Under the Covers: Covert Policing and Intimate Relationships

McCartney, Carole and Wortley, Natalie (2018) Under the Covers: Covert Policing and Intimate Relationships. Criminal Law Review, 2. pp. 137-156. ISSN 0011-135X

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Abstract

The operations of undercover police in England and Wales during the 1980s and 1990s in particular, are now subject to an official inquiry. Reports of police officers committing crimes and taking on the identities of dead children have been controversial, but so too the engagement of officers in intimate (sexual) relations while undercover. This raises difficult moral and ethical questions, but we argue, also questions of the legality of such behaviour. In spite of the inclusion of a definition of ‘consent’ in the Sexual Offences Act 2003, the courts in England and Wales are still regularly required to deal with questions of interpretation, as might be expected when there are diverse social understandings of the parameters of ‘acceptable’ sexual conduct. In this paper, we look at a possible legal approach to sexual relationships that police officers have embarked on while undercover. Could sexual intercourse while undercover be considered rape? In order to answer this question, we examine the 2003 Act and the preceding 1956 Sexual Offences Act, which was in force during much of the time of the undercover relationships that are now under scrutiny. We consider recent interpretations of the legal definition of consent and deliberate on whether undercover officers could be liable for rape, on the basis that the consent of their partners was vitiated by their deceit. We conclude that developments surrounding consent and deception make it possible to charge undercover officers with sexual offences.

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