The Crown Prosecution Service for England and Wales has in the last few weeks1 updated it’s published guidance on sex-by-deception and other cases on what it calls “conditional” consent. The new guidance is available on the CPS web site.
There is not much to report in terms of the guidance itself. The first two cases discuss more explicit “conditional consent”, namely Assange (Consent only valid if a condom used) and another case, where consent was given conditional on withdrawal. McNally is highlighted as being different, hinging on implied rather than explicit consent. Whilst I do not like the language used in the guidance, which repeatedly refers to gender as a “deception”, that is unfortunately in line with the wording used by the court itself.
What is more interesting is that any cases depending on conditional consent must be referred to the Principle Legal Adviser (I.e. CPS HQ) before any decision is taken. For better or worse, that should introduce some degree of consistency in terms of prosecutions. It is worth pointing out at this point that even if the CPS decline to prosecute, the police will still retain a whole host of other measures that could be used (or abused) against someone whose gender is seen as deceptive.
Although not proactively published, older guidance from the CPS has been obtained via Freedom of Information2 which indicates the issue of someone’s trans status being directly relevant to the case with them as a defendant have never really been considered before. The currently-in-force guidance that would have applied in the McNally and earlier cases, which the CPS did take pains to point out was “notably out of date”, only considers old-naming of a defendant who has a criminal record prior to transition and the need to carry on with medication. The current draft version of the guidance merely expands on this and corrects some errors.
It can be seen from minutes of the relevant group meetings (20120925, 20121120, 20130121) that the McNally, Wilson etc cases were not discussed. Whilst the group did not exist at the time of the McNally appeal judgement, it was meeting after the initial judgement and after the Barker and Wilson cases so the issue was already on the radar.
It has been stated online that some members of the group met with the CPS after the McNally appeal result, but the content of that meeting and the outcome has not been made public as confidential details of cases were discussed.
1. There is no publication date, but the Wayback Machine shows the previous page not including the new guidance from the 8th September, so it is within the last five weeks.
2. The oldest CPS guidance document came with a note saying that the contacts page had been removed as it contained personal information. Of the others, all have been edited prior to uploading to this blog. The original response from the CPS included names redacted via a black marker, but were still visible on the scanned documents. No content has been edited besides blanking out names fully.
“In reality, some deceptions (such as, for example, in relation to wealth) will obviously not be sufficient to vitiate consent.”
I assume this leaves the ruling of R v EB in force that not disclosing HIV status doesn’t vitiate consent.
Correct. The CPS are not able to change case law, just issue guidelines for what prosecutions they believe are in the public interest and carry a realistic chance of a successful conviction.
The guidance does not go into the difference between active and passive “deception” (HIV status being one that only invalidates consent if you lie about it having been asked) but I would imagine any lawyer looking to prosecute will refer to the linked cases.