For the purposes of s30 Sexual Offences Act 2003: (1) lack of capacity to choose can be person or situation specific; (2) an irrational fear arising from mental disorder that prevents the exercise of choice could amount to a lack of capacity to choose; (3) inability to communicate could be as a result of a mental or physical disorder.
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The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
CRIME — Sexual offences — Sexual activity with person with mental disorder impeding choice — “Any other reason” — Whether including irrational fear — Whether incapacity to choose issue-specific — Inability to communicate choice — Whether limited to physical inability — Sexual Offences Act 2003, s 30(1)(2)
The words of s 30(2)(a) of the Sexual Offences Act 2003 “or for any other reason” were wide enough to include an irrational fear preventing the free exercise of choice, and inability to communicate the choice made within s 30(2)(b) was not limited to physical inability.
The House of Lords so held when allowing an appeal by the Crown from the Court of Appeal (Criminal Division) (Lord Phillips of Worth Matravers CJ, Bean and Wilkie JJ) on 23 May 2008 allowing an appeal by the defendant, C, against his conviction at the Crown Court at Croydon (Judge Stow and a jury) of sexual activity with a person with a mental disorder impeding choice, contrary to s 30, and ordering a retrial.
BARONESS HALE said that the complainant, a 28-year-old woman, suffered from schizo-affective disorder and an emotionally unstable personality disorder and had an IQ of less than 75. On the day in question, when in a distressed and agitated state, she had met the defendant, who had offered to help her. He had taken her to a friend’s house where sexual activity had occurred. The questions certified for the Committee were whether the Court of Appeal had unduly limited the scope of s 30(1) in holding that a lack of capacity to choose could not be person- or situation-specific, that an irrational fear preventing the exercise of choice could not be equated with a lack of capacity to choose and that to fall within s 30(2)(b) a complainant had to be physically unable to choose by reason of mental disorder. The words “for any other reason” in s 30(2)(a) could encompass a wide range of circumstances in which mental disorder might rob a person of the ability to make an autonomous choice even though they might have sufficient understanding of the information relevant to making it. A mentally disordered person might be quite capable of exercising choice in one situation but not another. It was difficult to think of an activity more person- and situation-specific than sexual relations. An irrational fear could deprive a person of capacity. Mr Wormald had pointed to features in the evidence suggesting that the complainant had reluctantly exercised a choice to go along with what had been asked of her because of her fear of the consequences if she did not, but it was difficult to suggest that the jury had not been entitled to reach the verdict they had. There was no reason to limit inability to communicate to physical inability. Parliament had clearly had in mind inability the result of or associated with a disorder of the mind. The appeal should be allowed and the conviction should stand.
LORD HOPE delivered a short opinion agreeing with Baroness Hale and Lord Rodger.
LORD RODGER delivered a short opinion agreeing with Baroness Hale.
LORD BROWN and LORD MANCE agreed with Baroness Hale.
 UKHL 42;  WLR (D) 272
HL(E): Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood, Lord Mance: 30 July 2009
Appearances: Alison Foster QC and Fenella Morris (instructed by Crown Prosecution Service, Special Crimes Division) for the Crown; Richard Wormald and Rachel Kapila (instructed by Hallinan Blackburn Gittings & Nott) for the defendant.
Reported by: Michael Gardner, barrister
ICLR  WLR (D) 272