Secretary of State for Justice v A Local Authority  EWCA Civ 1527
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Court of Appeal
Secretary of State for Justice v A Local Authority and others (Institute of Registered Case Managers and another intervening)
2021 July 29; Oct 22
Lord Burnett of Maldon CJ, King, Baker LJJ
Mental disorder— Court of Protection— Criminal offence— Vulnerable adult male with disability desiring to experience sexual relations with sex worker, having capacity to consent to sexual relations but unable to make arrangements— Whether criminal offence for care workers to make necessary arrangements for vulnerable adult to experience consensual sexual relations with sex worker— Whether by making arrangements care workers would "cause" vulnerable adult to engage in sexual activity— Sexual Offences Act 2003 (c 42), s 39
A man of 27, C, suffered from a genetic disorder which caused developmental delay and difficulty with social communication. In 2018 C had stated that he would like to experience sexual relations and asked if he could make contact with a sex worker. He had the capacity to consent to sex and to have contact with a sex worker but he lacked the ability to make such arrangements himself. Thus it would be C’s care workers who would make any such arrangements for him. Section 39 of the Sexual Offences Act 2003 provided that it was an offence for care workers to “cause” someone with a mental disorder to engage in sexual activity; and the local authority therefore asked the Court of Protection to rule on the question whether, if C’s care workers were to make the arrangements in question, they would be “causing” him to engage in sexual activity, contrary to section 39 of the 2003 Act. The judge found that they would not, ruling that section 39 aimed to protect vulnerable adults from others, not from themselves, and that the care workers’ actions would be calculated to give voice to C’s sexual autonomy.
On the Secretary of State’s appeal —
Held, appeal allowed. The judge in the proceedings in the Court of Protection was not asked to make a best interests decision but to express a view on the application of section 39 to a hypothetical set of facts; and it was doubtful whether it was appropriate for him to have entertained the matter. In exceptional cases, a civil court could make a declaration clarifying the meaning of a criminal statutory provision or could, more rarely, indicate that future conduct would or would not amount to a criminal offence, and section 15 of the Mental Capacity Act 2005 empowered the Court of Protection to make declarations about the lawfulness of specific provisions in a care plan; but the court should be sparing in its use of that power to declare that acts which had the potential to be criminal would in fact be lawful. It should only do so where the circumstances were exceptional and the reasons cogent. Looking to section 39 of the 2003 Act the word “causes” in that provision was to be given its ordinarily understood meaning in the criminal law. The judge erred in having read in language so as to restrict that ordinary meaning. The test for causation was whether the acts in question created the circumstances in which something might happen, or whether they caused it in a legal sense. In the present case the care workers would be “causing” sexual activity in a legal sense and would therefore be at risk of committing an offence contrary to section 39. The 2003 Act sought to protect a group of people who were vulnerable by drawing bright lines which reduced risk to the cohort generally. Parliament had restricted the freedom of some individuals in the wider interest of protecting vulnerable people as a group. Therefore the arrangements for securing the services of a sex worker envisaged in the present case would place the care workers in peril of committing an offence contrary to section 39. Moreover, neither article 8 nor article 14 of the Convention on Human Rights compelled a different reading. Section 39 sought to protect a large number of vulnerable people and, to the extent that it discriminated against people in C’s position, it represented the considered view of Parliament striking a balance in a difficult area. It was clearly justified and its discriminatory effect could not be said to be manifestly without reasonable foundation (paras 23–30, 43–49, 50–65, 66, 68, 69, 72)
Decision of Hayden JM reversed.
Sir James Eadie QC, Sarah Hannett QC and Fiona Paterson (instructed by Treasury Solicitor) for the Secretary of State.
Parishil Patel QC and Neil Allen (instructed by Solicitor to the local authority) for the local authority.
Victoria Butler-Cole QC and Ben McCormack (instructed by Odonnells Solicitors, Oldham) for the second respondent, C (by his litigation friend, AB).
Sam Karim QC and Aisling Campbell (instructed by Hill Dickinson LLP) for the third respondent, A Clinical Commissioning Group.
Gerard Martin QC and Matthew Stockwell (instructed by Irwin Mitchell LLP) for the first intervener, the Institute of Registered Case Managers.
Anthony Metzer QC and Charlotte Proudman (instructed by Solicitor, Centre for Women’s Justice) for the second joint interveners, Nia women@thewell.
Matthew Brotherton, Barrister
Sexual Offences Act 2003 (c 42), s 39