Sex Matters v DPP: Divisional Court dismisses challenge to CPS deception as to sex guidance

The Divisional Court has dismissed a judicial review brought by the charity Sex Matters against Crown Prosecution Service guidance on deception and consent in sexual offences. The court held that it cannot be said, on the current state of the law, that a deception as to gender identity is incapable of vitiating consent under section 74 of the Sexual Offences Act 2003.

In R (Sex Matters) v Director of Public Prosecutions [2026] EWHC 2449 (Admin), Dame Victoria Sharp P and Mrs Justice Heather Williams gave judgement on the "Deception as to Sex" section of the CPS rape and serious sexual offences legal guidance. The court stressed at the outset that it expressed no view on the wider and often polarised debate about sex and gender identity.

The challenge

Sex Matters advanced two grounds. First, it argued that the guidance was wrong in law because a deception as to gender identity, as distinct from sex, is not sufficiently closely connected to the nature, purpose or performance of the sexual act to vitiate consent, placing it within category (i) of the unlawful policies identified in R (A) v Secretary of State for the Home Department. Second, it argued that the guidance was so unclear, including through repeated use of the phrase "sex and/or gender identity", that it presented a misleading picture of the law under category (iii).

Argument focused on a revised draft of the guidance that the DPP intends to publish following the judgement, which already reflected several of the charity's concerns.

The state of the law

The court rejected the first ground. No appellate case has yet considered deception as to gender identity under section 74, and the existing authorities are difficult to reconcile. The court highlighted the tension between Assange, where deception about condom use could negate consent, and R v Lawrance, where a lie about fertility could not. It also questioned whether Jheeta is compatible with the "close connection" test in Monica and Lawrance. R v BVA, decided after the claim was issued, held that a vitiating deception is not limited to the physical performance of the act.

Noting academic criticism and the Law Commission's description of the law as "unsettled, incoherent, and unpredictable", the court said the area would benefit considerably from Supreme Court consideration. In those circumstances, it would be "dangerous and undesirable" for either the DPP or the court to lay down a bright-line rule.

The court drew on an unreported Crown Court case resolved by guilty plea, in which the complainant was led to believe the defendant had completed a transition including surgery. While not treating it as authority, the court considered it a useful illustration of how such a deception might negate consent. It found the claimant's contention that some of the convictions in that case were wrongly secured to be highly artificial.

The guidance, which the claimant accepted summarised the case law accurately, was measured in stating that the position for trans and non-binary suspects was arguably unresolved. It did not direct prosecutors towards any particular outcome.

Clarity and tone

The second ground also failed. The court accepted that category (iii) of R (A) applied, given that Crown Prosecutors must follow the guidance. However, it held that the guidance did not treat sex and gender identity as legally equivalent and, read as a whole, did not mislead.

The court was nonetheless critical of a section on the experiences of trans and non-binary people. It found this surprising in a document concerned with suspects of sexual offending, saw considerable force in the submission that its tone was unusually sympathetic, and suggested the DPP may wish to reconsider it. This did not, however, make the guidance unlawful.

Standing

Although unnecessary to decide, the court would have found that Sex Matters had standing. It pointed to the charity's genuine interest and expertise in matters of sex and gender, its detailed engagement with the consultation and pre-action process, and the absence of any better-placed challenger able to bring a claim of equivalent breadth.