act.’ However, the courts have often interpreted that legislation narrowly, with the effect that violent sexual behaviour escapes criminal liability. In one example, a man had contacted his girlfriend with various fake personas and convinced her that if she did not have regular sex with him, he would commit suicide, for which she might be held criminally liable. In another, a man invented two separate online identities in order to blackmail his girlfriend into committing sexual acts. In both cases, the court said that the complainant was not being deceived ‘as to the nature or purpose’ of the sexual act, merely the background circumstances – and therefore, her consent was valid. This interpretation risks allowing such degrading sexual violence to escape liability.
On the other hand, the courts have found that deception as to gender identity is sufficient to negate the complainant’s consent – in cases which mostly involve young, vulnerable female defendants like Gayle Newland, Justine McNally and, more recently, Gemma Watts.
The case of Julian Assange provided a promising development in this area by criminalising ‘stealthing’ cases, in which the defendant - knowing that the complainant’s consent is predicated on the use of a condom - removes or damages the condom. The court agreed that this type of deception essentially hindered the complainant’s freedom and capacity to engage in a sexual act of her choosing, and therefore invalidated her consent.
However, this is the first time that the court has had to answer the question of what constitutes deception in the specific context of undercover policing. The Divisional Court judgment found that at the time of Boyling’s relationship with Monica, the only kinds of deception capable of cancelling out consent is deception as to the nature and purpose of the sex act itself, or involving the impersonation of a victim’s partner.
Monica’s lawyers argue that the judgment by the Divisional Court has done nothing to clarify the case law in this area, and instead has unnecessarily restricted it. In the context of UCOs’ total fabrication of identity (condoned and facilitated by the state), extended periods of deception, and the understanding that the complainant would never have entered into a sexual relationship but for the deception, there should be criminal liability. And the court’s overly narrow interpretation is inconsistent with the case law, in which consent is understood as the crucial right to choose, ‘understanding the true facts’ of the circumstances, whether or not to participate in sexual activity.
An appeal is necessary to provide clarity to these issues, to reconcile the case law and provide justice to the women traumatised by the discovery that their long-term partners were spying on them.
Monica is raising money to cover the court’s £3,500 issue fee for the application for permission to appeal and help pay towards a cost capping order for the Defendants’ costs if she loses. Please donate here to support her challenge.