Capacity – consent – jury directions – mental disorder – sexual offences against mentally disordered persons

R v C: CA (Crim Div) (Lord Chief Justice Phillips, Mr Justice Bean, Mr Justice Wilkie): 23 May 2008

The appellant (C) appealed against his conviction for sexual activity with a person with a mental disorder impeding choice, contrary to section 30(1) of the Sexual Offences Act 2003.

The complainant (X) was a 28-year-old woman diagnosed with schizo-affective disorder and emotionally unstable personality disorder. Her mental disorders could manifest themselves in episodes of impulsive and aggressive behaviour, high agitation, delusions, hallucinations, depression or mania.

X had been living in a supervised hostel when her condition began to deteriorate and she became concerned for her safety if she remained in the area. She alleged that she met C, who had offered to help her, and was taken by him to the co-defendant’s house, where she was given crack cocaine and engaged in sexual activity with C and the co-defendant.

Afterwards, X was found by police and was returned to the hostel, where she was found to be very distressed and unable to talk, appearing traumatised. In interview she said that she had submitted to the acts out of fear of being harmed. The prosecution brought expert medical evidence that, in all the circumstances, X would not have had the capacity to consent to sexual intercourse.

At trial C and the co-defendant argued that, although X’s capacity to consent was impaired, she did not wholly lack capacity to choose, in the sense of lacking sufficient understanding of the nature of the act or its consequences.

The judge directed the jury that, for the purposes of section 30(2)(a) of the act, X would have lacked capacity to choose whether to agree to sexual touching ‘for any other reason’ if she had an irrational fear or confusion of mind arising from her mental disorder, and that X would have been unable to refuse if, through her mental disorder, she was unable to communicate, even though she could physically communicate.

C submitted that: (1) the judge was wrong to leave the case to the jury, as the prosecution had failed to prove that X did not understand the nature or consequences of the acts, and wrong to conclude that the words ‘for any other reason’ were wide enough to cover an irrational fear or confusion of mind. C argued that the words covered a lack of capacity similar to an inability to understand the nature and consequences of sexual activity; (2) in summing up, the judge had failed to give sufficient help to the jury on the issue of lack of capacity.

Held: (1) The judge’s summary of the law to the jury would have been appropriate had section 30(1) not been qualified by section 30(2)(a), which provided a comprehensive definition of the relevant lack of capacity. That lack involved not merely a complainant being unable to choose to refuse sexual activity, but being unable to choose to agree to it. The test should be the same under criminal and civil law. There was little, if any, difference between the test to choose under section 30(2) and the common law test of capacity to consent, X City Council v MB [2006] EWHC 168 (Fam), [2006] 2 FLR 968 applied.

The issue in the present case was what meaning to accord to ‘for any other reason’. The effect of a mental disorder necessarily had to be severe before the person was unable to choose whether to submit to sexual activity. An acute episode of a mental disorder that resulted in an inability to take a rational decision about sexual activity, notwithstanding that the sufferer understood the nature of sexual activity, could fall within the words ‘for any other reason’. On the evidence, there was a case to answer that X’s condition fell within section 30(2)(a), but irrational fear that prevented the exercise of choice could not be equated with lack of capacity to choose. Such a lack of capacity to choose to agree could not be ‘person-specific’ or even ‘situation-specific’, Local Authority X v MM [2007] EWHC 2003 (Fam), [2008] 11 CCL Rep 119 applied. There was no evidence that X was unable to communicate her choice within the meaning of section 30(2)(b), which section was designed to address those whose mental disorders impaired that ability.

(2) In the circumstances the summing up was inadequate. The judge should have reminded the jury of the medical evidence as to X’s mental disorder and directed it that, if that had left her so distressed or confused that she could not make a coherent decision, whoever might make the request, the jury could conclude that X lacked capacity to choose. Accordingly, the conviction was not safe.

Appeal allowed.

Richard Wormald for the appellant; Johannah Cutts QC for the Crown.