R (on the application of Sex Matters) v Director of Public Prosecutions [2026] EWHC 2449 (Admin)

In brief

The Divisional Court dismissed the charity Sex Matters' judicial review of the Director of Public Prosecutions' Deception as to Sex guidance for specialist rape and serious sexual offences prosecutors. Sex Matters argued (Ground 1) that a deception as to gender identity, as distinct from a deception as to sex, can never vitiate consent under section 74 of the Sexual Offences Act 2003, so the guidance was wrong in law; and (Ground 2) that the guidance gave a misleading picture of the law under category (iii) of R (A) v Secretary of State for the Home Department [2021] UKSC 37 [3]. The claim failed: both grounds were rejected [142], [153] and the court said "Accordingly, we will dismiss the claim." [159]. The holding is deliberately narrow: the court would not accept that a deception as to gender identity is incapable of vitiating consent "whatever the circumstances", said "our decision goes no further than that", and did not decide that such a deception will negate consent, which turns on the facts of each case [156]. The appellate authorities on section 74 are hard to reconcile and highly fact-sensitive [124]-[125]; it would be "dangerous and undesirable" both for the DPP to take too prescriptive an approach in guidance and for the court to give a hard-edged in-principle ruling that such deceptions are incapable of vitiating consent in any circumstances [128]; a vitiating deception is not confined to the physical performance of the act [129]. The court accepted that the guidance does not treat sex and gender identity as legally equivalent [138]. It distinguished For Women Scotland: the Supreme Court "was addressing specific issues of statutory construction under the Equality Act 2010, not the impact of section 74 SOA upon ostensible consent" [134]. It criticised the guidance's background section on the experiences of trans and non-binary people as surprising in tone for prosecutorial guidance, while holding it did not misstate the law [149]-[151]. Sex Matters would have had standing had a ground succeeded [155], [161]. The court expressed no view on the wider debate about sex and gender identity [6].

Key provisions

• §156, §159 — Disposal and the narrow scope of the holding : [156] "we do not accept that a suspect’s deception as to their gender identity is incapable of vitiating consent to sexual activity for the purposes of section 74 SOA whatever the circumstances"; "our decision goes no further than that"; whether a particular deception negates consent falls to be decided on the circumstances and evidence of the case in question. [159] "Accordingly, we will dismiss the claim."
• §124–128 — Section 74 deception law is unsettled and fact-sensitive : [124] no appellate case has yet considered a deception as to gender identity under section 74, and the appellate authorities are difficult to reconcile; [125] "The law is still developing in this area."; [127] the Law Commission described the law as "unsettled, incoherent, and unpredictable" and the area "would benefit considerably from consideration by the Supreme Court in an appropriate case"; [128] it would be "dangerous and undesirable" for the DPP to take too prescriptive an approach in guidance, and equally for the court to give a hard-edged in-principle ruling that deceptions as to gender identity are incapable of vitiating consent in any circumstances.
• §134 — A For Women Scotland observation (FWS para 204) did not assist: the Supreme Court was construing the Equality Act 2010 : [134] the claimant relied on para 204 of For Women Scotland; the court held "The Supreme Court was addressing specific issues of statutory construction under the Equality Act 2010, not the impact of section 74 SOA upon ostensible consent".
• §138 — The guidance does not treat sex and gender identity as legally equivalent : [136] that questions of deception and consent may be more complex where the suspect is trans or non-binary is a statement of fact, not law; [138] "the guidance does not suggest that the two scenarios are legally identical or that the same decision as to whether to prosecute should follow in both instances."
• §144, §150 — R (A) category (iii) applied to guidance staff must follow : [144] the R (A) category (iii) test applies to the DPP's guidance because it identifies the principles and test prosecutors are to apply and they are under a duty to follow it; [150] the question is "whether the document contains a misstatement of the law or, read as a whole, it presents a misleading picture of the true legal position".
• §149–151 — Background material on trans and non-binary experiences: tone criticised, not unlawful : [149] the court found the guidance's section on the experiences of trans and non-binary persons surprising in prosecutorial guidance, said "The document is not intended to be an equalities policy or a social commentary on difficulties that may be faced by trans or non-binary persons.", and that the DPP may wish to reconsider it, but held that this "does not, in our judgment, render the Deception Guidance unlawful"; [151] the section is background, not cross-referenced in the legal tests.

When relevant

Criminal law, not equality law: who it governs is anyone whose conduct falls to be assessed under section 74 of the Sexual Offences Act 2003, and the Crown Prosecutors who apply the DPP's guidance. It does not decide any Equality Act 2010 question and creates no duty for employers or service providers. Relevant when (i) someone reads For Women Scotland as settling questions outside the Equality Act 2010 [134]; (ii) a safeguarding, conduct or HR process meets an allegation that a person deceived another about their sex or gender identity, where the honest position is that criminal liability is fact-specific and unsettled [124]-[128], [156] (our analysis, not the court's: an organisation's own process should avoid prejudging it; the judgment says nothing about safeguarding, conduct or HR processes); (iii) drafting guidance that addresses sex and gender identity side by side [138], or testing whether a body's guidance gives a misleading picture of the law [144], [150]. Coverage gap named: the toolkit holds neither the Sexual Offences Act 2003 nor the section 74 case law (McNally, Lawrance, BVA) nor R (A) [2021] UKSC 37 as catalogue records; verify on cite. Decision support, not legal advice.