Over the course of a number of posts I would like to consider some issues arising from the much-publicised incidents of male undercover police officers who, while conducting covert operations, entered into sexual relationships with members of the groups which were the targets of those operations. In this first post, I am particularly interested in the question of whether the women with whom the officers entered into those relationships gave or could give legally recognisable consent to sexual activity. This is a narrowly defined question but it has implications for whether the sexual activity in question might constitute a criminal offence, specifically rape. In a future post or posts, I will think about (i) whether, even if the elements of the offence of rape are made out, there may be defences available to an undercover officer; (ii) the question of whether there might or should be prosecutions of undercover officers in such situations, and (iii) the potential criminal liability of those who do or do not authorise these activities.
I've chunked the post into four pages, which you can jump around as you wish. There are buttons at the bottom of each page and links here:
- This page sets out the specific conclusions I reach in relation to consent, and gives some background information
- Page 2 refers to the general rules regarding consent for the purposes of rape and considers their application in the context of undercover officers entering into sexual relationships
- Page 3 does the same with regard to the specific rules regarding the relationship between identity and consent for the purposes of rape
- Page 4 reiterates the narrow scope of the post and identifies a number of issues which have not been considered, but which are relevant for future posts
Given the length of the post, I’m flagging my conclusions on the issue of the effect of the undercover status on consent for the purposes of the offence of rape here:
- It is possible, particularly in the light of recent developments in the caselaw, that the undercover status of the officer affects the free choice of the complainant such as to negative consent as partially defined in s. 74 of the Sexual Offences Act 2003.
- It is doubtful whether the undercover status of the officer changes the ‘nature’ of the act such as to (i) vitiate consent for the purposes of the common law (relevant to pre-2003 Act undercover behaviour) or (ii) trigger the conclusive presumptions regarding lack of consent and lack of belief in consent for the purposes of s. 76 of the 2003 Act.
- It is possible that the undercover status of the officer involves a deception as to the purpose of the act, which could trigger the conclusive presumptions under s. 76 of the 2003 Act. This would not apply, of course, to behaviour which took place prior to the coming into force of the 2003 Act.
- It is possible that the undercover status of the officer involves a deception as to identity which would vitiate consent at common law.
- It is questionable, given the statutory language, whether the undercover status of the officer involves an impersonation of a person known personally to the complainant, such as to trigger the conclusive presumptions under s. 76 of the 2003 Act.
Simon McKay has recently suggested that covert policing is under unprecedented scrutiny. One of the reasons for this is the exposure of the infiltration of protest groups by undercover officers: CPS concerns about police non-disclosure of information relating to undercover officer Mark Kennedy's conduct led to the collapse of the trial of a number of environmental activists in relation to a protest at a power station. The Court of Appeal later quashed the convictions of a number of other activists which had arisen from the same protest (R v Barkshire and others  EWCA Crim 1885). More specifically, there have been revelations that undercover officers entered into sexual relationships with female members of the target groups: it was alleged that Kennedy had had at least one intimate sexual relationship with an activist while undercover. Moreover, Kennedy’s conduct was not an isolated instance. The Home Affairs Committee, in gathering evidence for its interim report on undercover policing which was published earlier this year, heard from a number of women who had been in intimate relationships with undercover officers. Their evidence on the destructive effects of these relationships which were founded on deception makes for grim reading. I have posted about the interim report here.
In this context, it is important to note that the behaviours with which the Home Affairs Committee concerns itself appear both to pre-date and post-date the coming into force of the Sexual Offences Act 2003. I will consider the question of consent in relation to the pre- and post-Act law.