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Criminal law capacity cases

The old category structure used on this page is comprehensive as it contains every relevant case. The new database structure was introduced in 2019. It is more potentially useful than the old categorisation system: it includes all cases since January 2017, but only a minority of older cases: see Special:Drilldown/Cases. The pages below are initially ordered according to the dates on which they were added to the site (most recent first). The order can be changed by clicking on the symbol beside a column heading: click on the symbol beside "Page and summary" for alphabetical order; click beside "Categories" for the order in which the cases were reported. Click on the arrow symbol again to reverse the order. Click on a page name to view the relevant page. Asterisks mark those cases which have been added to the new database structure.

Case and summary Date added Categories
R v GA [2014] EWCA Crim 299, [2014] 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." 2016‑12‑29 21:08:41 2014 cases, Capacity to consent to sexual relations cases, Criminal law capacity cases, ICLR summary, Judgment available on Bailii, No summary, Transcript

R v Kenyon (Lindsay) [2013] EWCA Crim 2123, [2013] MHLO 135Unsuccessful appeal against eight-month sentence for eight offences of neglect of a person who lacks capacity contrary to MCA 2005 s44. 2013‑12‑30 22:14:53 2013 cases, Brief summary, Criminal law capacity cases, Judgment available offline, Judgment missing from Bailii, Transcript

R v Turbill [2013] EWCA Crim 1422, [2013] MHLO 70 — "Four members of staff at a care home in Bromsgrove were charged with wilfully neglecting one of their residents, contrary to [section 44] of the Mental Capacity Act 2005. ... Even if the agreed formula was sufficient to give the jury the kind of clear directions they needed (about which we have our doubts) the judge's directions strayed beyond them. In some of the passages to which we have referred, he appears to equate carelessness or negligence with wilful neglect. They are not the same. ... For all those reasons, we have no option, as it seems to us, but to quash the convictions." 2013‑08‑08 19:27:17 2013 cases, Criminal law capacity cases, ICLR summary, Judgment available on Bailii, Transcript

Pender v DPP [2013] EWHC 2598 (Admin)An ASBO was imposed with a 'no begging' condition. A Crown Court appeal, based on uncontradicted medical evidence (that the appellant suffered learning difficulties, schizophrenia and severe nicotine addiction, and that begging was the manifestation of nicotine addiction), was unsuccessful. The Court of Appeal allowed an appeal by way of case stated, because the judge had failed to set out the factual basis for her factual conclusion (which was contrary to the medical evidence) that the appellant had been capable of complying with the ASBO. 2013‑03‑26 17:42:34 2013 cases, Brief summary, Criminal law capacity cases, Judgment available on Bailii, Judgment available on MHLO, No transcript

G v DPP [2012] EWHC 3174 (Admin), [2012] MHLO 140At the Youth Court it had been argued that the case should be stayed since it would be an abuse of the court's process to proceed to an adjudication when the appellant was unfit to plead, to participate in his trial and to instruct his defence. Having heard medical evidence from both sides, the District Judge declined to stay the proceedings, arranged for the appointment of an intermediary and accepted the intermediary's advice as to the way in which the appellant should be assisted during the course of the hearing; he found the charge proved. This was an appeal by way of case stated in relation to the appellant's conviction at the Youth Court. (1) The High Court set out the rules for appeals and commented that the way in which the appeal had been prepared is was lamentable. (2) The District Judge had correctly followed the guidance (from DPP v P) for proceedings in the Youth Court in which capacity is relevant. (3) The defence expert confused the propriety of a prosecution with the ability to understand the nature of proceedings and communicate instructions and the District Judge was entitled to disagree with her. 2012‑12‑19 23:22:42 2012 cases, Brief summary, Criminal law capacity cases, Judgment available on MHLO, Judgment missing from Bailii, Transcript

R v Ligaya Nursing [2012] EWCA Crim 2521, [2012] MHLO 134 — "This is an appeal against conviction by Ligaya Nursing who, on 15 May 2012 in the Crown Court at Southampton, before His Honour Judge Ralls and a jury, was convicted of neglect of a person who lacked capacity, contrary to s.44 of the Mental Capacity Act 2005." [Detailed summary available.] 2012‑12‑19 18:31:23 2012 cases, Criminal law capacity cases, Detailed summary, ICLR summary, Judgment available on Bailii, Transcript

C v R [2012] EWCA Crim 2034, [2012] MHLO 104The appellant appealed against his convictions for sexual offences on the basis that there had been no sexual relationship with the complainant (his step-daughter) before she was 16 years of age, and that thereafter the sexual relationship had been consensual. There was a substantial body of evidence which showed apparent consent to sexual activity after the complainant was 16 years old. But once the jury were satisfied that sexual activity had occurred when the complainant was a child, and that it impacted on and reflected the appellant's dominance and control over the complainant, it was open to them to conclude that the evidence of apparent consent when the complainant was no longer a child was indeed apparent, not real, and that the appellant was well aware that in reality she was not consenting. 2012‑10‑27 17:48:40 2012 cases, Brief summary, Criminal law capacity cases, Judgment available on Bailii, Transcript

R v Heaney [2011] EWCA Crim 2682The appellant had been convicted of two offences under MCA 2005 s44 and sentenced to consecutive 3- and 6-month sentences of imprisonment; on appeal, these were ordered to be served concurrently. The court took into account that 'neither of the victims in fact sustained any distress or injury and they were very short incidents', that the consequences for the appellant had been grave because she had lost her career, that she was a middle-aged woman with two young daughters, and that she was of previous good character. 2011‑11‑21 18:27:21 2011 cases, Brief summary, Criminal law capacity cases, Judgment available on MHLO, Judgment missing from Bailii, Other capacity cases, Transcript

R v Hopkins; R v Priest [2011] EWCA Crim 1513 — Prosecution under MCA 2005 s44. 2011‑07‑18 22:30:54 2011 cases, Criminal law capacity cases, Judgment available on MHLO, Judgment missing from Bailii, No summary, Other capacity cases, Transcript

R v Dunn [2010] EWCA Crim 2935Dunn had been convicted of four counts of ill-treating a person without capacity contrary to MCA 2005 s44 against three victims at the residential care home of which she was manageress. The judge had directed that 'a person without capacity' meant a person unable to make decisions for himself because of a disturbance or impairment of function of the mind or brain, that a diagnosis of dementia was not enough, that 'impairment' could be permanent or temporary, that capacity was presumed unless disproved on the balance of probabilities, and that this direction applied to all three victims. The defendant appealed on the basis that the direction on 'a person without capacity' was inadequate, failed to focus on the capacity of each victim to make a decision at the relevant time, and failed to identify the questions required by s3. Appeal dismissed. (1) The legislation, including s2, was convoluted and did not appropriately define the elements of the offence (including 'matter' and 'disturbance or impairment'). (2) Lack of capacity had to be decided on the balance of probabilities. (3) There was a disconnect between s44 (referring to 'persons without capacity') and the elaborate definition sections (ss2 and 3), but it was open for the jury to conclude that the decisions regarding care (the 'matter') were taken had been made because the victims lacked capacity. (4) It was unnecessary for the judge to complicate matters by referring to s3, and the conviction was safe. [Summary based on All ER (D) summary in absence of transcript.] 2010‑11‑25 23:23:02 2010 cases, Brief summary, Criminal law capacity cases, Judgment available on Bailii, Transcript

* Sexual consent R v C [2009] UKHL 42For 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. 2009‑08‑01 17:39:15

* Capacity to consent to sexual activity R v C [2008] EWCA Crim 1155If the complainant consented to sexual activity against her inclination because she was frightened of the defendant, even if her fear was irrational and caused by her mental disorder, it did not follow that she lacked the capacity to choose whether to agree to sexual activity. [Overturned on appeal.] 2008‑12‑14 22:51:05