R v C

JurisdictionEngland & Wales
CourtHouse of Lords
Judgment Date30 Jul 2009
Neutral Citation[2009] UKHL 42

[2009] UKHL 42


Appellate Committee

Lord Hope of Craighead

Lord Rodger of Earlsferry

Baroness Hale of Richmond

Lord Brown of Eaton-under-Heywood

Lord Mance

(Respondent) (On Appeal from the Court of Appeal (Criminal Division))


Alison Foster QC

Fenella Morris

(Instructed by Crown Prosecution Service)


Richard Wormald

Rachel Kapila

(Instructed by Hallinan, Blackburn, Gittings and Notts)


My Lords,


The issue in this case is as to the scope of the words "unable to communicate" in section 30(2)(b) of the Sexual Offences Act 2003. The defendant was charged with intentionally touching the complainant by penetrating her mouth with his penis in circumstances where the touching was sexual, the complainant was unable to refuse because of or for a reason related to a mental disorder and the defendant knew or could reasonably have been expected to know that she had a mental disorder and that because of it or for a reason related to it she would be likely to be unable to refuse. Section 30(2)(b), read together with section 30(2)(a), provides that a complainant is unable to refuse if she is unable to communicate to the defendant a choice whether to agree to the touching, whether because she lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason.


The judge allowed the case to go to the jury on the basis that they would be entitled to reach the conclusion that, because of her mental capacity, the complainant was unable to refuse due to an irrational fear of what was happening to her. They found the defendant guilty of the offence. The Court of Appeal said that the complainant's irrational fear due to her mental disorder could not be equated with a lack of capacity to choose, and there was no evidence that she was physically unable to communicate any choice that she had made: [2008] EWCA Crim 1155; [2009] 1 Cr App R 211, paras 53-55. The defendant's conviction was set aside. The Crown has appealed against this decision on the ground that, due to a misreading of the section in general and of the words "for any other reason" in particular, it wrongly narrows the protection for persons suffering from a mental disorder that impedes their choice as to whether or not to engage in a sexual activity.


I have had the advantage of reading in draft the speech of my noble and learned friend Baroness Hale of Richmond. I am in full agreement with her careful analysis of the issue and with the conclusion that she has reached. I also agree with the observations of my noble and learned friend Lord Rodger of Earlsferry. For the reasons they give I would answer each of the certified questions in the affirmative and allow the appeal.


My Lords,


I have had the great advantage of considering in draft the speech to be delivered by my noble and learned friend, Baroness Hale of Richmond. I agree with it and, for the reasons which she gives, I too would allow the appeal. I add one comment.


The Court of Appeal appear to have interpreted section 30(2)(b) of the 2003 Act as applying to a physical inability of a complainant to communicate her choice to the defendant. That interpretation is unsound. The offence is created by section 30(1). One of the essential elements is that "B [the complainant] is unable to refuse because of or for a reason related to a mental disorder." The function of subsection (2) is merely to fill out the meaning of the words "B is unable to refuse" in subsection (1). So, as Baroness Hale points out, subsection (2)(b) must refer to B's inability, "because of or for a reason related to a mental disorder", to communicate her choice to A..


If, by contrast, B, having the capacity to choose whether to agree to the sexual touching, chooses not to consent, but is unable to communicate her choice to A because of a "physical disability", and A does not reasonably believe that she consents, then A is guilty of rape. See section 1 and section 75(2)(e).


In short, where the complainant's inability to communicate her choice not to consent to the sexual act is due to a physical disability, the ordinary offences in sections 1 to 4 apply; where her inability to communicate her choice is due to a mental disorder, the special offences in sections 30 to 33 apply.


My Lords,


The second half of the twentieth century saw a revolution in the law's attitudes towards people with a mental disorder or disability. Previously they had been segregated from the rest of society, detained in large institutions on the outskirts of town or deep in the countryside, and denied the benefits of close personal relationships. The Mental Health Act 1959 introduced a new policy. As much as possible, people with mental disorders and disabilities should be integrated into society, treated as much like anyone else as it was possible to do and enjoying the same rights as other people.


One of the rights which other people take for granted is the right to have sexual relationships with the partners of their choice. But the 1959 Act (and its successor, the Mental Health Act 1983) did not change the old attitudes in one respect. Section 7 of the Sexual Offences Act 1956 made it an offence for any man to have extra-marital sexual intercourse with a "defective", defined as any woman who suffered from "a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning" (1956 Act, s 45, as substituted by s 127(1) of the 1959 Act). Nor could such a woman or such a man give a valid consent to an indecent assault (1956 Act, ss 14(4) and (15(3)). It was also an offence for a man to commit homosexual acts with a severely impaired man (Sexual Offences Act 1967, s 1(3) and (4)).


This approach was both under- and over-inclusive. It included some severely handicapped women and men who might be quite capable of making a genuine choice about their sexual partners and would not be harmed by their sexual relationships. It denied them the sexual fulfilment which most people take for granted these days, simply on the basis of a status or diagnosis. On the other hand, it did not include people with other mental disorders which might well mean that they lacked the capacity to make a genuine choice about their sexual relationships.


This problem formed a small part of two separate law reform projects which gathered momentum during the 1990s. In 1989, the Law Commission began a project on decision-making on behalf of people who lacked the capacity to make decisions for themselves. This culminated in their Report on Mental Incapacity (1995, Law Com No 231). The proposals in that Report were taken forward by the Government in a Consultation Paper, Who Decides? ( 1997, Cm 3803) and their Report, Making Decisions ( 1999, Cm 4465). After further pre-legislative scrutiny of a draft Bill, the Mental Capacity Act was passed in 2005 and came into force in 2007.


Nothing in that Act, of course, allows a decision about sexual relations to be taken on behalf of anyone else (s 27(1)(b)). That is a decision which only the person concerned can take. But the project was important because it discussed the essential ingredients of the capacity to make a decision for oneself. Three broad approaches could be discerned in the existing law and literature: the "status", the "outcome" and the "functional" approaches. The status approach excluded all people with a particular characteristic from a particular decision, irrespective of their actual capacity to make it at the time: this, of course, was the approach of the Sexual Offences Act 1956 to sexual relations with mental "defectives". The Commission pointed out that "the status approach is quite out of tune with the policy aim of enabling and encouraging people to take for themselves any decision which they have capacity to take" (Law Com No 231, para 3.3).


The "outcome" approach focused on the final content of the decision: a decision which is inconsistent with conventional values or with which the assessor disagreed might be classified as incompetent. This approach "penalises individuality and demands conformity at the expense of personal autonomy" (Law Com No 231, para 3.4). The Commission therefore recommended the functional approach: this asked whether, at the time the decision had to be made, the person could understand its nature and effects. "Importantly, both partial and fluctuating capacity can be recognised" (Law Com No 231, para 3.5). However, the Commission went on to accept that understanding might not be enough. There were cases where people could understand the nature and effects of the decision to be made but the effects of their mental disability prevented them from using that information in the decision-making process. The examples given were an anorexic who always decides not to eat or a person whose mental disability meant that he or she was "unable to exert their will against some stronger person who wishes to influence their decisions or against some force majeure of circumstances" (Law Com No 231, para 3.17).


In 1999, the Home Office embarked upon a Review of Sex Offences. The meaning of consent and capacity to consent were obviously important parts of that. The Law Commission had already done a considerable amount of work on Consent in the Criminal Law ((1995) Consultation Paper No 139) and was asked for its help. The resulting Report on Consent in Sex Offences was published as an Appendix to the Home Office Report, Setting the Boundaries: Reforming the Law on Sex Offences (Home Office, 2000).


This adopted essentially the same "functional" approach as had the earlier Report on...

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