By: Anogika Souresh

The Court of Protection and Criminal Law

30 October 2021 by Anogika Souresh

Re C [2021] EWCA Civ 1527

This is an appeal from Hayden J’s judgment in Re C [2021] 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”).

Background

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.

[Emphasis Added]

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: 

1. The Judge misinterpreted section 39 SOA; 
2. To sanction the use of sex is contrary to public policy (this ground of appeal was raised by way of an opposed amendment); 
3. The Judge erred in concluding that Articles 8 and 14 of the European Convention on Human Rights (“ECHR”) required his favoured interpretation. 

High Court dismisses Harry Dunn challenge

14 December 2020 by Anogika Souresh

R (on the application of Charlotte Charles and Tim Dunn) v Secretary of State for Foreign and Commonwealth Affairs & Chief Constable of Northamptonshire Police [2020] EWHC 3185 (Admin)

At a “rolled up” hearing on both permission and substantive merits, a challenge was considered by the High Court to the decision of the Foreign and Commonwealth Office’s (“FCO”) that Anne Sacoolas, the wife of a member of the US Government’s Technical and Administrative staff stationed at RAF Croughton, was entitled to diplomatic immunity from prosecution.

The challenge to this decision was dismissed on all grounds. However, permission to appeal to the Court of Appeal has been granted.