The Court of Protection and Criminal Law
30 October 2021
This is an appeal from Hayden J’s judgment in Re C  EWCOP 25.
The appeal was allowed on the basis that care workers making arrangements to secure the services of a sex worker for C would place the care workers in peril of committing an offence contrary to section 39 of the Sexual Offences Act 2003 (“SOA”).
The issue was whether care workers would commit a criminal offence under section 39 of the SOA if they made practical arrangements for C to visit a sex worker. C had the capacity to consent to sexual relations but not to make the arrangements.
Section 39(1) SOA states that:
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.
The central question was whether the care workers would “cause” C to engage in sexual activity by making the arrangements. Hayden J concluded that they would not cause C to engage in sexual activity.
The Secretary of State for Justice appealed on three grounds:
- The Judge misinterpreted section 39 SOA;
- To sanction the use of sex is contrary to public policy (this ground of appeal was raised by way of an opposed amendment);
- The Judge erred in concluding that Articles 8 and 14 of the European Convention on Human Rights (“ECHR”) required his favoured interpretation.
Hayden J concluded that:
The central philosophy of the SOA is to protect those in relationships predicated on trust where the relationship itself elevates vulnerability. This essentially progressive legislation has been careful, in my judgement, to avoid constricting the life opportunities of those with learning disabilities or mental disorders […] The legislative objective is to criminalise a serious breach of trust […] They are intending to criminalise those in a position of authority and trust whose actions are calculated to repress the autonomy of those with a mental disorder, in the sphere of sexual relations. Section 39 is structured to protect vulnerable adults from others, not from themselves [89, 93].
Therefore, a care worker who has arranged a sex worker should not be subject to criminal sanctions as they had facilitated an exercise of personal autonomy.
The Court of Appeal started, instead, by exploring the meaning of “causation”. It concludes that causation in the SOA should be read in accordance with its ordinary meaning in the criminal law . The conduct of the defendant needs to be an operative cause of the prohibited activity .
The Court of Appeal concludes that it was incorrect for Hayden J to restrict the ordinary meaning of the word “causes” .
It goes on to say that the “legislative technique of the 2003 Act is to draw bright lines to reduce the risk of the abuse of those who are vulnerable and elsewhere to draw bright lines because it is necessary for certainty” .
Further, the Court of Appeal compares section 39 SOA with other similarly drafted sections of the SOA. It would be incongruous for “causes” to mean the same thing in all but one section of the SOA. In particular, the Court of Appeal refers to section 17 SOA, which criminalises those in a position of trust intentionally causing or inciting a child to engage in sexual activity. “Unless the word “causes” means different things in sections 17 and 39 that line of defence would be open to him on the judge’s interpretation. No argument was advanced to the effect that the words “causes or incites” should mean different things in different places in Part 1 of the 2003 Act” .
Therefore, the Court of Appeal concludes that the word “causes” should be read in accordance with its ordinary meanings.
However, the Court of Appeal goes on to say that:
By contrast care workers who arrange contact between a mentally disordered person and spouse or partner aware that sexual activity may take place would more naturally be creating the circumstances for that activity rather than causing it in a legal sense .
Permission to amend the grounds of appeal to include arguments about public policy was refused.
It was argued that section 39 SOA interferes with C’s private life under Article 8 of the ECHR, as the scope of achieving his sexual desires is much reduced if his care workers cannot make these arrangements. Further, it was argued that there was an interference with Article 14 ECHR as: (1) C will be treated differently from a person without a mental disability who can make their own arrangements and (2) C suffers discrimination by reason of his mental disability by comparison with those without.
However, the Court of Appeal correctly points out that:
There is no sign of such a positive obligation having been recognised by the Strasbourg Court, nor of that court having recognised that article 8 entails a positive obligation on the state to allow the purchase of sex without fear of criminal sanction […] It is far from surprising that no case of the Strasbourg Court has been cited to us that recognises a human right to purchase the services of the prostitute or to be provided with such services by the state [53, 58].
As to the interference with Article 14 ECHR, the Court of Appeal states that the SOA throws a “general cloak of protection around a large number of vulnerable people” and therefore any discrimination represents the balance struck to achieve this .
Drawing from Baker LJ’s example of a care worker “creating the circumstance” for sexual activity rather than “causing” it, King LJ refers to other “benign situations” which may occur. While any declaration under section 15 of the Mental Capacity Act 2005 will be done on a case-by-case basis, this case does, nonetheless, have far-reaching implications.
While the court was not asked to consider any other circumstances in which section 39 SOA would come into effect, this is likely to be a consideration for care workers, deputies, and those working in the field of mental capacity.