R v C [2008] EWCA Crim 1155, [2008] All ER (D) 335 (May)
Lord Phillips CJ, Bean and Wilkie JJ
23 May 2008
The Court of Appeal has given guidance as to the application of the statutory definition in s 30 of the Sexual Offences Act 2003 (SOA 2003) of the circumstances in which a complainant will be unable to refuse to submit to sexual touching.
Richard Wormald (assigned by the Registrar of Criminal Appeals) for the defendant.
Johannah Cutts QC (instructed by the Crown Prosecution Service) for the prosecution.
The complainant was a 28-year-old woman. She had an established diagnosis of schizo-affective disorder, a borderline emotionally unstable personality disorder and an IQ under 75. Each disorder was a mental disorder for the purposes of the Mental Health Act 1983. She met the defendant and T, who were “doing crack”. She took drugs with them and engaged in sexual activity with them. They were charged with engaging in sexual activity with a person with a mental disorder impeding choice, contrary to SOA 2003, s 30(1).
At the end of the prosecution case, each defendant submitted that the jury should be directed to acquit him on the basis that the prosecution had not made out an arguable case that the offences had been committed. They contended that while there was evidence that the complainant’s capacity to choose had been impaired or flawed, there was no evidence that she had wholly lacked the capacity to choose in the sense that she lacked sufficient understanding of the nature of the act or its consequences. The judge was inclined to agree with that submission, as well as the submission that there was no evidence that the complainant had been unable to communicate such a choice.
However, he focused on the words in s 30(2)(a), namely, “or for any other reason”. The judge concluded that a jury would be entitled to convict on the ground that, because of her mental incapacity, she was unable to refuse due to an irrational fear. The defendant and T were convicted. The defendant appealed.
LORD PHILLIPS CJ (GIVING THE JUDGMENT OF THE COURT):
The judge’s ruling was capable of suggesting that an offence under s 30 would be committed if the complainant felt unable to refuse the sexual advances of the two defendants because of an irrational fear arising out of her mental disorder and the defendants knew or could reasonably be expected to know that this was the position. Such an approach would have been appropriate had SOA 2003, s 30(1) not been qualified by s 30(2). Section 30(2) provided, however, a comprehensive definition of the circumstances in which a complainant would be unable to refuse to submit to sexual touching. Those circumstances would exist if the complainant (B):
“…lacks the capacity to choose whether to agree to the touching (whether because he lacks sufficient understanding of the nature or foreseeable consequences of what is being done, or for any other reason).”
Such a lack of capacity not merely involved B being unable to choose to refuse to submit to sexual touching; it involved B being unable to choose to agree to such touching. Such lack of capacity, in rendering criminal sexual activity with B on the part of anyone other than a lawful spouse (see s 43), had the consequence if the law was observed that B, if unmarried, would be denied sexual activity.
That was a significant interference with B’s rights under Art 8 of the European Convention on Human Rights. It could only be justified if B’s mental disability was such that the interference was necessary for B’s own protection.
The test of incapacity to consent to sexual activity should be the same under criminal and civil law. There was little, if anything, between the test of capacity to choose in SOA 2003, s 30(2) and the common law test of capacity to consent that had been applied in the decided cases. The question had normally been whether the person concerned had had sufficient knowledge of the sexual character of the act to be able to give an informed consent to it. The issue in the instant case was what meaning to accord to “or for any other reason”. Those words set a similarly high hurdle for the prosecution to those that had gone before them.
The effect of a mental disorder necessarily had to be severe before it would have the effect that a person was unable to choose whether to submit to sexual activity. It would not be very helpful to attempt to exemplify the type of mental condition that might have that effect, notwithstanding that the person suffering from it was able to understand the nature of sexual activity. It was, however, possible to conceive of an acute episode of a mental disorder resulting in an inability to take a rational decision about sexual activity, or indeed other activities, notwithstanding that the person suffering from it had an understanding of the nature of sexual activity. Such a mental condition could fall within the words “or for any other reason”.
In the instant case, the judge had been right to allow the case to go to the jury, but the court had reservations about the reasons given by him for his decision. If the complainant had consented to sexual activity against her inclination because she was frightened of the defendants, even if her fear was irrational and caused by her mental disorder, it did not follow that she lacked the capacity to choose whether to agree to sexual activity. It did not follow from that irrational fear that the complainant would not have been capable of choosing whether or not to agree to sexual activity in circumstances which did not give rise to that fear. Irrational fear that prevented the exercise of choice could not be equated with lack of capacity to choose. A lack of capacity to choose to agree to sexual activity could not be “person specific” or “situation specific”.
Section 30(2)(b) was designed to address those whose mental disorders impaired their ability to communicate. There was no evidence in the instant case that the complainant had been unable to communicate any choice that she had made.
His lordship dealt with the remainder of the appeal on the facts and held that it should be allowed and the conviction quashed.
