Sex Matters says the CPS Guidance is confusing, may create miscarriages of justice and is unlawful. Two day hearing.
256 tweets
Welcome to Court 3 of the Royal Courts of Justice where Sex Matters (represented today by Maya Forstater and Fiona McEnena – see pic) are attempting to have a Crown Prosecution Guidance on the crime of Sex By Deception ruled unlawful via Judicial Review. Live tweets follow.
Sex Matters (SM) have Sarah Vince KC (SV) and Chris Knight KC (CK) acting as counsel, with Clair Dobbin KC (CD) for the CPS.
J = judge
PLEASE NOTE NOTHING I TWEET IS A DIRECT QUOTE UNLESS IT IS IN "DIRECT QUOTES". My tweets are merely summaries and characterisations of what is happening in court.
We are underway. SV on her feet setting out the relevant Act when it comes to sex by deception (SD).
The specific pars under Judicial Review (JR) in the CPS guidance are mainly:
"Deception as to birth sex may be relevant to the issue of whether consent to sexual activity was vitiated…
… (negated). Cases in which deception as to birth sex is a live issue may involve either a suspect who is non-trans or a suspect who is trans or non-binary. Although much of this guidance…
… contains information on trans and non-binary suspects, this is because questions of deception and consent may involve more complex issues where the suspect is trans or non-binary."
[J has already said she has done the reading and thinks two days may be a bit much for this hearing, but is happy for the arguments to be heard orally too. it's also hot and stuffy in here and is likely to get hotter. J says she's happy if people need a break at any time]
[We have the skeleton arguments. Whilst SV is going through the authorities which are relevant to this case, I might try to tweet out some sections of the skeletons]
SM are the Claimants (C) and CPS are the defendants (D). These are a few pars which may be of interest from the SM skele:
"This claim concerns the legality of the guidance issued by the Crown Prosecution Service (“the CPS”) entitled ‘Deception as to Sex’ (“the Guidance”), and forming part of a wider suite of CPS guidance on ‘Rape…
… and Sexual Offices – Chapter 6: Consent’ . The focus of the Guidance is the asserted position that “questions of deception and consent may involve more complex issues where the suspect is trans or non-binary”…
… That assertion is wrong. The error of law permeating the Guidance is that a suspect’s asserted gender identity can be relevant in law to the concept of intentional deceit vitiating ostensible consent…
… under section 74 of the Sexual Offences Act 2003 (“the SOA”). The conflation throughout the guidance of a suspect’s subjective gender identity with their…
… objective biological sex amounts to a misstatement
of the criminal law. Moreover, the Guidance is drafted in a manner which is so confusing and unclear as to be unlawful in any event."
[…]
"Questions of deception and the vitiation of consent to sexual acts arise in the context of rape and other sexual offences, intrinsically connected to the privacy and…
… autonomy of those involved. The Claimant does not shy away from the effect of its submissions: that there must be candour about one’s biological sex when proposing to engage in sexual…
… activity, unless one’s partner has been explicit that biological sex is irrelevant to their willingness to enter into that sexual activity. This may be uncomfortable for some, but it is the unsurprising price the law exacts for consent to be genuinely free in this…
… uniquely sensitive context. Clarity about what the law requires in this context, and how the CPS will approach prosecutorial decisions, is to the benefit of everyone."
[…]
"The Guidance fails to accurately reflect the law that a deception as to “gender identity” cannot constitute a deception capable of vitiating ostensible consent for…
… the purposes of section 74 SOA because it is not sufficiently closely related to the sexual act itself. That
is an error of law"
SV it is the claimant's case that an assertion as to gender identity (GI) other than as it relates to the revelation or obscuring of sex is closer to the factual scenario in Monica [an authority] than it is to McNally.
[From C's skele: "In Monica, also a judicial review of the CPS declining to prosecute, the claimant had consented to sexual intercourse with the perpetrator believing that he was a fellow environmental activist…
… Had she known that he was in fact an undercover
police officer, she would not have consented to sexual intercourse; his asserted identity was a condition on her consent. Applying the test set…
… out above, the Divisional Court rejected the submission that a deception of this kind could be
sufficiently closely connected."]
[McNally from C's skele: "Of most direct relevance to the focus of the Guidance is the judgment in R v McNally
[2013] EWCA Crim 1051, [2014] QB 593. The defendant, who was female but purported to be male, conducted a relationship over the internet with another girl. When…
… they were 17 and 16 respectively the defendant, presenting herself as a boy, visited the complainant and there was digital and oral penetrative sexual activity. It was clear on the evidence that the victim would not have consented to this had she known that the…
… defendant was female. The Court of Appeal held that these were circumstances in which consent was vitiated"
SV [has moved onto public law context] it's a matter of common sense that CPS will accept legal accuracy of its own Guidance when complying with their duty under the CPS code to make decisions
SV this claim does not concern a prosecutorial decision – D's arguments appears to invert C's position in par 21 of their skele. C is concerned with the parts of the guidance (G) which aren't concommitant to/with crim law.
J a remedy must be focused on the actual guidance
[the other member of the bench sitting alongside J has piped up]
[Okay henceforth J is President of the Kings Bench Division Dame Victoria Sharp and J2 is Mrs Justice Heather Williams.]
[There is some discussion as to which iteration of G we are talking about]
SV There are various iteration of G in the bundle before the court. We drafted our statement on the extant at that time G. The v's in the bundle include amendments, proposed amendments accepted and accepted amendments reversed.
J it's essential for us to know what remedy is being sought in relation to G. Speaking for myself, surely it would be the version currently extant.
SV the guidance as published has never incorporated any of the agreed amendments. So our args map from 2025, map onto the June 2026 version
CD don't want to complicate things but we don't want arguments about things we have agreed can come out
J could somebody over lunch make both your positions concrete in writing for us as this is essential.
[all agree]
SV returning to D's submission. The citation of Nicklinson [another auth] it is worth considering the context of Lord Neuberger's words [she goes to the authority – it's about what a code or guide is or is not…]
SV the G is probably the most widely accessible public source on the perameters of consent to sex. It is publicly available so everyone knows what it is. People who have trans IDs and orgs who represent them are likely to look to the G so they don't commit a serious sexual…
… offence on what might be an innocent misunderstanding of the law. It therefore has an importance above just being G for prosecutors, even if that is not its intended audience.
SV the test of a policy issued by CPS was set out by the Supreme Court. Standards can be summarised – what does the law say? Does the G encourage someone to act in contradiction to that? What would a prosecutor do when faced with a case of vitiation by gender ID, but not in sex
J give me a "for instance" of that scenario
SV that is agreed between the parties – that is the basis of the Crown v H was prosecuted. That was a deception as to gender ID. The C in that case knew the sex of the defendant.
J remind me of it
SV there is a sentencing note in the back of the supp bundle. This was one of the cases provided to us in the WS (witness statement) of Mr Guest. The facts were as follows. D was female. C was female. D told C she was a woman – disclosing her sex, but that…
… she lived and ID'd as a man. She repped to C that she had had full gender reassignment surgery and stated that she had a pseudo-penis and it was capable of erection and penetration. The indictment had three counts which D pleaded guilty…
The most serious was assault by penetration – C believed she was being penetrated by the pseudo-penis, but they were in fact D's fingers. There were two further counts related to D performing cunnilingus on C.
SV there is no authority at all in relation to deception as to gender ID (GID). Returning to the SC cats in A. Ground 1 of this claim is that the CPS guidance – cos of framing of GID as a qualifying condition upon consent – that being a condition whose breach by deception…
… "is capable of acting on the legal integrity of that consent. Put simply ground 1 is that G is wrong in law"
Ground 2 freights a correct statement of the law with irrelevance and misdirection to such an extent it misrepresents the true picture of the legall position. C does not seek legal perfection. C merely wants to avoid prosecutors making the wrong decisions.
J2 even if you are not successful in ground 1 you still hope to be successful in G2.
SV yes if G1 does not meet the threshold, nonetheless, everything we complain of in G1 plus what we complain of in G2 will meet the threshold for a cat 3 [?]
J2 doesn't G2 require the court to accept your essential proposition?
[SV is conferring with CK]
SV "our position is no – even if the court does not accept our proposition that GID is not capable of being a qual condition that the way in which the G is drafted is so confusing that it will materially mislead Crown prosecutors to misapply the law"
J we may have to revisit this.
SV if i can pls – the refs I will make to the G is the G in the core bundle.
J2 the June 2025 one
SV it is
SV the intro to G – our central submission on this passage is predicated on an error of law – 1 that there is a relevant difference between a trans suspect and a non-trans suspect 2 that the rel difference is the suspect's GID and 3 that this has a bearing on the assessment of
an allegation of deception as to sex.
Those three errors combine to form a legal error. Logically if that were not D's pos, the G would be unlikely to go further.
That 3 stage test is on p62 of the core bundle [which we can't see, yet]
SV reads out "questions of deception and consent may involve more complex issues
where the suspect is trans or non-binary"
SV this is irrelevant – there is no legal definition of difference of and between trans and non-binary
SV deception is "slippery". in the arena of persuading people to engage in sexual activity may attract serious opprobrium but not be crim. Obscuring one's sex deliberately is an act of deception. The motivations for that deception are nothing re crim liability.
The motivation varies. In sex activity – the more convincing the deception the greater the need to be frank about his or her sex.
J ?
SV a trans ID male who presents very convincingly as male… in her life the fact she is not male is of no relevance and she does not have to
disclose her sex. Our case is that in the context of sexual content, the more convincingly someone presents the greater the imperative to reveal it, because of how effectively they conceal it.
There is no moral weighting to this. This is a neutral assessment of the facts and the application of the law to them.
Our submission is that G presents GID as a qualifiying condition of consent which should be considered.
It raises the prospect there is a relevant diff between trans and non trans and suggests a GID (as opposed to sex) is operative on the legal status of consent.
In the case of Monica where the reviewing lawyer thought McNally could be analysed as GID being relevant. The G invites a misreading of McNally.
The use of the word ID in Monica was a synonym for impersonation – rooted in the meaning in the conclusive presumption. Monica was a case about D's POLITICAL ID, the reviewing lawyer's conclusion did not assist C in Monica. G invites prosecutors ( P) to consider ID
SV it is our sub that GID is too unstable to be in the G. It's like a political ID. A disclosure of GID which is not about sex is not exculpatory re an offence as to sex. For eg. If a man who IDs as a woman has deceived a sex partner as to sex, but who has told their partner…
… I am a woman. The G invites Ps to charge or decline to charge on the basis of GID. This is inconsistent with the law.
Our analysis of H [case law] – D deceived C into embarking into a shared fiction – that H was a man. C discussed with D that she was prepared to see her as a man on the basis she's had full genital surgery
If D had undertaken that surgery – it would be a fiction that she was a man.
"Where a deception qualifies – the injury it causes must be integral to the nature, purpose or performance of the act to which consent is given."
In the case of B consent was given to unprotected sex. The risk was HIV. In Lawrence same consent, but injury was pregnancy. Court held neither were close to the nature, purpose or performance of the act.
The deception as to whether D in H had genital surgery was incidental but not integral to the assault by penetration. It persuaded the victim but did not meet the threshold of proximity.
In that case deception could have been achieved if D had a pseudo-penis capable of penetration.
C does not accept offence amounted to assault by penetration on the assumption she was being penetrated by a penis.
We say the deception was not that she was being penetrated by a penis, belonging to a man, but a pseudo-penis which had been attached to the genitals of a woman.
[SV talks about case law which includes assault by penetration includes body parts which have been surgically attached and specifies trans surgeries]
SV there cannot be a loophole whereby someone with a pseudo-penis cannot be accused of rape or conversely
… that someone with a pseudo-vagina cannot also be raped. Body modification cannot change the basis of consent.
SV might we take a break
J – okay back at quarter to
[Js rise]
[we take a break]
[we're back – CK is on his feet]
CK there was a q re relief
J yes
CK i'll put this in writing but this about versions of G circulating between us, but no amendments to G have ever been published, so were we to succeed on G1 – the target for the quashing order is the Q of Sex by
Deception which we say permeates the G and therefore the whole thing needs to go. If we succeed only on G2 that the error in law is not so serious then we seek a declaratory remedy which should require the Director of Public Prosecutions (DPP)
… to revisit the sections of the G which the court finds problematic.
[there are still a number of versions of G which are circulating – 2025, 2026 (both published) – plus agreed unpublished amendments, some of which have been withdrawn]
[J's understandably want clarity on this]
J2 so we read the 2026 published G with the additional agreed amendments from the DPP
CK yes unless DPP changes his mind
[SV back on her feet]
SV I'm analysing R v H
J yes
SV a proper application of the reasoning in McNally can only lead to the conc that the assaullt by penetraion in H was the other side of Lord Justice Leveson's key analysis in McNally
[from talking in the break H is an authority cited by D in this JR]
SV in the case of H it was the physical act of penetration to which the victim consented which was diff to the act of pen which took place. The physical act was diff because the act of pen was with a different object, not because the object was or was not a marker of H's sex
SV D's claim that the conviction was secured by the misapplication of the law, but that a correct application of the law would achieve the same result [losing my way here]
[okay you can consent to penetration by one thing, and if it's a different thing that can be assault. It's the fact it's a different object]
SV neither the nature or the act of oral sex was changed by H's female genitalia were untouched by surgery. This is the opposite of McNally
In H the victim knew throughout that D was a biological female. If H had gone through surgery – however convincingly she passed, she remained female. H's fingers tongues, and pseudo-penis would remain female. Her chest, without breast would remain female.
There was consent.
J2 but in McNally the physical act was the same – so it's not that consent cannot be vitiated.
SV absolutely the physical nature of an act can be the same – digital penetration – the legality of the consent can be vitiated by its sexual nature. The injury
in H was that the complainant was alone in what she believe to be the shared fiction that H was male. H did not engage in that fiction. Where a C knows the suspect's sex, we say their GID will not qualify for consideration under s74 of the SOA
It qualifies under the ordinary principles of consent. GID can only related to the broader circs of sexual activity. It is said that the prosecution of H was on an error of law. This court is not being asked to make a ruling on a case not before it. It is raised as part…
of a sentencing note disclosed by D to this court.
We simply say that analytical clarity on sex needs to be applied.
SV D says he intends to continue using the wrongful G which essentially green-lights more wrongful prosecutions and that is the essence of this case.
[we move to a WS from a Mr Guest – no idea who he is or his relevance to this case]
SV Mr Guest (MG) provides examples re mens rea – the G applies the same mens rea to obscene or indecent messages to grossly offensive messages – this is a straightforward application of the principles of stat interpretation. Secondly re non-fatal strangulation…
… definitions are also consisted to stat interpretation. These do not assist the D. There may of course be novel situations. If a woman only consents to sex with a circumcised man. If a deception about circ is arguably close to a penetration deception
If this is connected to a religious reason that is too remote from the act to be considered sex by deception.
SV the error of law arises from the persistent conflation of sex and GID – it not only allows the reader to believe the two are interchangeable, but it invites that…
… reading. Saying trans and NB makes things more "complex" and devoting most of the chapter about trans people. Consistent use of the term "sex and/or GID" equating the two. It happens 17 times throughout the G.
The encouragement to treat GID as a qualifying deception, it's wholly possible that a prosecutor might consider GID as a case for prosecution. eg if a D discloses their GID rather than their sex to a prospective partner and C agrees that this is what has happened….
… notwithstanding the fact that their sex has not been disclosed, and C agrees this is what happened based on the belief of D about their sex, the prosecutor might decide no offence has occurred.
Convresely if an NB has disclosed their sex but not their NB status, a prosecutor may decide there has been a deception and proceed to charge.
SV GID which has never been held to be a qualifying condition in any case in law is included in the G. GID has been included in G for a purpose. It is insufficient to state that GID has not been expressly excluded by the authorities.
SV there is a reason D has chosen to included GID in the G as opposed to one of the other 1000s of conditions a person may place on consent.
[we're now going back to agreed changes to G which the DPP has now resiled from agreeing to change]
SV the retaining of this section enables D to continue to advise prosecutors that the completion of cosmetic surgery will continue to be a qualifying matter on consent. It's not set out in G HOW GID might meet the test as set out in the authorities…
… not surprising given D's definition of GID is how they present and experienced themselves. It is incapable of independent verification. The authorities have listed…
… plenty of verifiable factual circs that don't meet the test. None of the auths have ever found a non-verifiable authority to meet the test. Monica found the political beliefs of a police officer to fail the test.
SV the G treats Sex and GID as separate bearings on consent. Moving now to Ground 2 (G2) [of their claim against the DPP (D)]
SV the obs of Lady Chief Justice that there may be no bright lines to draw in a situation does not bolster D nor undermine C. There is a clear distinction between sex and gender. One is objectively factual, the other relies on self-report.
J [asks about surgery]
SV gender-reassignment surgery is a form of cosmetic surgery – a physical alteration does not alter somebody's sex. It cannot. However I accept that…
… there needs to be great care in the analysis because of the range and instability in the range of GID, we cannot say that gender surgery follows from GID, but GID is the subjective belief.
J is that not an argument for taking things on a case-by-case basis.
SV I understand that approach and we accept new factual scenarios will cross the desk of Ps, even in a relatively niche area as sex by deception – however in terms of the G to Ps – it must be clear enough
for them to understand that GID is not gender expression or presentation – (gait, clothes, mannerisms) and it is not gender surgery. it is not hormonal intervention. These things are diff cats and that must be understood if the G is to be applied.
It's illustrative of the diff by which the G is expressed that one is likely to slide around between the cats which are quite different in nature. For purposes of G2 in particular it is not helpful for G to create further uncertainty which G contains in "unwelcome abundance".
SV it really is very warm
J it is "some things I control. many things I don't". Would you like to sit down
SV thank you I'm better standing
J well give us an alert if you need to
[SV takes J to "trans and non-binary persons experiences" in G]
SV this advises Ps to the effect that T and NB have less culpability for a deception for which a non-trans suspect would be culpable.
[the mysterious Mr Guest's WS is cited again]
SV MG cites the guidance in relation to sex and domestic abuse – it is clear to Ps – the entirely proper purpose of that approach is to ensure Ps do not analyse evidence through misconceptions such as "rape myths"
J tell me how this section helps your argument over deception
SV I will – in the trans section – it says that many people genuinely regard themselves as men or women, which suggests their culpability for deception is minimised…
Here is the relevant bit:
How a trans or non-binary person experiences and expresses their gender can be a
complex issue. The decision on whether to prosecute must be based on the evidence in
each individual case, but the following information is provided for background context,
as it may assist prosecutors to make more informed decisions:
• Many people who have transitioned may not regard themselves as trans, but
simply as a man or a woman.
• Gender identity can be fluid and/or emergent for some persons, particularly for
young persons, who may be exploring the nature of their identity and/or sexuality,
or for non-binary people, who may identify as a man and a women or neither.
• A person whose gender identity isn’t the same as their sex may express their
gender through their speech, dress, gestures, mannerisms etc, without this
being a fabrication, a performance or a deception. (It is important to recognise
that non-trans people may also have a multitude of ways to express themselves,
even if their gender identity is the same as their sex.)
SV this is expressly stating that if a deception comes under the guise of self-deception then it is not a deception. This is a "serious and stark misstatement"
SV re contingencies
J yes
SV "difficulty here is framing – sympathetic, understanding, consistent in tone with how the perhaps unexpected conduct of C's in rape cases for eg may defy expectations."
SV "it is the examination here it seems in purely sympathetic terms of why a trans person may deceive somebody about their sex, may deceive a sexual partner about their sex"
JS we do have to be mindful of opening words that decision to prosecute is on each individual case
SV yes but importance of background material is particularly salient when they are covering an area with which they are not familiar
SV and when an explanation of the motives of people accused of rape or serious sex offences which are expressed in terms of the ord offender-centric approach it is going to be incorporated a P's assessment of the evidence.
SV the fifth point in the G "Some trans people may be wary of revealing their birth sex due to social stigma,
transphobia or safety considerations, which may produce high levels of anxiety."
SV if I can take a side-step in respect of the final point here which illustrates just how far the levels of confusion have gone in G – that to incorporate a T and NB experiences the question of Intersex/DSD…
… the latter are medical conditions. They are not subjective IDs. It is at a minimum inappropriate to incorporate a section on people with DSDs, which are very individual conditions in a broad section on the experiences of T and NB suspects.
Since the two are wholly unrelated.
[this is the clause referred to above: "Intersex / VSC persons may have particular difficulties in communicating their sex to potential sexual partners, as
… their gender/sex presentation is inherently complex. The language required may not be readily understood unless explained in detail, which they may consider inappropriate."]
SV "it is striking that a section about the personal difficulties of suspects would be used as a part of the intro to making an assessment on the evidence in allegations of rape and serious sexual offences."
SV "that tone is uniquely sympathetic and has a misleading effect and it invites misinterpretation and misapplication of the law".
If C has failed to persuade the court of the frank legal error in G1 we submit that the impact of this statement in which everything we complain about in G1 takes the G as a whole across the threshold on this second Ground alone
SV the G advises Ps that "Depending upon the circumstances of the case, a trans or non-binary person
(including those who have a GRC and / or have had gender reassignment) may
deceive a complainant as to their sex if they choose not to disclose that they are
trans / non-binary, or if they make a deliberate false assertion or lie in respect of
their sex and / or gender identity."
SV two errors here a lie about GID is irrelevant s74 offence of SD and increases the risk for T and NB being erroneously prosecuted on the basis of GID. D has not even tried to defend this passage.
SV the list in G in its entirety is unswerving in that ID is a relevant qualifying factor of consent. They say that first there is sex and then there is a further test which is GID.
SV this is not an irrelevant matter – it says GID is a relevant and qualifying matter when it comes to consent.
SV primary evidence of assault by penetration becomes subordinate to a secondary evidence of GID which is irrelevant to the issue of sex by consent.
J we're going to take a break till 2pm. I will reiterate what I said before. The conditions are difficult, but we are paying close attn to the arguments being made. Thank you.
[court rises – lunch]
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I have requested the witness statements by the Mysterious Mr Guest and more info on the case of H. Given both have been covered extensively in open court, I think I should get them.
I am also delighted that the High Court approved collocational verb for cunnilingus remains "to perform". It always struck me as odd that one "has" sex and "gives" (ahem) a BJ, but one "performs" cunnilingus.
I'm sure books have been written about the differences in the linguistic framing of sex acts and their histories, but I haven't read any.
Anyway back to the very serious matter in hand (stop it…) – after lunch we are going to hear next from Chris Knight KC who will make the main public law arguments on behalf of Sex Matters and I suspect that may take us to the end of the working day…
… as it is swelteringly hot in Court 3 and I doubt their Ladyships will want to stay there for longer than is necessary. Dame Victoria Sharp has already said she thinks a two day hearing is a bit generous but given the pace at which we are proceeding…
… it looks pretty certain we'll use the full two days.
[we're back sitting again]
CK you should have a short note on relief
J thank you
CK I'd like to talk about standing
J have you finished SV?
SV yes unless you have any qs
J you mentioned a speaking note did you mean that or your skeleton
SV I almost certainly meant skeleton, sorry
J "don't worry we're all being cooked". Explain relationship between G1 and G2
SV because guidance treats all cats of under the umbrella of GID, there is category confusion in the area
where there can't afford to be any. So if you are against us in G1 – not unlawful and GID can be a qualifying conditions of consent, then we say via G2 that the confusion, elisoin and imprecision in the G as a whole
that is risks a failure properly to understand what applies and when – eg if the court takes the view that GID can be a qualifying condition it would be a qual distinct from sex and Ps would have to understand that
GID is distinct from sex and its not in the G
J "so to use a non-legal term, it's a fudge"
SV yes. yes.
J thank you. Mr Knight…
CK re standing – if they wanted raise it they should have raised it earlier and now they have raised it – it's a bad argument. They say a JR should have been raised with a hard case and they say that SM has no expertise. This is wrong. SM have relevant and expert standing.
CK on standing lets look at Supreme Court (C) and Lord Reed in the AXA case. The issue there arose because of a partic narrow approach taken to standing in Scots law as to whether or not someone has "title to sue" and SC aligned Scots law with E&W and Lord Reed
explained why a more liberal approach was appropriate.
"There is thus a public interest involved in judicial review proceedings, whether or not private rights may
… also be affected. A public authority can violate the rule of law without infringing the rights of any individual: if, for example, the duty which…
it fails to perform is not owed to any specific person, or the powers which it
exceeds do not trespass upon property or other private rights. A rights-based
approach to standing is therefore incompatible with the performance of the courts’
function of preserving the rule of law, so far as that function requires the court to
go beyond the protection of private rights: in particular, so far as it requires the
courts to exercise a supervisory jurisdiction. The exercise of that jurisdiction
necessarily requires a different approach to standing.
[CK then invites Js to read "rather famous" next par 170]
"170. For the reasons I have explained, such an approach cannot be based upon
the concept of rights, and must instead be based upon the concept of interests. A
requirement that the applicant demonstrate an interest in the matter complained of
will not however operate satisfactorily if it is applied in the same way in all
contexts. In some contexts, it is appropriate to require an applicant for judicial
review to demonstrate that he has a particular interest in the matter complained of:
the type of interest which is relevant, and therefore required in order to have
standing, will depend upon the particular context. In other situations, such as
where the excess or misuse of power affects the public generally, insistence upon a
particular interest could prevent the matter being brought before the court, and that
in turn might disable the court from performing its function to protect the rule of
law. I say “might”, because the protection of the rule of law does not require that
every allegation of unlawful conduct by a public authority must be examined by a
court, any more than it requires that every allegation of criminal conduct must be
prosecuted. Even in a context of that kind, there must be considerations which lead
the court to treat the applicant as having an interest which is sufficient to justify his
bringing the application before the court. What is to be regarded as sufficient
interest to justify a particular applicant’s bringing a particular application before
the court, and thus as conferring standing, depends therefore upon the context, and
in particular upon what will best serve the purposes of judicial review in that
context."
[CK then moves to another authority from the appeal court – Lord Justice Lewis re THE KING (on the application of LUTON LANDLORDS & LETTING AGENTS LIMITED) v LUTON BOROUGH COUNCIL]
Re standing:
"Other groups or legal entities may have a sufficient interest in a matter for the purposes of section 31(3) of the 1981 Act. Some groups act in a representative capacity, bringing a claim on behalf of, or to protect the interests of, their members. This has been referred to by commentators, and in some case law, as associational standing, although the phrase is, perhaps unhelpful, and does not fully reflect the basis upon which the body concerned has standing, i.e. the body is acting on behalf of, the interests of its members or those it represents. These types of situations typically but not exclusively involve bodies such as unions or professional bodies. Claims may also be brought by pressure groups who may be particularly active, and have particular expertise, in a particular area (such as environmental groups or social welfare groups) or be formed to campaign on particular national or local issues. They may have sufficient interest to bring a claim to challenge a particular measure, particularly if they have established expertise in an area. The fact that a company is incorporated to bring a challenge in such circumstances would not, of itself, prevent the company having a sufficient interest in the matter.
There may be instances where a measure or decision affects the public generally, not merely a particular individual or even a group of individuals. In appropriate cases, the courts have held that an individual, or a group, may bring a claim because there is a serious issue of public importance which needs to be addressed (see the observations of Lord Reed in Axa General Insurance Ltd. v HM Advocate [2011] UKSC 46; [2021] 1 AC 868 at paragraph 170). It is also relevant to note that the courts have adopted an increasingly liberal approach to standing in such cases."
[And another authority on standing which I have missed]
CK this one notes an overly restrictive approach to standing may be inimicable to the rule of law. In the light of those authorities and points of principle I make the following 3 subs
CK these issues are at least arguable enough to grant permish for a JR. This is a case where the law needs to be advanced and outcomed.
Secondly – this is not a case where there is a better placed challenger. The CPS can't say that this should be brought by an individual
… and then tell us that it only happens very rarely. That puts a burden on the small number of individuals in this category to challenge the guidance. The likelihood of individuals having the resources or capacity to challenge to the CPS whilst also being charged with crime
or preparing to go to court as a victim of a crime. This case is the positively better vehicle to test the consistence of G with the law precisely because it is not dealing with a specific case. It just concerns guidance and the law.
CPS are also relying on standing issue by referring to the Hampstead Ponds judgment which said SM did not have standing. Less emphasis is now being placed on this as the decision has been overturned.
It's irrelevant anyway as that was less about standing than whether there was a more appropriate remedy.
Thirdly there is no justification in the authorities for the CPS to recast the nec expertise in this case to only be within the prosecution of sexual offences. The core issue is an inability to properly distinguish between bio sex and GID and its importance to that matter
The confusion is seen in the change in title of G – in 2022 it was called "Deception as to Gender". Now it is known as "Deception as to Sex". [CK basically saying that CPS don't understand what GID is]
CK SM also DO have expertise in this matter. It is their core purpose. Look at their charitable objects. Not now. It's in the bundle, but do look at this organisational framework document "Why Sex Matters for Human Rights, Our Organisational Framework"
It's here, organisational framework fans: sex-matters.org/posts/the-legal-system/why-sex-matters-for-human-rights-our-organisational-framework/
CK CPS has already accepted that SM was making valid points drawn from its expertise and agreed to make changes to its guidance.
[goes to authorities – if an informed person responds to a consultation and doesn't like the outcome – they will usually be treated as an aggrieved person and are more likely to have standing]
Finally – your ladyships have the point that SM have an established track record of taking part in litigation usually as an intervenor but sometimes directly. You have a list of them in the bundle.
For those reasons we say there is nothing in the objection to the standing of SM in this claim. That's me. Can I assist with anything.
J no thank you
[CD stands up]
CD the DPP has no ideological skin in this game and only wished to help Ps with this guidance.
CD as you may have seen – since 2024 there have only be 3 cases that raise this matter. The audience for this G is small. It is written by experts in this field for Ps and Ps alone.
CD the law is not clear cut, there are not the bright lines my friend contends there is. May I make it clear that the approach taken in this case in the End Violence Against Women case. The DPP does not insist on any strict taxonomy. If this court concludes this guidance…
… contains mistakes as to law, he entirely accepts that and the G will be quashed.
That is a very distinct legal distinction – we make the practical concession that the DPP is subject to your superintendence and don't say he isn't.
[J2 wants to drill into this]
CD if you think there are clear errors of law that's one thing. If there is a finding of confusion, that might be a q of fact and degree.
[j has more]
CD a charging decision exposes them to a process of law, but it's a court that decides whether
… there is a case to answer. On behalf of the DPP we're not trying to be technical, but practical. if you think there is an error of law, that's sufficient.
CD on standing which is linked to the merits of the case. From the outset – ofc its accepted C has a sincere and committed interest in issues related to bio sex and that its real, immutable and sometimes important. And we take no issue with the fact that might make them
… an interested party in some contexts and even litigator themselves. But here is that sufficient to give them standard in the DPP's guidance in regard to deceit. almost every challenge to the DPP is brought by someone directly affected by it
JRs are brought by Cs if a decision not to prosecute is made or if they are directly affected by a policy. a very rare one was made by the End Violence Against Women – it was a coalition of women's groups repping a large number of women who were victims of violence
both because of their expertise and because they were directly repping people affected.
Also the Cornerhouse litigation brought by an NGO with expertise in overseas prosecutions saying there should have been a prosecution of BAE systems.
There was a specific factual basis to that claim. This case has no factual nexus on which to judge this claim. C stands out in that it doesn't rep people affected by the DPP's policy and stands out in the field of public law.
It is conspicuous that SM are acting in an area where there aren't hard and fast rules.
J SM did respond to consultation
CD the court needs to be careful in this field that just making representations gives them standing.
CD SM is not a surrogate represting the interests of others like the Poverty in Action, it can't be said to be acting in the public interest. It has viewpoints which are legitimate but hotly contested by people with other legitimate views.
[she raises the Good Law Project]
[It is a document re provisions in relation to standing – might be a judgment on GLP's standing a project – CD hasn't said what it is nor is she reading it out, she's asking the Js to read it so I have no idea what it is unless it is the judgment which set a precedent on…
… campaigning groups to have standing in a matter of JR. I think it's this: www.judiciary.uk/wp-content/uploads/2022/02/The-Queen-on-the-application-of-1-Good-Law-Project-2-Runnymede-Trust-v-1-Prime-Minister-SSHSC-judgment.pdf
"The last case
is of particular interest because it shows that even a newly established campaigning
organisation may be permitted to complain of a breach of the public sector equality
duty, or other ground of public law. What is of importance is that in all such cases of
which we are aware the NGO concerned did have a particular interest and in a sense
was representative of an identifiable group in society which was affected by the
decision or policy in question."
[CD goes back to the lack of a factual matrix]
CD CK's point that this case is all the better for not having a factual matrix is wrong and against the grain. There is a risk the court will make a hard decision in the abstract.
which may have unintended consequences.
[the court is now very hot – CD is making constitutional points about standing. Can't help thinking that the fact we are here having a two day JR hearing goes a long way towards SM having standing]
[Without standing, the rest of the case does not get assessed, so the judgment could just decide SM does not have standing, give reasons, job done. The CPS G stands. It seems like a reach, but CD is spending enough time on it, she must think its a goer]
CD the G is not about being used by the public to regulate their conduct. The SC has spelled that out and it's really important to be aware of that.
[goes to another authority which considers prosecution decisions which may be made in relation to assisted dying]
ukhumanrightsblog.com/wp-content/uploads/2014/06/uksc_2013_0235_judgment.pdf – basically says the DPP can't modify the law
CD that is made in relation to standing as it highlights the importance of facts and reflects the risk of the C's case. The DPP's point is that the law isn't as settled or as clear cut as C would have it
CD and he can't – it would be wrong for him to stop cases coming to court and let the courts decide where teh bar lies. The f diff between the two parties is that SM say the law is pellucidly clear. The DPP's concern is that the law can't be stated that clearly and H is a case…
… in point of a very complicated situation. C's want a statement of hard-edged law and DPP says these cases need to be judged on the facts in each within the G given to P
J speaking hypothetically if the position were to be in relation to error – the error would tend to result in a failure to prosecute the consequence in those situation was that those failures could not be challenged through rulings in CC or on appeal and that would be
contrary to the public interest.
CD but in those cases, as it was in Monica and F – a C can bring a JR case
J so that's on the C?
CD yes. F was said to be highly unusual. It's not – it's now a well-trodden path. There are also internal structures and mechanisms within the DPP
J I wouldn't take much persuading the authorities are diff to reconcile.
CD I think it's important to retrace some of the case law. BBA does look at and delineate all case law. But BBA moves the law on again, as it concerned a camera. DPP is worried about drawing a line
when it's the court's job to do that.
J2 is standing primarily about relief
CD yes we don't say you can't rule on it
CD we accept JRs may be brought by interest groups. the concern here is that the claim comes before the court without any factual context. There are other individuals who could bring proper challenges.
CD may I turn to the law in relation to deceit and the vitiation of consent. This is a really diff area of law and one of the reasons the Law Commission intends to consult in this area. There is now a body of judgments where courts are trying to find the line as to where
conduct is deceitful when it comes to sexual activity and where it is not. There's an ongoing problem in the SOA s74 – 76 and their interrelation. We've embarked on this JR without looking at them. Shall we do so now?
J yes
s74 "“Consent”
For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice."
This is s75
And here is s76 – the conclusive presumptions about consent:
CD takes us to s79 where appendages created by gender reassignment surgery is specifically reffed (part 3)
[CD wants to take us to some of the cases that "wrestle" with this]
J before we do that let's have a break.
CD the prospect is so alluring…
J back at 25 past
[court rises]
[we're back]
CD begin with case of Jetta. Judgment of Sir Malcolm Judge [?] in Jetta – C was in a rel with a man. Man was posing as a copper telling her to have sex with her boyfriend or she'd be fined.
I can't find this judgment, but it apparently looks at the construction of s74 etc of the SOA 2003.
www.oxbridgenotes.co.uk/law_cases/r-v-jheeta
That's it. Now we're onto Assange and the condom deception.
"In our view, therefore, s.76 has no application. 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. His conduct in having sexual intercourse without a condom in circumstances where she had made clear she
would only have sexual intercourse if he used a condom would therefore amount to an offence under the Sexual Offences Act 2003, whatever the position may have been prior to that Act."
Next par: "It might be said that Mr Assange's conduct in having sexual intercourse with AA without a condom (or in continuing sexual intercourse with AA after removing, damaging or tearing the condom) was deceptive. Assuming it was deceptive, then in
our view it was not deceptive as to "the nature or quality of the act". We accept it could be argued that sexual intercourse without a condom is different to sexual intercourse with a condom, given the presence of a physical barrier, a perceived difference in the degree of intimacy, the risks of disease and the prevention of a pregnancy; moreover the editors of Smith & Hogan (lih edition at p.866) comment
that some argued that unprotected sexual intercourse should be treated as being different in nature to protected sexual intercourse. It seems to us, however, that s.76 should be given a stringent construction, because it provides for a conclusive presumption. The issue of the materiality of the use of a condom can be determined under s.74 rather than under s.76."
Next par (88): "It appears to have been contended by Mr Assange, that if, in accordance with the
conclusion we have reached, the deception was not a deception within s.76 (a
deception as to the nature or quality of the act or a case of impersonation), then the
deception could not be taken into account for the purposes of s.74. It would, in our
view, have been extraordinary if Parliament had legislated in terms that, if conduct
that was not deceptive could be taken into account for the purposes of s.74, conduct
that was deceptive could not be."
We go to case F.
CD the issue in this case could transform whether ejaculation without consent could be transform consensual sex into rape.
Here it is: www.judiciary.uk/wp-content/uploads/JCO/Documents/Judgments/f-v-dpp-summary.pdf
CD court looked at past history of couple. “The facts suggested by the evidence in this case are quite different. … Consensual penetration occurred. The claimant consented on the clear understanding that the intervener would not ejaculate within her vagina. She believed that he intended and agreed to withdraw before ejaculation. The intervener knew and understood that this was the only basis on which she was prepared to have sexual intercourse with him. …. In short, there is evidence that he deliberately
ignored the basis of her consent to penetration as a manifestation of his control over her.”
CD Develops the idea that choice is an essential component to consent.
[CD takes us to McNally – this is the digital penetration case]
CD inviting Js to read various pars. Picks up at par 23 [noting the judges when referring to gender meant sex} "The case for the Crown was that M's consent was obtained by fraudulent deception that the appellant was a male and that had she known the truth, she would not have consented to acts of vaginal penetration. Mr Wainwright argues that deception as to gender cannot vitiate consent; in the same way deception as to age, marital status, wealth or, following EB, HIV status being deceptions as to qualities or attributes cannot vitiate consent. Thus, he submits that Assange and R(F) can be distinguished as the deceptions in those cases were not deceptions as to qualities or attributes but as to the features of the act itself."
Next par: "We reject this analysis. First and foremost, EB was not saying that HIV status could not vitiate consent if, for example, the complainant had been positively assured that the defendant was not HIV positive: it left the issue open. As Mr McGuinness for the Crown contends, the argument that in Assange and R(F) the deceptions were as to the features of the act is not sustainable: the wearing of a condom and ejaculation are irrelevant to the definition of rape and are not 'features' of the offence and no such rationale is suggested. In the last two cases, it was alleged that the victim had consented on the basis of a premise that, at the time of the consent, was false (namely, in one case, that her partner would wear a condom and, in the second, that he would ejaculate outside her body)."
Next par: "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."
Next: "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 appellant's deception."
CD I think it has some facts to try to judge this against. Looking at the H case a het female had sex with a woman who she believed had a male sexual organ. With this case and McNally cases its very hard to say if the sexual act is that different. In McNally she was fundamentally
deceived. In the H case it demonstrates the artificiality of the C's case. C accepts in H that the penetration by something that it is an offence because it's a deceits as to what you have been penetrated by. But on the C's view if she had been penetrated by the hand that would
not amount to an assault. the real problems in that was that C thought she was being deceived by thinking she was entering into a sex relationship with someone who had a male sexual organ and was therefore a man. We need to be really careful about bringing
the C's view into this case as in H the C believed her partner had changed sex.
CD SM says GID is too unstable because it allows people to simply assert they are a woman or a man, but that's why we need an assessment of the facts of each ind case
CD I think the H case is helpful for the parties in this claim as it allows us to delineate our positions. Our primary case is that C's case comes down to an artificiality and says nothing about the ind circs someone finds themselves in. Look at Jheeta.
CD C wants to look at the test of close connection. The case of H clearly falls within that test. The point I'm making on these authorities – some of them look at s74 through broad and narrow lenses. The point from DPP is a case like H comes through on the narrower lens.
CD having taken you to the sentencing note in H it does set out in some detail some of the issues. Obvs v conscious this can't be a proxy appeal, but at least it gives some sort of factual matrix to test our opposing propositions.
CD I am saying the acts remain the same regardless of who is engaging with them.
[CD takes us to Monica – the undercover copper case]
CD the facts of this case are notorious
www.bailii.org/ew/cases/EWHC/Admin/2018/3508.html
CD raises par 48: "The CPS lawyer's approach was to consider the position under the Sexual Offences Act 1956 and at common law before addressing whether the case law under the Sexual Offences Act 2003 might assist the claimant's case in what was said to be a wider or indirect way. We will do the same even though it was an approach which, at least arguably, may have been unduly favourable to the claimant. It assumed that the 2003 Act did no more than restate and clarify the meaning of "consent" rather than alter or advance it. Although that assumption may be correct any prosecution would have to be under the 1956 Act as amended. There is no decided case which holds in terms that the 2003 Act has made no difference to the notion of "consent". There is a possible indication in Assange that the 2003 Act has made a difference, and there must at least be room for the argument that the abolition of the offence of procurement may have widened the scope of the offence of rape."
CD much of the discussion considers the position pre-2003, but at par 66 the court picks up SOA 2003:
CD invites the court to read on…
CD and there is a summary in par 72; "For the purposes of the challenge to the Director's decision, it is unnecessary for us to say which of these explanations is correct. The question is whether (assuming that decisions on the 2003 Act are material) the development covers the circumstances in play. The claimant does not say that section 74 of the 2003 Act changed the law because her reliance on subsequent jurisprudence is predicated on the premise that it did not. 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 section 74 of the 2003 Act. Whilst this may represent a relatively modest extension of the way in which the law examines "consent" in the context of sexual offending it does not support what would be the profound change in approach to consent advanced on behalf of the claimant."
CD then takes us to par74 "The claimant submits that on this formulation there are no categories or constraints; merely the application of broad common sense. It is arguable that the premise of R(F) is that section 74 brought about a change in the law, but on the footing that it did not, we repeat what we have just said about Assange. Although there was no deception as to the nature and purpose of the sexual act, the deception was closely connected with it. The case does not provide support for the substantial leap contended for by the claimant."
CD what the course is effectively saying is that in this case the man being a cop rather than an env protestor is a jump too far. The court considers F and McNally. Re McNally (still in Monica) "The Court of Appeal referred to deception concerning "wealth" because the appellant had submitted that a person who lied about his or her wealth and thereby induced someone to have sex, who otherwise would not have done, could not vitiate consent. In applying Lord Judge CJ's approach, it is clear that the Court was holding that the deception did not relate to the nature or purpose of the act (in the sense in which that phrase was understood at common law or for the purposes of section 76(2)(a) of the 2003 Act), but did relate to the sexual nature of this activity. To the extent, therefore, that the common law was being extended (rather than section 74 being interpreted), that extension was modest."
CD so common law was crystallised in s76 and this issue with s74 was not resolved in Monica.
[she takes us to par 80 of Monica]
"An appeal to "broad common sense" in the application of any law does not relieve a court from the obligation of identifying the boundaries within which a jury will be asked to bring to bear their 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. Furthermore, in terms of Ms Kaufmann's postulated twofold test, the objective element is nowhere to be discerned in the authorities and sits uneasily with notions of autonomy and freedom of choice, which are inherently subjective matters. Moreover, there is no decided case where the suggested subjective element is expressly set out."
J2 if we are draw a parallel or analogy with the attribute in Monica and the issue of GID.
CD we would say they are entirely separate considerations and we shouldn't draw a parallel between a man pretending to be an env protestor and someone who believes they are male or female.
CD if we took someone who had been through surgery as akin to pretending they were an env protestor – it goes to their desire, their sexual attraction being predated upon.
CD as SV might characterise as a deception in beliefs – in Monica – he shared her beliefs – in relation to GID it shouldn't be treated in the same way it's fundamental to themselves – it goes to who they are.
CD is there time to finish on Lawrence? It will almost take me to the end of these cases. files.justice.org.uk/wp-content/uploads/2020/09/06165908/Y-R-v-Lawrence-002.pdf
CD the facts of this are simple. Man said he'd had a vasectomy and he hadn't. Woman said she'd only agreed to sex with him if he had. This underlines the diffs. The disco about consent [in Lawrence] starts at par 19:
Sorry – this is the link:
www.bailii.org/ew/cases/EWCA/Crim/2020/971.html
Consent in Lawrance:
And the conclusion:
CD Lawrance's lie about being able to make her pregnant didn't vitiate consent.
J there are some things one could say about that…
CD joking aside
J not joking. There are things you could say about a case that come to that conclusion
CD judges have given a range of view
CD none of these cases have gone to the SC. It isn't clear why the test which is in s74 isn't linked to the wording in s76. There isn't a rationale which explains all these cases and the DPP is right not to exclude or state a position where no court has said whether GID is on
… one side of the line. But it's not for him to say. How could the DPP possibly say in his guidance – "no, GID, no. It's too unstable" as SV would have it. This is really complex when you get into the weeds of these cases and there may be some cases which put us on
… one side of the line or another. If you want me to finish on BBA…?
J save that for tomorrow.
[court rises]
[there's some now to-ing and fro-ing between the barristers which I am trying to earwig]
[I couldn't hear them. And now I can't understand them]
Okay that's it for the day. Thanks for following this thread. If you can afford it and think this excitement is worth a fiver, or better, a monthly fiver. Please click here for more info:
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I think this tweet thread contains all the links you might ever need in relation to the case law on consent in sex.
I'll be back tomorrow for more punishment (it's like a bad sauna in here). I'm now off to find some aircon in order to write up a blog post which subscribers will get first.
Thanks for reading!
Oh and I'll post up some documents and draw the arguments from there as well as the live tweets so there's a chance of being coherent and orderly with the arguments.
