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A DECISION not to prosecute an undercover copper who deceived a woman into a long-term intimate relationship should be overturned, the High Court heard today.
The woman, known only as Monica, claims former detective Jim Boyling should be prosecuted for rape and misconduct in public office over an “intense” six-month relationship he had with her using the name Jim Sutton.
As an officer in the Metropolitan Police’s Special Demonstration Squad (SDS), Mr Boyling infiltrated environmental group Reclaim The Streets in the 1990s, when he is alleged to have had sexual relationships with three women.
Prosecutors decided not to charge Mr Boyling with sexual offences, as they considered deception as to identity could not “vitiate” consent, or with misconduct in public office, as they concluded the relationship was “genuine.”
But, at a hearing in London, Monica’s barrister Phillippa Kaufmann QC said the Director of Public Prosecutions (DPP) decision not to prosecute Mr Boyling should be reconsidered.
She said the “critical question” as to whether deception “vitiated” consent was “whether the woman agreed to the sexual act by choice when she had the freedom and capacity to make that choice.”
Ms Kaufmann added: “(Mr Boyling’s) deception was one sponsored by the state that went to every aspect of his identity apart from his body.
“Both his past and present was entirely fabricated, carefully crafted to ensure that his true identity would not be revealed to those in the groups and movements he infiltrated.”
She said that resulted in a “fictitious identity with a detailed history” and left Monica being “robbed of her freedom to choose by the adoption of a wholly fictitious identity.”
She added: “This case forces the courts to confront what changes the huge advances in women’s emancipation in the course of the 20th century has wrought upon the law of rape and, in particular, how the law conceives of consent.”
The DPP contends that Mr Boyling’s relationship was “genuine” and that his undercover identity was “entirely incidental” to the establishment of his sexual relationship with Monica.
Mr Boyling, who is represented at the hearing, submits that the Sexual Offences Act 2003 which introduced a statutory definition of consent for the first time, cannot apply as his relationship with Monica occurred before it became law.
Lord Chief Justice Lord Burnett and Mr Justice Jay will hear submissions over two days and are expected to reserve their judgment.
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