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Thursday, 21 August 2014

CPS statement: Charging decision concerning MPS Special Demonstration Squad

The Crown Prosecution Service (CPS) has issued the following statement following the decision not to charge members of the Met's Special Demonstration Squad:

"The CPS received a file in relation to a number of police officers under Operation Aubusson, a subset of Operation Herne, which is an investigation into the activities of the Metropolitan Police Service’s Special Demonstration Squad. The evidence in this case relates to alleged sexual misconduct. In reviewing the case we have considered whether there is sufficient evidence to allow charges of rape, indecent assault, procuring a woman to have sexual intercourse by false pretences, misconduct in public office and breaches of the Official Secrets Act.

Having carefully considered all the available evidence, provided at the end of a thorough investigation, we have determined that there is insufficient evidence for a realistic prospect of conviction for any offences against any of the officers. Investigators from Operation Aubusson have confirmed that no further lines of enquiry are available at this time.

The suggestion has been made publicly that officers, while allegedly acting undercover, may have committed sexual offences in relation to personal relationships they formed during their deployment. There was only one complaint of criminal activity against one of the officers, but a number of other officers were considered as a result of allegations made publicly which investigators had become aware of.

It is not possible to go into the facts of this case in detail, but we consider that an explanation of our decision making should be given as far as is possible:

In order to prove the offence of rape the prosecution must show that the complainant did not consent to sexual intercourse. In this case the Sexual Offences Act 1956 and the case law interpreting that Act is applicable, the effect of which is that consent can be negated if there has been a deception as to the nature of the act (for example where consent was induced by the pretence that the act of intercourse was for medical treatment) or where there has been deception as to the identity of the suspect. The identity of the suspect is relevant to a very limited extent. Section 1(3) of the Act expressly provides that impersonating a woman's husband may vitiate (negate) consent. This section was later extended by case law to include the impersonation of a person's partner. The law does not go further and allow the fact that a person does not reveal their true or full identity to be capable of vitiating consent where it is otherwise freely given.

The 1956 Act does not define "consent", and so the word needs to be given its ordinary meaning in cases falling under that Act. The 1956 Act was replaced by the Sexual Offences Act 2003, which does provide a definition of consent in section 74. Although the 2003 Act is not applicable in this case as it post-dates the allegations, the principles set out in section 74 of that Act, which relate to freedom and capacity to make a choice, provide helpful guidance as to the ordinary meaning of "consent" and to that extent were relevant to this case.

Case law which demonstrates the law on consent as set out in the 2003 Act includes:
  • R - v - Assange, where the court concluded that if consent was conditional on the use of the condom during intercourse, and the condition was deliberately disregarded, that was capable of amounting to rape.
  • R(F) - v - the DPP, where the claimant said that she had consented to sexual intercourse only on the clear understanding that her partner would withdraw before ejaculation, and there was evidence that the condition was deliberately ignored. The court held that those facts were capable of amounting to rape on the basis that she had been deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based. The court commented that "the evidence relating to choice and the freedom to make any particular choice must be approached in a broad common sense way".
  • R - v - McNally, where consent was negated on the basis that the victim believed she was having sex with a male partner, where in fact she was having sex with a female who had deceived her. In this case the Court of Appeal said that "depending on the circumstances, deception as to gender can vitiate consent" but added: "in reality, some deceptions (such as, for example, in relation to wealth) will obviously not be sufficient to vitiate consent."

We have concluded, after careful consideration of the evidence in accordance with the principles set out above, that any deceptions in the circumstances of this case were not such as to vitiate consent and that consequently there is insufficient evidence to prosecute for rape.

In order to prosecute the offence of indecent assault, the same test would need to be satisfied in terms of consent, and the CPS has determined there was insufficient evidence for a realistic prospect of conviction on this basis.

In order to prosecute for procurement of a woman for sexual intercourse by false pretences, the prosecution would need to show that any deception was carried out as a specific inducement to sexual intercourse, which took place as a direct result of such inducement. There was insufficient evidence to prove this.

In order to prosecute misconduct in public office, the prosecution would have to show that an officer knowingly abused their position in order to bring a sexual relationship about, as opposed to having engaged in a sexual relationship whilst holding the position in question. There was insufficient evidence to show this.

In order to prosecute a breach of the Official Secrets Act the prosecution would have to prove that the suspect in question disclosed information that would, or would be likely to, damage the work of the security and intelligence services; or that the disclosure would impede the prevention of offences or the apprehension or prosecution of suspected offenders. We determined that neither could be proved.

Any decision by the CPS does not imply any finding concerning guilt or criminal conduct; the CPS makes decisions only according to the test set out in the Code for Crown Prosecutors and it is applied in all decisions on whether or not to prosecute. Our role is not an exercise in moral judgment nor is it intended to condone or condemn any behaviour by any individual, rather it is an impartial application of the criminal law to the circumstances of this case."