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.
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