A Local Authority v C
| Jurisdiction | England & Wales |
| Neutral Citation | [2021] EWCOP 25 |
| Year | 2021 |
| Court | Court of Protection |
Crime - Sexual offences - Causing or inciting person with mental disorder to engage in sexual activity - Adult with mental disorder wishing to contact sex worker in order to engage in sexual activity - Adult having capacity to engage in sexual relations and to decide to have contact with sex worker - Whether adult’s carers committing offence by facilitating such contact -
The local authority provided assisted-living accommodation for C, a vulnerable adult who had been diagnosed with autistic spectrum disorder. Taking the view that his prospects of finding a girlfriend were very limited, C expressed a wish to have contact with a sex worker so that he could engage in sexual activity. The local authority applied for a declaration as to whether a care plan facilitating C’s contact with a sex worker could be implemented without the commission of an offence under section 39 of the Sexual Offences Act 2003. Under that section a care worker who was involved in the care of a person who had a mental disorder committed an offence if he intentionally caused or incited that person to engage in a sexual activity. Although C had a mental disorder for the purposes of the 2003 Act, it was agreed by the parties that he had the capacity to engage in sexual relations and to decide to have contact with a sex worker.
On the application—
Held, that the aim of section 39 of the Sexual Offences Act 2003 was to prevent the exploitation of persons with mental disorders by those in positions of trust while simultaneously empowering, liberating and promoting the autonomy of those so protected; that, so construed, section 39 was not apt to criminalise carers who were motivated to facilitate a vulnerable adult’s autonomous sexual expression; that, therefore, it was not an offence under section 39 of the 2003 Act for a carer to assist a person with a mental disorder to make practical arrangements to contact, visit and engage in sexual activity with a sex worker if that person had capacity to decide to do those things; that any more restrictive interpretation of section 39 would result in a disproportionate and discriminatory interference with the rights of those with a mental disorder, contrary to article 8 read with article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms; and that the question whether to approve a care plan to facilitate C’s contact with a sex worker would be taken once a comprehensive risk assessment had been undertaken and a care plan devised which would illuminate whether and, if so, how such contact could be arranged (post, paras 40–44, 82–83, 86, 89–94).
The following cases are referred to in the judgment:
A Local Authority v TZ (No 2)
AL (Serbia) v Secretary of State for the Home Department
Alphacell Ltd v Woodward [
Attorney General of Hong Kong v Tse Hung-Lit [
Botta v Italy (Application No 21439/93) (
DH v Czech Republic (Application No 57325/00) (
Dubská v Czech Republic (Application Nos 28859/11 and 28473/12) (
EB v France (Application No 43546/02) (
Fisher v Bell [
Ghaidan v Godin-Mendoza
Lincolnshire County Council v AB
Marquis Camden v Inland Revenue Comrs [
Pepper v Hart [
Pretty v United Kingdom (Application No 2346/02) (
Price v Cromack [
R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [
R (Hurst) v London Northern District Coroner
R (Pretty) v Director of Public Prosecutions (Secretary of State for the Home Department intervening)
R (Purdy) v Director of Public Prosecutions (Society for the Protection of Unborn Children intervening)
R (Stott) v Secretary of State for Justice
Ternovszky v Hungary (Application No 67545/09) (unreported) 14 March 2011,
Tower Hamlets London Borough Council v NB (Consent to Sex)
The following additional cases were cited in argument or referred to in the skeleton arguments:
A Local Authority v H (No 2)
A Local Authority v JB
AM (Somalia) v Entry Clearance Officer
DP v Hillingdon London Borough Council
Glor v Switzerland (Application No 13444/04) (unreported) 30 April 2009,
Jones, In re
KA v Belgische Staat (Application Nos 42758/98 and 45558/99) [
M v Secretary of State for Work and Pensions
N (An Adult) (Court of Protection; Jurisdiction), In re
R v Grout
R v Kennedy (No 2)
R v Lambert
APPLICATION for a declaration
By an application dated 26 February 2019 the anonymised local authority, which was providing assisted living accommodation for C, a 27-year-old man, sought declarations as to the lawfulness of the local authority assisting C in contacting a sex worker for the purposes of having sex, highlighting the concerns of many consulted professional deputies and care providers that they might risk exposure to criminal offences under sections 39, 42 and 51A of the Sexual Offences Act 2003, and whether the suggested care plan was in C’s best interests. The respondents to the application were C, by his litigation friend AB, an anoymised clinical commissioning group and the Secretary of State for Justice. The clinical commissioning group and the local authority adopted a neutral stance on the application. C invited the court: (i) to adopt a purposive interpretation of the words “intentionally causing or inciting” contained in section 39 of the 2003 Act such that those assisting C were not to be considered to be part of the reason for his sexual activity taking place; alternatively, (ii) to restrict the meaning of “intentionally causing or inciting” by reading it down pursuant to section 3 of the Human Rights Act 1998, and established principles, to protect a right set out in the Convention for the Protection of Human Rights and Fundamental Freedoms; or (iii) to issue a declaration of incompatibility under section 4 of the 1998 Act. The Secretary of State resisted the application. The issue of whether a specific care plan was in C’s best interests was reserved for future determination.
The judgment is reported with leave of the judge on the basis that the anonymity of the vulnerable adult and his family members be strictly preserved.
The facts are stated in the judgment, post, paras 1–15, 26–36.
Neil Allen (instructed by Head of Legal Department) for the local authority.
Victoria Butler-Cole QC and Ben McCormack (instructed by
Sam Karim QC and Aisling Campbell (instructed by
Fiona Paterson (instructed by
The court took time for consideration.
26 April 2021. HAYDEN J handed down the following judgment.
1 This application concerns C, who is a 27-year-old man with a wide range of interests. He enjoys participating in sports, he listens to music, particularly rap music and he is interested in history. I have been told that he regularly visits museums with his carers. C has been diagnosed with Klinefelter syndrome (XXY syndrome). This is a genetic disorder that occurs in 1 in 660 men where the male has an additional X chromosome. Though men with XXY syndrome can live healthy lives, there are features of the syndrome which may impact on development. In C’s case, developmental delay and other social communication difficulties were noted when he was two years of age. The records show that C, as a child, preferred spending time on his own and avoided physical contact. C was first noted to speak at around four years of age.
2 C’s parents were plainly assiduous in pursuing assessment for him. In 1998, he was assessed for an autistic spectrum condition at Alder Hey Hospital. The assessment took place over a period of six weeks, C was aged four at this point. Dr Peter Gerome, Consultant Paediatrician, diagnosed C with autistic spectrum disorder. It is an understatement to say that in the years that followed, C could be extremely challenging; his behaviour was sometimes aggressive and dangerous. In 2011, it was necessary for C to move out of his family home. I have no doubt at all, having read all the papers, that the move was...
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