R v GA  EWCA Crim 299,  MHLO 148
"Section 1(2) of the Mental Capacity Act 2005 provides that 'A person must be assumed to have capacity unless it is established that he lacks capacity'. When capacity to consent is in issue in criminal proceedings, the burden of proving incapacity falls upon the party asserting it and will inevitably be the prosecution. We consider that, other than in criminal proceedings pursuant to section 44 of the Mental Capacity Act, the prosecution must discharge that burden to the criminal standard of proof; that is, they must make the jury sure that the complainant did not have capacity to consent. If the jury cannot be sure that the relevant complainant lacks capacity, then they must be directed to assume that he or she does. The issue for them then will be an examination of all the facts and circumstances to determine whether or not the complainant consented to the act or acts in question and whether the alleged assailant knew they did not consent or did not believe that they did so or were unreasonable in their belief that there was consent. In this particular case, expert evidence was led before the jury on the question of the complainant's capacity. It appears to us that it will inevitably be the case, if capacity is an issue, that an expert will be called to provide evidence which would not otherwise be within the common experience of the jury. It is vitally important that such evidence is 'expert', relevant and only deals with the matter in issue, namely capacity. Having read the transcript of the prosecution expert evidence in this case we regret to say that she exceeded her remit, particularly in articulating her own interpretation of the facts as to whether or not the complainant did consent. It is unfortunate that the witness was not adequately managed in the court process as a whole. What is more, it seems to us that the opinions expressed by the prosecution expert did not reflect the jurisprudence at the time. Therefore, even if not conceded we would have allowed the appeal being certain that decided that the jury's finding was unsafe on two grounds: (i) the judge adopted the wrong standard of proof in his directions to the jury in relation to the issue of capacity; and (ii) the expert evidence not fit for purpose to assist the jury to come to any conclusion at all as to the capacity of by the complainant to consent to sexual relations."
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
CRIME — Person lacking capacity — Standard of proof — Defendant with learning disability charged with sexual assault against complainant with learning disability — Whether complainant having capacity to “consent” to sexual acts charged — Jury finding defendant did acts charged — Whether judge directing jury correctly as to burden and standard of proof to make jury sure complainant not having capacity to consent — Whether criminal or civil standard — Sexual Offences Act 2003, s 3
Regina v A (G)
;  WLR (D) 55
CA: Macur LJ, Burton J, Judge Batty QC: 6 February 2014
When at issue, the burden of proving incapacity under the Sexual Offences Act 2003 fell on the party asserting it, namely the Crown, who had to discharge the burden to the criminal standard of proof and make the jury sure the complainant did not have the capacity to consent.
The Court of Appeal (Criminal Division) so stated when allowing an appeal by the defendant, GA, against conviction on 30 August 2012 in the Crown Court at Wood Green, before Judge Patrick and a jury, of sexual assault contrary to section 3 of the Sexual Offences Act 2003, following a hearing under section 4A of the Criminal Procedure (Insanity) Act 1964, as substituted by section 2 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 and amended by section 22(4) of the Domestic Violence, Crime and Victims Act, where the jury found the defendant had committed the act alleged.
MACUR LJ, giving the judgment of the court, said that the defendant appealed on the novel point of law of whether the trial judge had correctly directed the jury as to the burden and standard of proof to be applied in a case which concerned a defendant and the capacity of the complainant to consent to the acts which the jury subsequently found to have occurred and which the defendant admitted. The decision of the Court of Appeal in IM v LM  WLR (D) 31 did not address the issue in the case, namely which burden and standard of proof to apply in criminal proceedings which had not had not been brought under section 44 of the Mental Capacity Act 2005. The terminology of the 2005 Act made clear that the standard to be applied in assessing capacity under that Act was the civil standard. The Sexual Offences Act 2003 did not define capacity in the same way as sections 2 and 3 of the 2005 Act. Section 74 of the 2003 Act provided an interpretation of the word “consent.” Definitions from two separate Acts of Parliament were not subject to the same standards of proof. The Court of Protection looked to the future conduct of the person in question, whereas the criminal law looked retrospectively to acts which had occurred. It was desirable that there should be no inconsistency between criminal and civil law and there was no reason for jurisprudence or related statutory terminology to be inconsistent. The guidance provided by the 2005 Act might form a beneficial checklist for any court called upon to define the issue of capacity. Appropriate directions had to be given to the jury. The statutory terms of the definition were placed in the context provided by jurisprudence. The capacity of the defendant differed in response to different questions of daily life. Jurisprudence was clear that the capacity under consideration was fact specific. When at issue, the burden of proving incapacity fell on the party asserting it, namely the Crown. The Crown had to discharge the burden to the criminal standard of proof and make the jury sure the complainant did not have the capacity to consent. That accorded with the clear intent of the 2005 Act that capacity had to be presumed until otherwise proved. If the jury could not be sure that the complainant lacked capacity it had to be directed that he or she had capacity. The issue as to whether the complainant consented to the act in question was fact specific and in the present case expert evidence had been put before the jury to assist them in determining the question of capacity. It was important that when expert evidence was given to assist the jury in matters not in their common experience that such evidence was relevant and only dealt with the matter in issue, namely capacity (see IM v LM  WLR (D) 31). In the present case the evidence given had not been in the expert’s remit and did not go to the issue of capacity. The judge had adopted the wrong standard of proof in his directions to the jury on the issue of capacity. The Crown had correctly conceded the appeal. The appeal was allowed. The concession made by the jury and the supervision order would be set aside.
Appearances: Lisa Marie Wilding (assigned by the Registrar of Criminal Appeals) for the defendant; Jennifer Knight (instructed by Crown Prosecution Service, Appeals Unit) for the Crown.
Reported by: Georgina Orde, Barrister.
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BAILII. (added to Bailii on 28/12/16)