The Secretary of State for Justice v A Local Authority

JurisdictionEngland & Wales
JudgeLord Burnett of Maldon CJ,Lady Justice King,Lord Justice Baker
Judgment Date22 October 2021
Neutral Citation[2021] EWCA Civ 1527
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: B4/2021/0879
Between:
The Secretary of State for Justice
Appellant
and
(1) A Local Authority
(2) C (by his litigation friend, AB)
(3) A Clinical Commissioning Group
Respondents

and

Institute of Registered Case Managers
First Intervener

and

Nia Women@thewell
Second Joint Interveners

[2021] EWCA Civ 1527

Before:

The Lord Burnett of Maldon

LORD CHIEF JUSTICE OF ENGLAND AND WALES

Lady Justice King

and

Lord Justice Baker

Case No: B4/2021/0879

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE COURT OF PROTECTION

Mr Justice Hayden

[2021] EWCOP 25

Royal Courts of Justice

Strand, London, WC2A 2LL

Sir James Eadie QC, Sarah Hannett QC and Fiona Paterson (instructed by The Treasury Solicitor) for the Appellant

Parishil Patel QC and Neil Allen (instructed by A Local Authority) for the First Respondent

Victoria Butler-Cole QC and Ben McCormack (instructed by Odonnells Solicitors) for the Second Respondent

Sam Karim QC and Aisling Campbell (instructed by Hill Dickinson LLP) for the Third Respondent

Gerard Martin QC and Matthew Stockwell (instructed by Irwin Mitchell LLP) for the First Intervener

Anthony Metzer QC and Charlotte Proudman (instructed by The Centre for Women's Justice) for the Second Joint Interveners

Hearing date: 29 July 2021

Approved Judgment

Lord Burnett of Maldon CJ
1

Hayden J, sitting in the Court of Protection, decided that care workers would not commit a criminal offence under section 39 of the Sexual Offences Act 2003 (“the 2003 Act”) were they to make the practical arrangements for a 27 year old man (“C”) to visit a sex worker in circumstances where he has capacity (within the meaning of the Mental Capacity Act 2005 (“the 2005 Act”)) to consent to sexual relations and decide to have contact with a sex worker but not to make the arrangements himself.

2

Section 39 provides:

39. Care workers: causing or inciting sexual activity

(1) A person (A) commits an offence if—

(a) he intentionally causes or incites another person (B) to engage in an activity,

(b) the activity is sexual,

(c) B has a mental disorder,

(d) A knows or could reasonably be expected to know that B has a mental disorder, and

(e) A is involved in B's care in a way that falls within section 42.

(2) Where in proceedings for an offence under this section it is proved that the other person had a mental disorder, it is to be taken that the defendant knew or could reasonably have been expected to know that that person had a mental disorder unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know it.

(3) A person guilty of an offence under this section, if the activity caused or incited involved—

(a) penetration of B's anus or vagina,

(b) penetration of B's mouth with a person's penis,

(c) penetration of a person's anus or vagina with a part of B's body or by B with anything else, or

(d) penetration of a person's mouth with B's penis,

is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years.

(4) Unless subsection (3) applies, a person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years.”

3

The practical arrangements envisaged would involve care workers booking the sex worker, making the necessary arrangements for C to visit her and paying her. The circumstances would not engage the concept of incitement, because they would be acting to make C's wishes come to fruition, but rather the issue was whether by making all the arrangements the care workers would “cause” C to engage in sexual activity. The judge concluded they would not.

4

C does not have capacity to conduct these proceedings; to decide where to live; to decide upon his care and treatment; to manage his financial affairs or to decide to use the internet or social media. Hayden J dealt with the question concerning section 39 as a preliminary issue in advance of considering a care plan but made no order under the 2005 Act and made no declaration. Nonetheless, it is common ground before us that he made a “decision” which is the proper subject of an appeal by the Secretary of State for Justice who had been added as a respondent below. We proceed on that basis.

5

The Secretary of State advances three grounds of appeal. First, that the judge misinterpreted section 39 of the 2003 Act. Secondly, that to sanction the use of a sex worker is contrary to public policy; and thirdly that the judge erred in concluding that articles 8 and 14 of the European Convention on Human Rights (“the Convention”) required his favoured interpretation. The second ground has been raised by way of a proposed amendment to the grounds of appeal. The amendment is opposed; and the third is conditional, in the sense that the judge reached his conclusion on statutory interpretation without recourse to section 3 of the Human Rights Act 1998 (“the 1998 Act”).

6

C has been diagnosed with Klinefelter Syndrome (XXY syndrome). That is a genetic disorder where a male has an additional X chromosome. In C's case, the disorder has resulted in developmental delays and other social communication difficulties. C needs significant assistance with independent living which requires the deprivation of his liberty. The Court of Protection has authorised his deprivation of liberty since 2017. In August 2018 C expressed a desire to have a girlfriend but considered his prospects of finding one to be very limited. He had unsuccessfully tried conventional methods of meeting people but to no avail. C told his Care Act advocate that he wanted to have sex and wished to know whether he could have contact with a prostitute. C's Care Act advocate raised the matter with his social worker, and in due course, proceedings were commenced by the Local Authority to address the lawfulness of such contact.

7

It is unnecessary to go into great detail about the difficulties faced by C save to note that for a period of three years up to October 2017 he was detained under section 3 of the Mental Health Act 1983 due to the risk he presented of sexual and physical violence to others. Since that time C has been subject to a deprivation of liberty order, made in part because of the risk of sexual and violent deviancy he presents when he suffers from intrusive thoughts. Given some of the behaviour he has exhibited, there is a serious question mark over whether he could safely be left alone with a sex worker. No doubt a duty of care would be owed to such a sex worker by those who commissioned her services and extensive disclosure of C's previous behaviour would be required. Alternatively, if C objected or there were overriding privacy concerns the project might anyway flounder. The judge recognised this when he said that there would have to be a careful risk assessment at a later stage and a further best interests hearing if section 39 of the 2003 Act was not an impediment: para [15]. Whether in the light of the disclosure that would be required it is realistic to contemplate a prostitute willingly becoming involved is a moot point; so too is whether public bodies, through the commissioning of care workers, could responsibly expose such a person to risk. As the parties before us recognised, even if the judge were to conclude at a later hearing that it was in the best interests of C to be provided with the services of a sex worker it would not necessarily happen. Indeed, the position of the Clinical Commissioning Group is that the risks to C and the sex worker may be too great for this potential scheme to be implemented whatever the correct approach to the 2003 Act may be

8

The judge received detailed evidence about the hypothetical practical steps that could be taken were C's wishes translated into reality through a care plan. It was envisaged that the services of a sex worker would be engaged with assistance from a charity known as The Outsiders Trust, a social charity providing support for disabled people. Many disabled people (whether or not they lack capacity to make particular decisions) find difficulty in forming intimate relationships. The charity vets sex workers before allowing them to advertise their services on its website. Anyone may then contact a sex worker to book a service. The judge observed “vetting really implies nothing more, or indeed less, than ascertaining that the sex worker is both respectful to and understanding of the needs and challenges faced by those with disabilities.”

The Sexual Offences Act 2003

9

The 2003 Act brought about a complete revision of the criminal law relating to sexual offending. Sections 38 to 41 are concerned with offences by care workers for persons with a mental disorder. Section 79 adopts the definition of “mental disorder” found in section 1 of the Mental Health Act 1983.

10

A suite of offences was also created between sections 30 and 33 entitled “offences against persons with a mental disorder impeding choice” (sexual activity with a person with a mental disorder impeding choice, causing or inciting sexual activity by such a person, engaging in sexual activity in the presence of such a person, and causing such a person to watch a sexual act). It is not suggested that C's condition is such that the concept of “impeding choice” applies to him, namely that the person “is unable to refuse because of or by reason related to a mental disorder.” The concept of “impeding choice” and capacity under the 2005 Act are not the same.

11

Sections 34 to 37 create offences of inducing persons with a mental disorder to engage in or watch sexual activity. The offences relating to inducing a person with a mental disorder to do something sexual require the agreement of the person concerned to have been obtained by means of “an...

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2 firm's commentaries
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    • Mondaq UK
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    ...s39 did not interfere with his human rights. You can read the judgment in The Secretary of State for Justice v A Local Authority & Ors [2021] EWCA Civ 1527 here What does this mean? Acting as a deputy or being a carer for an individual who lacks mental capacity can involve particularly sens......
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    • Mondaq UK
    • 17 March 2022
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