University of London LLB (Hons) Jurisprudence 2024-25 Examination

There is a ‘set case’ component to the Jurisprudence examination with the case changing each year. For 2024-25, University of London LLB (Hons) Jurisprudence students are required to study the case of R (Monica) v DPP (DC) [2019] QB 1019 [2018] EWHC 3508.

Facts

R (Monica) v DPP QB 1019 is a judicial review of a decision by the Director of Public Prosecutions (DPP) not to prosecute a former police officer for rape, indecent assault, procurement of sexual intercourse, and misconduct in public office. The case arose from a situation where the claimant, Monica, an environmental activist, had a sexual relationship with an undercover police officer, Andrew Boyling, who had infiltrated her protest movement. Monica was unaware of Boyling's true identity during their relationship.

The CPS

The Crown Prosecution Service (CPS) decided not to prosecute Boyling, concluding that the deception underlying the relationship was not such as to vitiate consent for the purposes of the offense of rape. They also found that there was not a realistic prospect of conviction for procurement of sexual intercourse by false pretenses or false representations, or for misconduct in public office.

Judicial Review

The claimant sought judicial review, challenging the lawfulness of the decision not to prosecute, arguing that the CPS had applied the wrong test on the issue of consent. She argued that the deception was central to her decision to enter a sexual relationship with Boyling, and that it negated her consent, and that the CPS had not given enough consideration to the impact of the deception on her.

Held

The court's analysis focused on the legal definition of consent in the context of rape and whether deception can negate consent. The court reviewed relevant case law, including cases that occurred before the Sexual Offences Act 2003, and also cases that were decided after the Act came into force. The court considered the following issues:

• Whether the deception was closely connected with the sexual act.

• Whether the deception was fundamental and therefore equivalent to impersonation.

• Whether the complainant was deprived of her freedom to choose whether to engage in sex.

• Whether the complainant agreed to the sexual act by choice, when she had the freedom and capacity to make that choice.

The court ultimately dismissed the claim for judicial review, concluding that:

• The concept of deception vitiating consent for the purposes of rape does not apply to deceptions not closely connected with the performance of the sexual act, or intrinsically so fundamental as to be treated as cases of impersonation.

• The CPS correctly concluded that the deception in this case did not vitiate consent.

• Any fundamental change in the understanding of consent, which would inevitably result in the criminalisation of much conduct which had hitherto fallen outside the embrace of the criminal law, was a matter for the legislature.

• The factual situation in the case did not amount to the offense of procurement.

• The CPS had been entitled to conclude that the actus reus of the offense would not be established and that there were considerable difficulties in proving mens rea.

• The decision not to prosecute the police officer involved no error of law.

The court also discussed the concept of consent, noting the following:

• The definition of consent in section 74 of the Sexual Offences Act 2003, and subsequent case law, is relevant in determining whether the officer's conduct amounted to an offense under the 1956 Act.

• The definition of consent under the common law is accurately stated by the effect of section 74.

• The concept of free agreement, or the freedom to choose, is very much part of the ordinary meaning of the term.

• The 2003 Act did not change the meaning of consent.

In their analysis of the case, the court made reference to other cases including R (F) v Director of Public Prosecutions QB 581 and R v McNally QB 593. They also discussed R v Olugboja QB 320, R v Elbekkay CrimLR 163, and R v Linekar QB 250, among others.

The court was also concerned with the narrow scope of judicial review of prosecutorial decisions and recognised that the courts should be slow to interfere with the decisions of an independent prosecutor.

Using Dworkin’s theory

The starting point for your preparation should be chapter 9 of the module guide and Dworkin’s arguments regarding what judges do in hard cases, especially his critique of Hart’s positivism and his analysis of principles, policies and rules. Some of the questions on which to focus are the following: how can principles determine judicial decisions? How are principles grounded in law? How ought they to be grounded? Is the decision taking into account policies or principles? How do Dworkin’s theories of equality and concepts of ‘fit’ ‘integrity’ ‘discretion’ ‘one right answer’ relate to the judgment, if at all? Does the court exercise moral discretion or is the Set Case properly premised in pre-existing law? What would Dworkin’s Hercules do in this case?

Introduction

The R (Monica) v DPP case can be analysed through the lens of Ronald Dworkin's legal theory, particularly his ideas about how judges decide hard cases, his critique of legal positivism, and his concepts of principles, policies, fit, integrity, discretion, and the one right answer.

Dworkin's Critique of Hart's Positivism and the Role of Principles

• Hard Cases: Dworkin argues that in hard cases, where existing rules do not provide a clear answer, judges do not exercise discretion in the way that legal positivists like Hart suggest. Instead, they must look to legal principles, which are moral propositions that underlie and justify legal rules. In R (Monica) v DPP, the court acknowledged the difficult and evolving nature of consent, as it is applied in law, and had to determine whether the facts of the case fell within the existing legal boundaries, especially those related to cases of deception that can vitiate consent.

• Rejection of the Rule of Recognition: Dworkin critiques Hart's concept of the rule of recognition, arguing that it fails to account for how judges use principles in legal reasoning. He argues that the rule of recognition is based on social facts and cannot account for the moral dimensions of legal arguments. Dworkin would likely argue that the court in R (Monica) v DPP should not only consider the existing legal rules and precedents, but also the underlying moral principles relating to autonomy and consent.

• Principles vs. Rules: Dworkin distinguishes between legal rules, which apply in an all-or-nothing fashion, and principles, which provide reasons for or against a particular decision. He notes that principles have a dimension of weight or importance that rules lack. In the R (Monica) v DPP case, the court focused on the rules of law related to consent and deception, applying them to the facts of the case to determine if there was a violation of the law, rather than considering underlying principles that might have favored the claimant. Dworkin would argue that the court should have engaged with principles of fairness, autonomy and the right to make informed decisions to determine the outcome.

The Application of Principles in Judicial Decisions

• Grounding of Principles: Dworkin believes that legal principles are grounded in the best moral and political theory that can justify the existing legal system. The correct legal principle is the one that makes the law the best it can be morally. In R (Monica) v DPP, the court did not explicitly seek to make the law the best it can be morally but focused more on the existing legal rules relating to the concept of consent. Dworkin would argue that principles of respect for individual autonomy and freedom should be considered in cases concerning consent and sexual activity.

• Arguments of Principle vs. Policy: Dworkin argues that judges should base their decisions on arguments of principle, which concern individual rights, rather than arguments of policy, which focus on community goals. He would say that the court in R (Monica) v DPP should focus on the claimant's rights and whether they were violated, not on potential policy implications of prosecuting or not prosecuting the police officer. The court's focus on whether a jury would be likely to convict based on the available evidence relates to the possible policy impact of the court's decision, which is an approach Dworkin would criticize.

• Fit and Substance: Dworkin suggests that judicial decisions should be based on two dimensions: fit and substance. Fit requires the decision to be consistent with existing legal precedents, while substance requires the decision to be grounded in a sound theory of political morality. In R (Monica) v DPP, the court emphasized the need for its decision to fit within the existing narrow legal precedents that define when deception vitiates consent. Dworkin would suggest that the court should have considered whether these precedents fit within a more robust theory of justice and morality.

Integrity, Discretion, and the One Right Answer

• Integrity: Dworkin views integrity as a key virtue of law, requiring that the law should be interpreted as a coherent whole based on consistent moral principles. In R (Monica) v DPP, it could be argued that the court’s approach failed to make the law as coherent as possible, because it prioritized existing legal boundaries over what would be a just result, given the facts of the case. Dworkin’s notion of integrity requires judges to interpret the law in a way that best reflects the community's commitment to fairness and equality.

• Judicial Discretion: Dworkin rejects the idea that judges have discretion in the strong sense that Hart and other positivists propose. For Dworkin, judges are always constrained by the need to interpret the law in a way that is consistent with its underlying principles and best moral justification. In the R (Monica) v DPP case, Dworkin would argue that the court had a duty to interpret the law based on moral principles of respect and autonomy and that the judges did not have the discretion to decide the case based on their subjective views.

• One Right Answer: Dworkin argues that there is often a right answer to legal questions, even in hard cases, which can be determined through a rigorous analysis of legal principles and political morality. He would say that although there is no single "correct" rule of law that applies to the facts of R (Monica) v DPP, there is, nevertheless, one interpretation of the law that provides the best and most just resolution.

Moral Discretion and Pre-Existing Law

• Moral Considerations: Dworkin believes that moral considerations are essential to legal reasoning, and that judges cannot make decisions without considering the moral dimensions of a case. He argues that the law is inherently interpretive, and that judges must make moral judgments when they interpret legal texts and precedents. In R (Monica) v DPP, the court’s decision was based on a narrow interpretation of the rules of consent, but Dworkin would argue that the court should have recognized that morality has a role to play in legal reasoning.

• Pre-existing Law: Dworkin does not believe that judges should apply a rule of law if it violates the community’s commitment to fairness and justice. He does not think of law as a set of rules, but as a set of principles that are morally grounded and should be interpreted in a way that achieves justice. He would likely argue that even if the court in R (Monica) v DPP thought it was applying pre-existing law, it should have re-examined the basis of that law and the principles on which it is founded, in order to arrive at a just outcome.

What Would Hercules Do?

• Ideal Judge: Dworkin's ideal judge, Hercules, would approach R (Monica) v DPP by identifying the relevant legal principles and constructing the best possible theory that fits with the existing legal system and promotes justice and fairness.

• Reasoning: Hercules would consider the claimant’s argument that her consent was not freely given, and he would seek to interpret the concept of consent in a way that protects individual autonomy and aligns with the best interpretation of moral principles.

• Outcome: Hercules might find that the existing law concerning consent, specifically in relation to deception, does not sufficiently protect individual rights, and might rule in favor of the claimant, because his aim would be to put the law in its best light. In other words, he would seek to create a ‘fit’ between the law and principles of justice.

Conclusion

In conclusion, Dworkin’s theory would critique the approach of the court in R (Monica) v DPP for what Dworkin would consider an overreliance on a positivist notion of law and an under-appreciation of moral principles that should govern legal reasoning. He would likely argue that the court should have taken a more interpretive approach, focusing on the principles of autonomy, integrity, and the right to make informed choices in matters of sexual consent. Dworkin's Hercules would strive to create a coherent and just outcome, rather than simply applying existing rules in a narrow and technical sense.

Using Liberalism and law

Your preparation should be based on chapter 10 of the module guide. Some of the questions you should concentrate on include: how does the Set Case relate to justice theories? Does it tell us anything about the relationship between law and morality? How do notions of autonomy and rights relate to the parties’ arguments and how are they addressed? What does the Set Case tell us about individual freedom of choice and consent, privacy and belonging in contemporary society?

Introduction

The case of R (Monica) v DPP QB 1019 can be analysed through the lens of various justice theories discussed in Chapter 10 of the module guide, particularly concerning the relationship between law and morality, autonomy, rights, individual freedom of choice, consent, privacy, and belonging.

Relationship to Justice Theories

• Utilitarianism: Utilitarianism, a consequentialist theory, focuses on maximizing happiness or welfare. A utilitarian perspective on the R (Monica) v DPP case might consider the overall societal impact of prosecuting or not prosecuting the police officer. If prosecuting the officer deters future misconduct and enhances public trust, a utilitarian might support prosecution. Conversely, if prosecution leads to a chilling effect on legitimate police operations, a utilitarian might argue against it. Utilitarianism emphasizes the principle that "each man to count as one, no one to count for more than one," which is a way of combining individual liberty with equality. This concept is challenged by the facts of the case, which demonstrate that the police officer was not being considered as just one individual among many, but as a state agent with special responsibilities.

• Liberalism: Liberalism emphasizes individual rights and freedoms, including the freedom to choose one's sexual partners. From a liberal perspective, the deception in the R (Monica) v DPP case might be seen as a violation of the claimant's autonomy and freedom of choice. The claimant’s argument rests on the idea that her consent was not freely given because it was based on a false understanding of the police officer's identity and intentions.

• Natural Law: Natural law theory posits that laws should align with moral principles. In this case, a natural law approach would consider whether the officer's actions were morally justifiable, regardless of their legality. The natural law perspective would analyze the relationship between positive law and morality in the context of deception and consent, potentially finding that, based on moral principles, the police officer’s actions were wrong, even if not legally so. Natural law could be interpreted in different ways, with some emphasizing the importance of upholding existing law, and others emphasizing individual rights and moral autonomy.

• Rawls's Theory of Justice: Rawls's theory of justice emphasizes fairness and the protection of the least advantaged. Applying Rawls's ideas, the court would consider whether the decision not to prosecute the police officer disadvantages the claimant and others in similar situations. It would emphasize the need for equal treatment under the law and might argue that the deception created an inequality. Rawls's theory is considered a liberal theory of justice, aiming to ensure a state enshrines already existing natural rights.

Relationship between Law and Morality

• Positivist vs. Natural Law: The case highlights the tension between legal positivism, which separates law from morality, and natural law, which connects them. The court's decision reflects a positivist approach, primarily focusing on legal precedent and the existing legal framework, while the claimant's arguments draw on notions of morality and individual autonomy.

• Hart-Fuller Debate: The case also reflects the debate between Hart and Fuller. Hart, a legal positivist, emphasizes that a law's validity is distinct from its moral content. Fuller, on the other hand, argues that law has an "inner morality" which includes principles of justice and fairness. The court’s focus on whether the case falls within the existing narrow categories of deception that can vitiate consent may be seen as a more positivist approach, while the claimant’s appeal to concepts of broader freedom of choice may be interpreted as appealing to the Fuller perspective.

Autonomy and Rights

• Individual Autonomy: The case centres on the concept of sexual autonomy. The claimant argued that her autonomy was violated because she did not freely choose to engage in a sexual relationship with the police officer, because his deception deprived her of the ability to make an informed decision. The court, however, focused on whether her consent was vitiated under the narrow definitions set out in prior case law, not whether her autonomy was generally violated.

• Rights: The claimant’s case emphasized the importance of individual rights, particularly the right to bodily integrity and sexual autonomy. The court did not find that her rights were violated in the legal sense, because the case did not fall within the established legal precedents concerning deception and consent.

Individual Freedom of Choice and Consent

• Informed Consent: The case highlights the importance of informed consent. The claimant argued that her consent was not genuine because it was based on a false understanding of the officer's identity, profession, and intentions. She believed she had consented to a relationship with an activist, not an undercover police officer.

• Limits of Consent: The court’s decision underscores the legal limits of what constitutes a lack of consent. While the court acknowledged the deception, it found that this case did not fall within the established categories where deception vitiates consent for the purposes of rape under the Sexual Offenses Act 1956. According to the court, there is a "consistent line of authority" stating that "only two frauds are capable of vitiating consent". The court also stated that a "broad, common sense" understanding is to be used in interpreting consent, but that this "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".

• Evolution of Consent: While the court ultimately found that the law did not support the claimant, the court did acknowledge that the understanding of consent in law has evolved over time, and that there might be an argument that the Sexual Offences Act 2003 had widened the scope of what may be construed as rape, even if there is no specific case that confirms this.

Privacy and Belonging

• Privacy: The police officer's actions can be seen as an invasion of the claimant's privacy, as he was gathering information about her and her group under false pretenses. This is a type of invasion of privacy not usually considered in jurisprudence, as it is not the typical case of gathering personal data, or information related to a person's private life.

• Belonging: The claimant's sense of belonging within her activist group was undermined by the police officer's deception, as his true identity and purpose were in direct conflict with the group’s aims and values. The claimant was made to believe that she shared common values with the police officer, and this sense of shared belonging was ultimately undermined by the deception.

Conclusion

The R (Monica) v DPP case offers a complex look at the relationship between law, morality, and individual rights. It raises questions about the nature of consent, the limits of legal positivism, and the ways in which the legal system balances individual freedoms with state interests. The case also illustrates the ongoing debate regarding the role of natural law in modern legal systems and whether morality should be a more central concern in interpreting law. Ultimately, the case underscores the difficulty of applying established legal principles to new factual situations, and the importance of continued critical analysis of legal theory to ensure the law reflects the values of justice and equality. The case suggests that the law is not always in sync with a contemporary understanding of moral values, and that legal interpretation may sometimes lag behind social progress.

Using Feminist Legal Theories

Chapter 12 in your module guide should be your starting point for this question. Some possible questions to consider in this context include: in what ways would feminist legal theorists analyse the Set Case? How does it relate to the lives of women and girls? Does the Set Case enhance or diminish women’s rights or the protection of women’s needs? How would feminist legal theorists analyse the different rights at stake in the Set Case?

Introduction

Feminist legal theory (FLT) provides a critical lens through which to analyse the R (Monica) v DPP case, focusing on how the law interacts with gender, power, and the lived experiences of women. FLT challenges the traditional legal framework, revealing potential biases and inequalities. Here's how feminist legal theorists might analyse the R (Monica) v DPP case, addressing the questions raised:

Feminist Analysis of the Set Case

• Challenging Law's Neutrality: Feminist legal theorists would question the law’s claim to neutrality, arguing that legal systems and their interpretation often reflect a male perspective. The court's focus on established categories of deception that vitiate consent may be seen as an example of how a seemingly neutral application of law can fail to address women's experiences of violations.

• Power Dynamics: FLT emphasizes how power operates in social and legal contexts, particularly the power imbalances between men and women. The case involves a power imbalance between a police officer and an environmental activist, but the court does not analyse this imbalance from a feminist perspective. Instead, the focus is on the legal rules of consent and whether they are met.

• Lived Experiences of Women: Feminist scholars stress the importance of centring women's lived experiences in legal analysis. The court's approach in R (Monica) v DPP appears to focus on legal precedent, possibly overlooking the claimant’s subjective experience of having her autonomy and consent violated through deception. A feminist perspective would prioritize the woman's experience of the situation and how she understood her choices.

• Critique of "Male Standards": Radical feminists, like Catharine MacKinnon, argue that standards of equality are based on male norms. The court's assessment of consent could be seen as relying on a male standard, since it emphasizes the physical act of sex while neglecting the context, power dynamic, and emotional and psychological impact of the deception, which are often more significant for women.

• Intersectionality: Black feminists or critical race feminists would highlight how race, class, and other social categories intersect with gender to shape women's experiences of oppression. They would argue that the experience of a white, middle-class woman cannot be generalized to all women. The case of R (Monica) v DPP could be examined through an intersectional lens, taking into account the specific identity and social location of the claimant, as a white environmental activist, and considering how those factors influenced her experience.

• Deconstructing Legal Concepts: Postmodern feminists might use deconstruction to show that laws and legal concepts are not fixed and are created by people with biases. The concept of "consent" is a socially constructed idea, and what may constitute consent could be interpreted differently by different people. A postmodern analysis might question whether the law’s approach to consent adequately reflects the nuances of human interactions, or if it reinforces unequal power structures.

• Importance of the "Woman Question": Feminist legal methods encourage asking "the woman question" to identify how laws and legal practices affect women differently than men. In R (Monica) v DPP, the court does not specifically address the "woman question," and may not have fully considered the ways in which the case might have a different meaning for women. FLT would ask how a woman's understanding of her autonomy and sexual consent might differ from a man's.

The Case's Impact on Women's Rights and Needs

• Diminished Protection: From a feminist perspective, the ruling in R (Monica) v DPP could be viewed as diminishing the protection of women's rights by upholding a narrow view of consent that does not account for the power dynamics involved in the situation. The court’s decision could be seen as failing to adequately address the harm that women may experience from such a significant breach of trust, and is therefore not protecting women's needs.

• Reinforcing Stereotypes: The court's approach may reinforce harmful stereotypes about what constitutes "genuine" consent. By focusing on whether the claimant consented to the physical act of sex, rather than focusing on her knowledge of the circumstances, the court may be implicitly suggesting that women’s consent is merely a passive acceptance of a physical act rather than a meaningful choice that requires full awareness of the circumstances.

• Affirmative Action: Some feminists might argue for affirmative action to address gender inequality, suggesting that a legal system that fully accounts for women’s needs would interpret consent more broadly. A feminist legal approach would seek to create a legal framework that better protects women's autonomy and addresses the power dynamics inherent in many sexual relationships.

• Transformative Potential: FLT often aims to bring about change to improve women's lives. By exposing the implicit biases within the legal system, this case could be an opportunity to reimagine the law’s approach to sexual consent. FLT’s goal is to transform legal systems to better protect and empower women.

Analysis of Rights at Stake

• Autonomy: FLT emphasizes women's self-determination and freedom as central values. The claimant's right to sexual autonomy was undermined by the police officer's deception, and FLT would argue that the court's focus should be on protecting her ability to make informed choices about her body and relationships.

• Equality: Liberal feminists would argue that women should be treated equally under the law, and that the police officer's actions violated the claimant's right to equal treatment. FLT recognizes that formal equality may not always address the real power imbalances women face.

• Safety and Security: FLT prioritizes women's safety and security, and argues that legal systems should protect women from harm. The claimant's vulnerability as an environmental activist being targeted by an undercover police officer raises concerns about her security, which FLT would emphasize should be protected by the legal system.

• Integrity and Trust: The case highlights the importance of trust in interpersonal relationships, and how that might be particularly important for women. FLT would argue that the court should consider the ways in which the police officer's deception violated the claimant’s trust and recognize that this can have a disproportionate impact on women.

Conclusion

Feminist legal theory offers a valuable critique of the R (Monica) v DPP case, highlighting how the legal system’s reliance on existing rules and precedents may fail to fully address the complexities of women's experiences. By centring women's perspectives and prioritizing issues of power, autonomy, and equality, FLT would likely advocate for a more nuanced and transformative approach to sexual consent and legal justice.