- Sexual Offences Crime, Consent and Capacity -

and Contraception, Confidentiality

and Compensation

Belinda Schwehr

[email protected]

Care and Health Law

07974 399361 / 01252 725890

© Belinda Schwehr, 2013

Introduction

Awareness of what constitutes a sexual crime, or a civil assault, as opposed to unintentional unwanted conduct associated with risks, which need to be managed, if possible, is key to the handling of adult and child abuse, but also essential to all good, proactive care planning.

The criminal law is found in the Sexual Offences Act. The first part of the 2003 Act covers sexual offences, with a focus on the behaviour in question. The second part has an emphasis on the protection of vulnerable individuals, by concentrating on the impaired capacity of some people to consent. http://www.cps.gov.uk/legal/p_to_r/rape_and_sexual_offences/ ….is the sexual offences manual used by the CPS. In terms of the evidence, there must be a realistic prospect of conviction. The Policy Statement emphasises the need for case building. Rather than merely spotting the evidential failings, prosecutors are encouraged to think ‘Well, there is a problem here but is there anyway that we can improve the evidence so that the Code standard is met?‘ http://www.cps.gov.uk/publications/prosecution/mental_health.html

…is the guidance from the CPS about how they expect to treat cases where the victim has learning difficulties or mental health problems, with a view to ensuring that they do not have less access to justice.

http://www.cps.gov.uk/legal/p_to_r/prosecuting_crimes_against_older_people/index.html#mental

…is the page about offences against older people….

Sex offender statistics

64,000 registered sex offenders in England and Wales as of July 2013 2,600 Sexual Offences Prevention Orders imposed 2011-12 50 Foreign Travel Orders imposed 2005-12 In 2012/13 the police in England and Wales recorded: 5,156 offences of rape of a female child under 16 1,138 offences of rape of a male child under 16 4,171 offences of sexual assault on a female child under 13 1,267 offences of sexual assault on a male child under 13 6,634 offences of sexual activity involving a child under 16 176 offences of abuse of children through prostitution and pornography 373 offences of sexual grooming 192 offences of abuse of a position of trust involving a child under 18.

Interestingly, no stats found on the extent to which these victims were mentally impaired or vulnerable!

0.5 per cent of females report being a victim of the most serious offences of rape or sexual assault by penetration in the previous 12 months, equivalent to around 85,000 victims on average per year. Less than 0.1 per cent of males (around 12,000) report being a victim of the same types of offences in the previous 12 months. 5% females (aged 16 to 59) reported being a victim of a most serious sexual offence since the age of 16. Extending this to include other sexual offences such as sexual threats, unwanted touching or indecent exposure, this increased to 20% reporting being a victim since the age of 16. Around 90 per cent of victims of the most serious sexual offences in the previous year knew the perpetrator, compared with less than half for other sexual offences.

In 2011, only 40 offenders out of 1,200 received a non-custodial sentence for rape. The average custodial sentence length (ACSL) for those offenders convicted of rape in 2011 was in excess of eight and a half years, an increase of nearly 21 months since 2005. The ACSL across all sexual offences was just under four and a half years, an increase of almost a year since 2005.

Criminal sexual offences against adults and children

• • • • • Part 2 the notification requirements (sometimes referred to as the sex offenders register) and the range of civil preventative orders. The Act refers to the defendant as 'A' and the complainant as 'B', a practice followed in this Guidance. The text of the Act and the explanatory notes can be accessed on-line at www.legislation.gov.uk

and http://www.legislation.gov.uk/ukpga/2003/42/notes/division/5 Home Office guidance on Part 1 and Part 2 of the Act.

Sentencing Council Definitive Guideline Sexual offences Act 2003 Everything relevant that could be ambiguous, is now defined by the Act, eg (8)Touching includes touching— (a)with any part of the body, (b)with anything else, (c)through anything

Historic sexual offences

• • • • • • • • • • The Sexual Offences Act 2003 (the Act) came into force on the 1 May 2004 and applies to all offences committed on or after that date. The Act repealed almost all of the previous statute law in relation to sexual offences. Sexual offences that occurred prior to the Sexual Offences Act 2003, that is before 1 May 2004, are charged under the Sexual Offences Act 1956. They are called similar names to the new current offences but the sentencing rules are different: Rape - section 1; Unlawful sexual intercourse by a man with a girl under 13 - section 5; Buggery - section 12; Gross indecency - section 13; Indecent assault on a woman - section 14; and Indecent assault on a man - section 15. When it is not possible to prove whether the offence occurred before or after 1st May 2004, it will be conclusively presumed that the time when

the conduct took place was when the old law applied, if the offence

attracted a lesser maximum penalty: otherwise it will be presumed that the conduct took place after the implementation of the new law. Mental Health Act 1959 – contained offences pre-dating implementation of the Sexual Offences Act 2003, relating to activities with people suffering from mental disorder eg unlawful sexual intercourse with patients/residents suffering mental disorder;

The main sexual offences

Section 1: Rape: This is now defined as penetrating a person with a penis, without consent, in the vagina, anus or mouth, where the accused does not reasonably believe that the person consents. What is reasonable is to be considered in all of the circumstances, including any steps taken by the accused to ascertain whether the person consents. The maximum sentence for rape is life imprisonment

For the purposes of this section, and Sections 2, 3 and 4, where “consent” is an issue, there

are additional presumptions, set out in Sections 75 and 76. There will be a statutory presumption that no consent has been given, and a statutory presumption that the accused did not reasonably believe that such consent had been given, if any of the following circumstances exist: - The use of violence against the complainant, or causing him/her fear of violence.

- The same, in respect of violence against a third party, or causing the alleged victim to fear violence against a third party.

- The complainant was unlawfully detained.

- The complainant was asleep or unconscious.

- Due to a physical disability, the alleged victim would be unable to communicate consent.

- Somebody has administered, or caused to be taken, without consent, a substance which is capable of causing/enabling him/her to be overpowered or stupefied.

This presumption can be rebutted. A non-care worker, prosecuted for a sex offence where consent is one of the relevant aspects of the offence could contend that one believed that one was operating under best interests, in extreme circumstances, perhaps.

Conclusive presumptions about consent

• • •

In certain situations it is to be conclusively presumed (ie proved, and not able to be rebutted by evidence) that the victim did not consent and the defendant did not believe that the victim consented: These situations are the use of intentional deception about the nature or purpose of the relevant act, or the intentional

impersonation of a person known to the victim, in order to

induce consent.

Applies to prosecutions for particular acts only, such as rape, assault by penetration, sexual assault and causing engagement in sexual activity without consent.

Other serious sexual offences

Section 2: Assault by Penetration: The intentional sexual penetration of a person’s vagina or anus with any part of the body, or an object, without that person's consent, and without reasonably believing that that person consents. Maximum sentence: life imprisonment.

Section 3: Sexual Assault: Intentional sexual touching of another person, without consent, and without reasonably believing that that person consents. Maximum sentence: 10 years’ imprisonment.

Section 4: Intentionally causing a person to engage in sexual activity without consent, and without reasonably believing that that person consents. This offence is committed where a person involves a third party, either by the third party sexually assaulting the victim, or the victim being compelled to perform certain acts to the third party.

If the activity involves the penetration of the victim’s anus or vagina, or involves the penetration of the victim’s mouth with a person’s penis, or another person’s vagina/anus with part of the victim’s body, or by the victim with anything else, or a person’s mouth with the victim’s penis, the maximum sentence is life imprisonment. Otherwise, the maximum sentence is 10 years’ imprisonment.

Offences in relation to children

Section 5: Rape of a Child: If a person intentionally penetrates the vagina, anus or mouth of a child under the age of 13, with a penis, then there is no defence, and this criminal offence is committed. The maximum sentence is life imprisonment.

Section 6: Assault of Child by Penetration: This is the same as the offence committed in Section 2, but where it is committed against a child under the age of 13, the issue of consent is irrelevant, and the offence is committed without any defence. The maximum sentence is life imprisonment.

Section 7: Sexual Assault of Child: This is the same offence as in Section 3, but against a child under the age of 13. Consent is irrelevant, and there is no statutory defence. The maximum sentence is life imprisonment.

Section 8: Causing or Inciting Child under Age of 13: Intentionally to cause or incite a child under the age of 13 to engage in a sexual activity. The offences are split, as in Section 4, in relation to seriousness. The more serious ones carry a maximum of life imprisonment, the less serious ones a maximum of 14 years’ imprisonment.

Section 9: Sexual Activity with a Child: Where a person over the age of 18 sexually touches another child, with intent, and either:- the child is under the age of 13; or the child is under the age of 16, and the accused does not reasonably believe that the child is over the age of 16. Maximum sentence: 14 years’ imprisonment.

Children continued

Section 10: Causing/Inciting Sexual Activity with a Child: Where a person over the age of 18 causes or incites a child to engage in sexual activity and either:- the child is under the age of 13; or he child is under the age of 16, and the accused does not reasonably believe that the child is over the age of 16. Maximum sentence: 14 years’ imprisonment.

Section 11: Sexual Activity in presence of a child: Where a person over the age of 18 intentionally engages in a sexual activity and, for the purposes of sexual gratification, does it, either when the child is present, or when the child is in a place from where the accused can be observed, and where the accused knows, believes or intends that the child should be aware, and either:- the child is under the age of 13; or the child is under the age of 16, and the accused does not reasonably believe that the child is over the age of 16. Maximum sentence: 10 years’ imprisonment.

Section 12: Causing Child to Watch Third Party Sexual Activity: Where a person over the age of 18, for the purposes of sexual gratification, intentionally causes a child to watch a third party engage in a sexual activity, or to look at an image of any person engaged in sexual activity, and either:- the child is under the age of 13; or the child is under the age of 16, and the accused does not reasonably believe that the child is over 16. For the purposes of this offence, and others under the Act in relation to pornography, it is not necessary for the Prosecution to prove that the “image” is of a real person. Maximum sentence: 10 years’ imprisonment.

Section 13: Sex offences by Children: Where a person under the age of 18 commits offences under Section 9, 10, 11 or 12, these are specific offences under Section 13, carrying a maximum sentence of five years’ imprisonment.

How does the law affects those who advise children?

• • • • • •

A person does not commit an offence of aiding or abetting a child sex offence if they give advice to children in order to: protect them from sexually transmitted infection, protect their physical safety, prevent them from becoming pregnant, or promote their emotional well-being.

This means that parents, doctors, other health professionals, in fact anyone can provide sexual health advice to children as long as their only motivation in

doing so is the protection of the child.

Grooming and Trust offences

Section 15: Grooming: Where a person over the age of 18, having met or communicated with a child on at least two occasions, intentionally meets the child or travels to meet the child anywhere in the world, with the intention of committing a sexual offence (whether during, or after, the meeting); and where the child is under 16, and the accused does not reasonably believe the child to be over 16. Maximum sentence: 10 years’ imprisonment.

Section 16: Abuse of Trust and Sexual Assault: Where a person over the age of 18 intentionally sexually touches a child or young person, the accused is in a position of trust (see later), and the child or young person is either:- under the age of 13; or under the age of 18, and the accused does not reasonably believe that person to be over the age of 18. Maximum sentence: five years’ imprisonment.

Section 17: Abuse of Trust and Incitement: Similar to Section 16, where the person in the position of trust intentionally causes or incites the child to engage in sexual activity. Maximum sentence: five years’ imprisonment.

Section 18: Abuse of Trust and Sexual Activity: Similar to Section 16, where the person inn the position of trust intentionally engages in a sexual activity, for sexual gratification, and does it when he child or young person is either present or can observe it. Maximum sentence: five years’ imprisonment.

Section 19: Abuse of Trust and Third Parties: Similar to Section 16 above, where the person in the position of trust, for sexual gratification, intentionally causes the child or young person to watch a third party engage in sexual activity, or to look at images of such sexual activity. Maximum sentence: five years’ imprisonment.

Sections 21 and 22: Definitions of Position of Trust

For the purposes of Sections 16, 17, 18 and 19: - The person is looking after a detained child.

- The person is looking after an accommodated child.

- The person is looking after a child in hospital, clinic, care home, children’s home, residential family centre, educational institution, and certain placements under the Employment and Training Act, or he Learning and Skills Act.

- A person having regular unsupervised contact with a looked after child.

- The author of a Section 7 Report under the Children Act, if regularly having unsupervised contact.

- A personal adviser under the provisions of Section 23B or Section 19C of the Children Act, in relation to a looked after child.

- Anyone looking after a child under a Care Order, Supervision Order or Education Supervision Order.

- A Guardian from CAFCASS, if having regular unsupervised contact.

- - A looked after child, after their release from detention. “Looked after” is defined very widely.

Section 23: Exemption: There are certain exemptions if the person in the position of trust and the young person are married.

Section 24: There are certain exemptions if there was a pre-existing sexual relationship before the Act came into force, and sexual intercourse between the adult and the young person has previously been lawful.

More child familial offences

Section 25: Sexual Activity with a Child Family Member: Intentionally sexually touching a child, when the relationship between the accused and the child/young person is prohibited under Section 27, and the accused could reasonably be expected to know of the nature of that relationship, and either:- the child is under the age of 13; or the child is under the age of 18, and the accused did not reasonably believe that person to be over 18. The more serious offences carry a maximum imprisonment of 14 years. Other offences carry a maximum sentence of five years’ imprisonment.

Section 26: Inciting Sexual Activity with Child Family Member: Similar to above, by inciting third party to engage in such sexual activity, or inciting the child. Maximum sentences: 14 years’ or five years’ imprisonment.

Section 27: Prohibitions on Sexual Relationships within Families: The prohibitions now include family relationships through adoption, as well as by blood tie. If one is the parent, grandparent, sibling, half-sibling, aunt or uncle of the other, OR one is, or has been, the foster parent of the other, or If the two are living in the same household, or have lived in the same household, or one has regularly been caring for, training, supervising or in sole charge of the other, AND one is the step-parent, cousin or stepsibling of the other. “Step-parent” includes a partner of a parent, not just a spouse, and “step-sibling” includes reference to a child of the partner of a parent.

Offences against persons with a mental disorder impeding choice

• • • • • • • • • • The 2003 Act provides protection for persons with a mental disorder and abolishes the term 'mental defective'. There are three categories of offences for vulnerable persons. They are: Offences against persons with a mental disorder impeding choice (sections 30-33); Offences where there are inducements etc. to persons with a mental disorder (sections 34 37); and Offences by care workers against persons with a mental disorder (sections 38-41) The legislation draws a distinction between: those persons who have a mental disorder impeding choice, persons whose mental functioning is so impaired at the time of the sexual activity that they are unable to make any decision about their involvement in that activity, i.e. they are 'unable to refuse', those who have the capacity to consent to sexual activity but who have a mental disorder that makes them vulnerable to inducement, threat or deception; and those who have the capacity to consent to sexual activity but who have a mental disorder and are in a position of dependency upon the carer. In all these offences, mental disorder is defined as set out in section 1 of the Mental Health Act 1983, as amended by the Mental Health Act 2007, as 'any disorder or disability of the mind'. As well as including serious mental illness this definition ensures the protection of those with a lifelong learning disability and persons who develop dementia in later life. Medical evidence will usually be required to prove that a person has a mental disorder.

• • • •

Offences relating to people with impaired capacity

No such thing as sex with ‘a defective’ any longer Therefore no presumption that sexual activity with a learning disabled person is always criminal – that is hard to handle, for some people working with this client group, but it must be right in legal terms – capacity is issue specific, and not ONLY related to IQ.

Some offences turn upon whether there is a disorder impeding choice; others turn upon the having of a mental disorder making the person vulnerable to inducement etc; and some just turn on a relationship of care if a person has a mental disorder - those offences regarding care workers.

The essence of the main offence (sexual activity with a person with a mental disorder impeding choice s30) is sexual touching which the person is unable to refuse due to a reason related to a mental disorder and the ‘doer’ knows or could reasonably be expected to know of the disorder

and its likely effect on the inability to refuse

• • This is why vulnerable perpetrators with significant impairments don’t get prosecuted; they could not be expected to be found guilty by a properly directed jury, and it would be a waste of money and not in the public interest to proceed...

They can be found to have done the act, even if they are unfit to plead, or be tried, however.

Definition of inability to refuse

• • •

If the person lacks the capacity to choose whether to agree to the touching or is unable to communicate such choice.

That is expanded to mean lacking sufficient

understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason.

So you could be having sex, or engaging in acts that are clearly sexual, regularly, because of having become sexualised in whatever way that has happened, but

easily be found not to have capacity to consent to sex,

and thus a victim, despite other evidence of involvement with your partner – as in the recent vasectomy case.

The offences most relevant to adult protection staff rather than to the police:

Section 30: Sexual Activity with a Person with a Mental Disorder with impediment to choice

choice: The intentional sexual touching of another person, where that person is unable to refuse, either because of, or in relation to, a mental disorder; and the alleged perpetrator knew, or could reasonably be expected to have known, about the disorder. “Mental disorder” means lacking the capacity to choose, or being unable to communicate such a choice. Depending upon the seriousness of the offence, the respective maximum sentences are life imprisonment and 14 years’ imprisonment.

Section 31: Causing/Inciting Mentally Disordered Person with impediment to choice: Intentionally causing or inciting a mentally disordered person to engage in sexual activity. Maximum sentences: Life imprisonment/14 years’ imprisonment.

Section 32: Sexual Activity in Presence of Mentally Disordered Person with impediment to

choice : Intentionally engaging in sexual activity and, for the purposes of sexual gratification, doing it with a mentally disordered person present. Maximum sentence: 10 years’ imprisonment.

Section 33: Third Party Sexual Activity re Mentally Disordered Person with impediment to

choice : for the purposes of sexual gratification, causing a mentally disordered person to watch third parties engage in sexual activity or to watch an image of sexual activity. Maximum sentence: 10 years’ imprisonment.

The next few turn on mere mental disorder, including incapacity

Section 34: Sexual Activity with Mentally Disordered Person through Pressure/Deception: Where a person, with the agreement of a mentally disordered person, engages in sexual touching of tat person, of any sort, and the agreement has been obtained by inducement, threat or deception. Depending upon the seriousness of the offence, the maximum sentence is life imprisonment or 14 years’ imprisonment.

Section 35: Pressure/Threats to Mentally Disordered Person: Where a person intentionally causes a mentally disordered person to engage in a sexual activity, through inducements, deception or threats. Depending upon the seriousness of the offence, the maximum sentence is either life imprisonment or 14 years’ imprisonment.

Section 36: Pressure/Threats to Mentally Disordered Person to Observe Sexual Activity: Where a person engages in sexual activity, where a mentally disordered person is either present or can observe, and the mentally disordered person is in that place due to inducements, threats or deception. Maximum sentence: 10 years’ imprisonment.

Section 37: Third Party Sexual Activity, etc, Watched by Mentally Disordered Person: Where a person, for sexual gratification, causes a mentally disordered person to watch a third party engage in sexual activity, or to look at an image of sexual activity, through inducements, threats or deception. Maximum sentence: 12 years’ imprisonment.

Care worker offences

Section 38 Care workers: sexual activity with a person with a mental disorder

(1)A person (A) commits an offence if— (a)he intentionally touches another person (B), (b)the touching 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.

(2)Where in proceedings for an offence under this section it is proved that the other person had a mental disorder, it is to be taken that the defendant

knew or could reasonably have been expected to know that that person had

a mental disorder unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know it.

Who is a care worker for this Act?

• • • If the person is in a care home and the worker has functions to perform which have brought him into regular face to face contact with the client If the person is at home and is provided with services by the NHS, or independent medical services if the worker’s functions have brought them into regular face to face contact Or if the worker is a provider of care, assistance or services to the person in connection with their mental disorder and has had regular face to face contact with the client – so this covers support workers, and direct payments PAs and volunteers.

• • (4)This subsection applies if A— (a)is, whether or not in the course of employment, a provider of care, assistance or services to B in connection with B’s mental disorder, and (b)as such, has had or is likely to have regular face to face contact with B.

So this would appear to apply to people who care formally or informally for their family members, even if they could not be reported to the DBB.

Very important if you are a care worker

Section 39 Care workers: causing or inciting sexual activity

(1)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.

How do you educate someone in relation to developing sexuality, then? ‘Inciting’ sounds inherently bad, but could the offence be made out merely by someone having put a person in a position, or having encouraged them, in good faith?

There is no defence provided for regarding the educational support or protection of an impaired adult, although there is for children. This is a gap in the proper protection of care workers, who may need to implement a care plan, in my view, which envisages educating and supporting a person believed to have capacity, notwithstanding their mental disorder, into awareness of sex… Other care worker offences – sections 40 and 41 - sexual activity in the presence of a

person with a mental disorder and causing a person with a mental disorder to watch a sexual DO have a necessary element for a conviction that the person did it for the purposes of obtaining sexual gratification – so a conscientious educative or protective intent, would not be criminalised.

Other offences

Section 45: Indecent Photographs: For certain purposes, the protective legislation is extended to the protection of 16- and 17-year-old young people (unless the relevant people are married).

Section 47: Exploitation through Prostitution: Intentionally obtaining sexual services from a person and, before obtaining them, the person has made or promised payment to either the alleged victim r third party (or knows that somebody else has done so), and the alleged victim is either under 13, or is under 18 and the person does not have reasonable cause to believe that he/she is over 8 years old. The maximum sentences are life imprisonment for under 13, 14 years’ imprisonment for under 16, and seven years’ imprisonment for under 18.

Section 48: Inciting Child Prostitution, etc: Intentionally causing or inciting a child to become a prostitute, or be involved in pornography, anywhere in the world, and either the child is under the age f 13, or is under the age of 18, and the person does not reasonably believe him/her to be over the age of 18. Maximum sentence: 14 years’ imprisonment.

Section 49: Controlling Child Prostitutes: Intentionally controlling a child’s involvement in prostitution or pornography, and the child is either under 13, or under 18, and the person does not reasonably believe him/her to be over 18. Maximum sentence: 14 years’ imprisonment.

Section 50: Arranging child prostitution: Initiating arrangements for, or facilitating, a child’s involvement in prostitution or pornography, and the child is either under 13, or under 18, and the person does not reasonably believe him/her to be over 18 years old. Maximum sentence: 14 years’ imprisonment Section 51A: Soliciting sex (in a street, public place including a vehicle) so not a crime if you buy it over the phone or on the internet.

Section 52: Causing/Inciting Prostitution: Intentionally causing or inciting a person, anywhere in the world, to become a prostitute either for the gain of that person, or for the gain of a third party. Maximum sentence: seven years’ imprisonment.

Section 53 and 53A: Control of Prostitute: Intentionally controlling the activity of a prostitute, anywhere in the world. Maximum sentence: seven years’ imprisonment. Note: The definition of “gain” is very wide, including financial gain, and goodwill that is likely to bring financial advantage.

Section 53A makes paying for sex a crime only if a prostitute has been subjected to force etc. by a third

party.

Section 55: Brothels: Keeping or managing a brothel, or assisting in the keeping or management of a brothel. Section 56/Schedule 1: Certain prostitution offences are now rendered gender-neutral – for example, soliciting and kerb-crawling.

Section 57: Trafficking offences: the original offences have been amended significantly and here is the link to the current legal position: http://www.legislation.gov.uk/ukpga/2012/9/section/109/prospective

And more!

Section 61: Administering Drugs, etc: Intentionally administering a substance to, or causing it to be taken by, the alleged victim, without consent, and with the intention of stupefying or overpowering that person, to enable any person to have sexual activity with him/her. Maximum sentence: 10 years’ imprisonment.

Section 62: Offences with a View to Sexual Abuse: Committing any offence, with the intention of committing a sexual offence. This also includes aiding, abetting, etc. Maximum sentence: 10 years’ imprisonment, but life imprisonment if kidnapping or false imprisonment.

Section 63: Trespass/Sexual Offences: Trespassing, either knowingly or recklessly, with intent to commit a sexual offence on the premises. This includes tents and vehicles, etc. Maximum sentence: 10 years’ imprisonment.

Section 64: Sex with Adult Relative: this covers a situation where the accused is aged 16 or over, and the other relative is aged 18 or over. It is an offence for the first person intentionally to sexually penetrate the second person’s vagina or anus with anything, or the second person’s mouth with a penis, AND the two are related. “Relationship” is defined as parent, grandparent, child, grandchild, sibling, half-sibling, aunt, uncle, nephew and niece. Maximum sentence: two years’ imprisonment.

Section 65: Sex with Adult Relative: As above in reverse, where the accused is over the age of 16 and consents to the penetration of him/herself. Maximum sentence: two years’ imprisonment.

More!

Section 66: Sexual Exposure: Intentionally exposing genitals with intent that someone will see, and be alarmed or distressed. Maximum sentence: two years’ imprisonment.

Section 67: Voyeurism: this involves any of the following:- for sexual gratification, observing another person doing a “private act”, and knowing that the other person does not consent. Eg Operating equipment with the intention of enabling another person to observe such a private act. Recording a person doing such a “private act”, for the purposes of him/herself or a third party viewing it, for the purposes of sexual gratification. Installing equipment, or constructing or adapting a structure, for the purposes of the above. Maximum sentence: two years’ imprisonment.

A “private act” is where a person’s genitals, buttocks or breasts are exposed, or covered only in underwear, or where a person is using a lavatory, or is engaged in a sexual act not of a kind ordinarily done in public.

Section 69: Animals: Intercourse with an animal. Maximum sentence: two years’ imprisonment.

Section 70: Corpses: Sexual penetration of a corpse. Maximum sentence: two years’ imprisonment.

Section 71: Sexual Activity in a Lavatory. Maximum sentence: six months’ imprisonment.

Section 72/Schedule 2: Offences outside the UK: A sexual act committed outside the UK is a sexual offence in the UK, if it would be an offence in the UK if committed here, and if it is also a criminal offence in the relevant country where it is committed.

• • • • • • •

Impaired perpetrators - fitness to be tried – the decision to prosecute

Prosecutors will need information and evidence about any mental health problems at the earliest opportunity in order to review the case in accordance with the Code for Crown Prosecutors. Where the police have been advised of the defendant's condition and prognosis by the Social Services, Probation Service, psychiatrists or other professionals, who may advocate a particular approach or disposal, the advising agency should be encouraged to set out their views in writing. Where this is not possible, the police should summarise any views expressed to them orally; The police should include on the file a brief summary of their reasons for starting proceedings or their views as to whether the suspect should be prosecuted; the CPS should be informed if the defendant has been seen by a psychiatrist or arrangements have been made to have him or her assessed; If the police want to release the defendant on unconditional bail on the understanding that he or she will accept certain conditions (such as treatment or residence) the period of bail should be kept to a minimum. Any informal conditions should be clearly stated on the CPS file; Many courts have schemes to facilitate the process of assessment and the provision of constructive and coherent reports to the courts. Where such a scheme is available, the offender should be referred to it for investigation and a report. In the absence of such a scheme, prosecutors must consider whether the information supplied is sufficient upon which to base their decision. A recent report from a psychiatrist, community psychiatric nurse or social worker may provide sufficient information about the offender's mental disorder to allow the prosecutor to decide whether a prosecution is in the public interest. When the information is inconclusive or out of date, further information should be sought. It will not usually be necessary for the information about the defendant's mental state to be in the form of a statement before it can be considered. However, the information should be in writing and prosecutors must be satisfied that it is reliable before taking any decision based on it. All such information should be kept on the CPS file.

Impaired victims: competence to give evidence vs capacity to consent

• • • • • •

The Youth Justice and Criminal Evidence Act 1999 sets out the general rule that people are competent to act as witnesses unless they cannot understand questions asked of them at court and answer them in a manner which can be understood (with, if necessary, the assistance of special measures).

Having had a stroke or brain injury; a mental health problem; dementia; a learning disability; confusion, drowsiness or unconsciousness because of an illness or the treatment for it; substance misuse etc, can affect capacity in relation to the core issue – consent – or conveying lack of consent to the perpetrator – but competence as a witness is a capacity test in a particular context, and is not necessarily the same as the question of capacity in relation to the alleged offence. The CPS guide says this: “ Under the Mental Capacity Act 2005, the people who decide whether or not a person has capacity to take a particular decision are called assessors . Anyone can be an assessor - for example, a family member, a care worker, a nurse or social worker. However, health and social care practitioners or other relevant professionals and experts must be involved when an assessment and/or decision has significant consequences. These include when the person's capacity may be challenged by someone; when reporting abuse or a crime; or where the decision has legal complications or consequences.”

This is such rubbish!! The only instance of the word ‘assessor’ in the MCA is a best interests assessor in connection with DoLS! Under the Act, the decision maker is always the person next in line to make a decision, and that decision in this context, is made by the police or CPS, with help, maybe, but still by them.

It is sufficient if there is an intelligible thread in responses to questions, even if patchy, which could be evaluated for cogency and reliability by the jury. In DPP v R [2007] EWHC 1842 Admin, the court held that it was correct, when determining whether a witness was competent, to consider competence at the time of the interview and at the time when the witness was called upon to give evidence, where the evidence in chief was given via a video recording under the provisions of section 19 of the Youth and Criminal Evidence Act 1999. The fact that a witness now had no independent recollection of the facts, such that he/she was unable to give intelligible answers did not mean that he/she was no longer competent.

s135 Interpretation: mentally disordered offenders

(1)In this Part, a reference to a conviction includes a reference to a finding of a court in summary proceedings, where the court makes an

order under an enactment within subsection (2), that the accused did

the act charged; and similar references are to be interpreted accordingly.

(2)The enactments are— (a) section 37(3) of the Mental Health Act 1983 (c. 20); ….

(3) In this Part, a reference to a person being or having been found to be under a disability and to have done the act charged against him in respect of an offence includes a reference to his being or having been found— (a) unfit to be tried for the offence; (b) to be insane so that his trial for the offence cannot or could not proceed; or (c) unfit to be tried and to have done the act charged against him in respect of the offence.

• • • • •

Sentencing of those offending against vulnerable people

CPS notes say this, about culpability and harm in the sphere of offences toward impaired victims:

• The maximum penalty for non-consensual offences involving victims with a mental disorder is high, indicating the relative seriousness of such offending behaviour. The nature of the sexual activity and the degree of vulnerability of the victim will be the main determinants of the seriousness of an offence in these categories. The fact that the victim has a mental disorder impeding choice should always aggravate an offence, bearing in mind that it will have been proven that the offender knew, or could reasonably have been expected to know, that the victim had a mental disorder impeding choice. The starting points for sentencing for offences involving victims with a mental disorder impeding choice should be higher than in comparable cases where the victim has no such disability. The planning of an offence indicates a higher level of culpability than an opportunistic or impulsive offence. The care worker offences are primarily designed to be charged where victims have the capacity to choose and where there is no clear evidence of inducement, threat or deception. The maximum penalties, therefore, are lower than those arising from the other two groups of 'mental disorder' offences and it follows that starting points for sentencing should be proportionately lower. The maximum penalties, however, are more significant than those for the range of abuse of trust offences, in recognition of the fact that these offences are designed to protect a particularly vulnerable group of victims, and this has been taken into account in the guideline. The period of time during which sexual activity has taken place will be relevant in determining the seriousness of an offender's behaviour but could, depending on the particular circumstances, be considered as either an aggravating or a mitigating factor. The fact that an offender has repeatedly involved a victim in exploitative behaviour over a period of time will normally be an aggravating feature for sentencing purposes. However, in cases involving ostensibly consensual sexual activity with a person over the age of consent who has a low-level mental disorder that does not impair his or her ability to choose, evidence of a long-term relationship between the parties may indicate the existence of genuine feelings of love and affection that deserve to be treated as a mitigating factor for sentencing. As with the abuse of trust offences, each case must be carefully considered on its facts.

The sentences for public protection must be considered in all cases. They are designed to ensure that sexual offenders are not released into the community if they present a significant risk of serious harm.

• • • • • • •

Stopping vulnerable people committing crimes and civil assaults – what is the legal position?

If a person lacks capacity to engage in sexual activity, then they must be protected from sex and others who might like to explore sexual activities with them, because sex involves touching, and touching without consent is a trespass as well as a sex offence.

It is not part of the question of capacity to engage in sexual activities that the ‘doer’ understands that another person must consent and that sex with people under 16 is wrong. Ie you can have capacity to have sex, even if you aren’t able to discern when it’s legal or illegal. If a person lacks capacity to know that they were committing a crime they could not be criminalised for it - but other people would or could suffer and it is still an assault in civil law terms; Care providers, and assessment staff may well owe a duty of care to other service users, or to the public, in relation to the management of incapacitated people whose behaviour is potentially criminal.

It is acceptable at common law to prevent one person from assaulting another, even if it means restraining the person attempting the touching.

It is not done under the MCA, unless you want to say that you are restraining the ‘aggressor’ to prevent that person causing harm to themselves, by virtue of what their unrestrained conduct would bring down upon them, and for that, you need to believe that they are lacking capacity to understand the issue in question: ie whether they other person is consenting, or has a disorder impeding choice.

You can deprive a person of their liberty, briefly, under s4B of the MCA, in order to do a vital act – without a court order. And that could mean, stopping them from perpetrating the conduct that would then have to be at least investigated as a sex offence.

• • • • • • • • •

The legal framework for service provision in relation to a person’s sexual development or therapeutic support regarding their outcomes in an era of personalisation

To spend public money on an activity that is a social service, it has to come within the wording of one of the social care statutes. It’s not practical assistance in the home, for instance, to give someone sex education. But in the National Assistance Act, s29 there is a provision about giving people instruction to overcome the effect of their disability. So, as long as it educational, and up-skilling, it is legal to assess a need for it and to provide it, under statute. Dating support for people with impairments is well established – chaperoning and helping into a social life, as part of the facilitation of leisure activities and recreation. For things that councils are too embarrassed to commission or quality assure, but genuinely accept that there’s a need for – then so long as it isn’t illegal – and paying or taking money for sex is not illegal, in and of itself between consenting adults, even if it’s organised by a care worker acting as the buyer’s agent, direct payments provide a mechanism for doing this. How could it be otherwise when we have gone on for years about outcomes based assessment?  There is plenty of psychological support and counselling out there about Sexuality and boundaries, sexual orientation, the whys and wherefores of contraception … The case law in the Court of Protection often results in an interim order which says that the person currently has no capacity to consent to sexual activity or to understand whether another person is consenting but that it would be in his or her best interests to be taught one to one about these things, because it is agreed that they have potential to learn.

Anonymity for defendants and suspects

The question of anonymity for suspects in sex abuse or rape cases sharply divides opinion. In 1976, rape defendants were granted anonymity by the government, but 12 years later that protection was removed.

In 2006, the Liberal Democrats voted for anonymity at their conference and in 2010 the issue turned up again in the coalition agreement, but a pledge to introduce anonymity for rape suspects in England and Wales until conviction was dropped when ministers said there was not enough evidence to justify a change in the law.

The primary argument against anonymity of suspects is that publicity of a person's name often prompts further victims of an offender or witnesses to an offence to come forward.

But as Mr Le Vell attempts to get his life back on track, including a probable return to his on-screen role in the ITV soap, those who have been through similar situations know just how difficult that will be.

Christine Hamilton says she and her husband have just about shaken off the stigma from the false allegations. "It's outrageous that we should know who the accused is but not the accuser, who the jury obviously think is a serial liar." Solicitor Nick Freeman agrees that even after someone has been cleared, there are always some left thinking "there's no smoke without fire".

"It had a devastating effect on a charming young man whose career has taken a completely different path. It will remain with him for the rest of his years," he says.

He thinks anonymity should be granted to both defendant and complainant in cases of alleged sexual offences, but with the provision for an application to be made to a judge if the suspect is thought to be

a serial offender or there is a hope other victims or witnesses might come forward.

Stephen Cooper, who was wrongly accused of sexual offences 25 years ago and now runs website falselyaccused.co.uk, backs anonymity for defendants until the point of conviction.

The effects of being publicly named are "colossal", he says, adding that Mr Le Vell "lived two years of absolute hell" due to the publicity of his case.

"The minute someone switches on the television and sees him, they're going to make comments; comments have been made on Twitter and Facebook" he says.

Confidentiality of alleged victims, vs publicity for alleged perpetrators in relation to criminal charges

The Association of Chief Police Officers (ACPO) have called for anonymity to be maintained when people are arrested in order to protect those who later turn out to be innocent, from reputational damage.

The police do not usually identify someone who they have arrested. Rather they give general details of an arrest “which are designed to be informative but not to identify – for example ‘a 27 year old Brighton man’”. If, however, the media discover the name and seek confirmation some forces give this, others do not but may indicate if the name is incorrect (para 4.4). If the person is charged the criminal process begins and the name and age of the person charged is then released.

The practice already varies widely from force to force with the result that some individuals are named in the press at the arrest stage while others remain anonymous. Most, but not all, of the 59-plus journalists arrested in the various police inquiries stemming from the hacking scandal have been named.

The Mail reported that 14 out of 43 forces “are keeping secret the names of suspects even after they have been charged”. It names the forces that have introduced "arbitrary bans" as those that serve the following areas: Cambridge-shire, Cleveland, Derbyshire, Dorset, Dyfed-Powys, Essex, Gwent, Humberside, Northamptonshire, North Wales, South Yorkshire, Staffordshire, West Mercia and West Yorkshire.

At best it encourages a “media guessing game”. At worst, it encourages police corruption. In high profile cases it is clear encouragement to police officers to make wrongful or corrupt disclosures of the identities of arrested suspects to the media. A number of such cases are presently being investigated.

The other perspective

'Failing victims' Rape charity Women Against Rape says Mrs Hamilton is dealing in the myth that lots of women make up rape allegations. Its spokeswoman, Alex Brew, points to comments from Keir Starmer, the director of public prosecutions, who said in March that it was a "misplaced belief" that false accusations of rape are commonplace. She is firmly against granting anonymity to rape suspects, and says she has the police and all the mainstream political parties on her side. It would, she argues, be the end of open justice and it is, in fact, the rape victim who is being failed by the justice system. "The system is stacked up against them from the very start of the investigation and in court as well," she says.

While a growing number of rape victims are coming forward, she is concerned that investigations are being dropped and cases closed before all of the evidence has been gathered. She also argues that giving only rape defendants anonymity marks rape out as being different from other crimes, when it is no more stigmatised than murder or terrorism.

But Mr Freeman disagrees with that point. "Murder does not carry the same degree of social revulsion and stigma as rape. When you hear about a murder, you feel sympathy, whereas you react to a child rape on an emotional plane and feel revulsion." The Association of Chief Police Officers says the "welfare of rape victims needs to remain a priority". A spokeswoman adds: "Our main concern would be in regard to the impact any changes on anonymity would have on victims, in particular on their confidence to come forward and report rape or abuse.“ Publicity after Stuart Hall's arrest was a vital tool in encouraging many more of his victims to come forward. In fact, the great majority of the charges that Hall admitted were the result of women contacting the police following his arrest. "Thanks to press publicity… the true extent of his crimes was revealed. After the case made headlines, 10 more women came forward with allegations of assault.

None of them knew each other, and almost two decades separated the first and last attacks: unless his identity had been shared with the public, they would never have found out that they were not Hall's only victim.

If the public are not allowed to know an innocent man or woman has been seized, how are they supposed to come forward with any information which could clear the accused, such as a cast-iron

alibi?

• • • • • • The Leveson Report challenged police practice on four counts: ‘off the record’ briefings, recording contact with the media, appropriately reporting any personal relationship between a police officer and a journalist, and (although not a specific recommendation) providing information concerning arrests to the media. Not surprisingly, the police service is reviewing recommended practice to take account of these comments.

This not a “recommendation” by Lord Justice Leveson – it not mentioned in the list of 92 recommendations which he makes. But this is, however, a topic which is dealt with briefly in the body of the report. The context is a discussion of “media ride alongs” (that is, taking the media on police operations). Lord Justice Leveson quoted the Chair of the ACPO Communications Advisory Group as saying that individuals who have been arrested should not be identified by any police force, nor the media ( Leveson Report, Vol 2, Part G, para 2.36). He notes that a similar view was expressed by the Commissioner of the Metropolitan Police, Sir Bernard Hogan-Howe. Chief Constables were not “driven down this route” at all – it was their own idea.

"I think that it should be made abundantly clear," Leveson wrote, "that save in exceptional and clearly identified circumstances (for example, where there may be an immediate risk to the public), the names or identifying details of those who are arrested or suspected of a crime should not be released to the press nor the public." But the Law Commission disagree and proposed that suspects should generally be identified following a media request. "We consider that such policy should establish that, generally, the names of arrestees will be released," it said, "but that appropriate safeguards will need to be put in place to ensure that some names are withheld, for example, where it would lead to the unlawful identification of a complainant, where the arrestee is a youth or where an ongoing investigation may be hampered."

Legally, I think that disclosing a suspect’s name is part of the law of confidentiality and data protection and that the only justification for releasing this personal sensitive data, is policing purposes and the public interest – see schedule 3 of the Act. Ie for the prevention or detection of crime, and the capture and prosecution of offenders

Two senior judges, responding on behalf of the senior judiciary to the Law Commission's consultation, recently endorsed Trotter's and Leveson's preference for withholding the identification of those arrested save in exceptional circumstances.

• • • •

Publicity around the complainant

Section 1 of the Sexual Offences (Amendment) Act 1992 provides that complainants in sexual offence cases are entitled to lifelong anonymity in the media (although they can waive this right), and should not be identified in a written publication available to the public or a relevant programme for reception in England and Wales. Section 5 makes it an offence to breach these provisions. A prosecution may be brought only by, or with the consent of, the Attorney General.

Prosecutors should not assume that the media understands the provisions. For example, a local newspaper was prosecuted for naming the victims of sex trafficking (section 57, Sexual Offences Act 2003) despite being unaware that they should not name the women. If necessary, counsel should ask the judge to remind the media that someone cannot be identified. Where the complainant may be well known to the media, or attract interest because of family connections (e.g. ''sister of British Hollywood film star'') it may be necessary to ask the judge to address the media to avoid jigsaw identification, where different media outlets report different details which when put together identify the complainant. This is a particular risk in high profile cases in which the media will want to give as much detail as possible. There may also be a need to ensure the complainant avoids a ''press pack'' at the front of the court by entering at the back door. A press pack, particularly if there is a high profile defendant such as a Premiership footballer, is very intimidating. This sort of practical arrangement should be discussed with the police, Family Liaison Officer (FLO) and the Witness care Unit (WCU) to minimise the impact on the complainant.

• • • • • • • • •

Sex and people with LDs – they have to think harder about it than the rest of us, it sometimes seems!

X City Council v MB, NB and MAB in 2006, set out the test where the question is whether someone has the capacity to consent to sexual relations. That case was followed and updated in D Borough Council v AB involving a man who did not understand what sex was or what the consequences were, although he was having regular homosexual sex and it mattered to him a lot. A judge has more recently banned an autistic woman with an IQ of 64 from having sexual intercourse on the grounds she does not fully understand she could say no to such actions.

She now lives with three other people in a house provided by the local authority, and is not free to leave the building alone – she is under a DoLS order, the press says. She had a history of a very early and very deep degree of sexualisation.

Mr Justice Hedley made orders on 15th December 2011 declaring H’s incapacity in many respects, in particular in relation to her lack of capacity to consent to sexual relations. As such by the time he gave his reasons H had been placed in accommodation by the local authority involving 1:1 supervision. Mr Justice Hedley accepted that such arrangements followed on from and depended on the court’s conclusions about capacity to consent to sexual relations. Such “considerable incursions into personal autonomy and freedom’ were dependent upon a best interests judgment as to the needs of H with its legal foundation in finding of incapacity to consent.

The judge had to consider the “sensitive and difficult” issue of whether or not she was able to consent to sexual relations. He said she had to be protected from 'potentially exploitative and damaging' relations in the future, as she had already been involved in risky behaviour with people.

The judge concluded that H lacked capacity to consent to sex as “she does not understand the health implications” and “cannot deploy the information she has effectively into the decision-making process”. one could do no more than ask “does the person whose capacity is in question understand that they do have a choice and that they can refuse“. As sexual intercourse is required to consummate a marriage, he added that she also lacks capacity to marry. Under the Deprivation of Liberty Safeguards order to which she is subjected and the latest ruling, the restrictions “prevent H from engaging in sexual relations (which she would otherwise willingly do) because she does not have the capacity to consent and they will be potentially exploitative and damaging.” However the judge added that doctors believe H is capable of learning more about protection and health, and so

the matter can be kept under review.

And why should the State pay for supervision of sexuality? Best interests can be the reason, combined with human rights

• •

"The wishes and feelings of the incapacitated person will be an important element in determining what is, or is not, in his best interests. his wishes, Where he is actively opposed to a course of action, the benefits which it holds for him will have to be carefully weighed against the disadvantages of going against especially if force is required to do this." The nearer to the borderline the particular adult, even if she falls on the wrong side of the line, the more weight must in principle be attached to her wishes and feelings, about matters which vitally affect her because the greater the distress, the humiliation and indeed it may even be the anger she is likely to feel the better she is able to appreciate that others are taking on her behalf decisions – matters, it may be, as here, of an intensely private and personal nature.”

© Belinda Schwehr, 2013 38

Risks vs rewards, on that balance sheet

• • • “The fact is that all life involves risk, and the young, the elderly and the vulnerable, are exposed to additional risks and to risks they are less well equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always.

Physical health and safety can sometimes be bought at too high a price in happiness and emotional welfare.

The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good – in particular to achieve the vital good of the elderly or vulnerable person's happiness.

What good is it making someone safer if it merely makes them miserable?”

© Belinda Schwehr, 2013 39

The test for contraception, in an unequal relationship

http://www.bailii.org/cgi bin/markup.cgi?doc=/ew/cases/EWHC/COP/2010/1549.html&query=title+(+a+)+and+title+(+local+)+and+title+(+authority+)+and+contraception+and+"capacitated+but+vulnerable"&method=boolean • • • A Local Authority v A and A: the test for capacity should be so applied as to ascertain the woman's ability to understand and weigh up

the immediate medical issues surrounding contraceptive treatment

("the proximate medical issues"), including: (i) the reason for contraception and what it does (which includes the likelihood of pregnancy if it is not in use during sexual intercourse); (ii) the types available and how each is used; (iii) the advantages and disadvantages of each type; (iv) the possible side-effects of each and how they can be dealt with; (v) how easily each type can be changed; and (vi) the generally accepted effectiveness of each.

“In view of what I find to be the completely unequal dynamic in the relationship between Mr and Mrs A , I am satisfied that her decision not to continue taking contraception is not the product of her own free will. In this respect, I do accept the opinion of Dr K and fully agree with him that she is unable to weigh up the pros and cons of contraception because of the coercive

pressure under which she has been placed both intentionally and unconsciously by Mr A .

That is not something for which Mr A should feel himself 'blamed'. It is a product of a number of factors, including their respective personalities and learning disabilities; Mrs A 's dependence on him and fear of rejection; her suggestibility and wish to please him; his lack of insight as to the true extent of her difficulties; his rigid views about their status as husband and wife; his own wish to start a family, which is to be fully respected; and the fact that he has never yet felt included the decision.

For these reasons, I am in no doubt that Mrs A presently lacks capacity to take a decision for herself about contraception.”

© Belinda Schwehr, 2013 40

• • • • •

What to do, then?

The Local Authority's original application was for force and restraint to be authorised, if necessary, so that contraception could be urgently administered under local or general anaesthetic. However, this was not wholeheartedly supported by Miss C, who is in the unhappy position of having to figure out how this would actually be done in practice, faced by an unwilling and very oppositional Mr and Mrs A. They were both adamant in the witness-box that they would not cooperate with anything involving coercion. In her statement, Miss C said "… Mrs A cannot be forced and manhandled to an appointment: if the Court orders that she should be made to receive contraceptive treatment, then I would imagine there would need to be Police involvement." In her oral evidence, she agreed that she would not be comfortable with Mrs A being physically removed from the family home and taken to have contraception under restraint and anaesthesia . She agreed with me that it is essentially a horrendous prospect. Dr K said likewise that it would be 'a very traumatic experience' for Mrs A. The couple have already demonstrated a 'drawbridge-mentality' in respect of their home, as shown by Dr T and Miss C's visit in November 2009 (paragraph 32 above). In such a sensitive area, it is difficult if not impossible to envisage any acceptable way forward on these particular facts, other than by an attempt to achieve a capacitated decision from Mrs A, through 'ability appropriate' help and discussion without undue contrary pressure from Mr A. I emphasise that this is not one of those cases where there are felt to be risks to physical or mental health through pregnancy, childbirth, or the removal of a child. There is nothing before me to suggest that Mrs A suffered thus when she had her two children. If she had, then different factors and a different balance of proportionality would be under consideration. As it is, the issue is one of an essentially elective medical procedure, based on the judgment of those closely involved in the case

that it would be 'better' or 'kinder' if Mr and Mrs A did not have a child,

so as to spare them possible heartache if history were to repeat itself. © Belinda Schwehr, 2013 41

• • • • •

When in doubt, do nothing

“It is obvious on the facts of this case, that any step towards long-term court imposed contraception by way of physical coercion, with its affinity to enforced sterilisation and shades of social engineering, would raise profound questions about state intervention in private and family life.

Whilst the issue of the use of force has not been argued out at this hearing I cannot, on these facts, presently see how it could be acceptable.

Following my views expressed along these lines during the hearing, the Local Authority has so formulated its claim that for the moment anyway I am only asked to declare that it would be in the interim best interests of Mrs A to have contraception, if she consents. Mr O'Brien describes such an order as 'meaningless' because if Mrs A consents, no order is required; and if she does not, the order achieves nothing.

I need to hark back here to what I said in paragraph 65 above. It is accepted by the Local Authority, that if Mrs A became pregnant, there would be a pre-birth assessment of her and Mr A, and that (whilst it may be possible to speculate) it is impossible to say now what would emerge. It might therefore be concluded that they could with much support bring up a child, or perhaps that a child might be able to be kept within the extended family. Striking a balance of advantage and disadvantage, I do not see that any order at all is justified at this point about contraception. Such an order could only be made on the basis of a gut-feeling that it would be 'kinder' to Mr and Mrs A if Mrs A were to use it, which is not in my judgment an acceptable approach. Even if there were any point in the order sought (and I agree with Mr O'Brien that in practice there is not) I certainly do not think the court should intervene at a stage when Mr A has not yet been included in any ability-appropriate discussion or help on the contraception issue; when Mr and Mrs A have not yet had any therapeutic input as a couple about it (as recommended by Dr K), nor about their relationship generally; and when they have not yet had the chance to be helped to understand this judgment. I do not propose therefore to make any order about Mrs A's 'best interests' at this stage. I f she were to become pregnant, so be it: matters would take their course in the way I have described, with a pre-birth assessment of Mr and Mrs A's joint parenting abilities and the Local Authority taking such steps on the strength of it as appeared appropriate.” © Belinda Schwehr, 2013 42

• • •

An injunction against the man?

“It is established on the authorities that, notwithstanding the 2005 Act, the inherent jurisdiction is alive and well in circumstances where an individual, even if not incapacitated, is "… either under constraint, or subject to coercion or undue influence, or for some other reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent" per Munby J in A Local Authority v MA NA and SA 2005 EWHC 2942 (Fam) have found Mrs A to be presently incapacitated as regards contraception) the court has a wide inherent jurisdiction at paragraph 77. Where such circumstances pertain, as I have held they do here (in fact, I

to prevent conduct by the dominant party which coerces or unduly influences the vulnerable party from making free decisions.

The purpose, in respect of a capacitated but vulnerable adult, is to create a situation where he or she can receive outside help free of coercion, to enable him or her to weigh things up and decide freely what he or she wishes to do. In respect of an incapacitated adult, I consider the same should apply, except that the aim of providing him or her with relief from the coercion is first to gain capacity and, if achieved, then to enable him or her to reach a free decision. Mr A expressed his willingness in the witness-box to allow Mrs A to have free contact with those professionals who have the skills to advise her in an ability-appropriate way about contraceptive issues, provided he is not excluded but involved as well, either concurrently or separately. In her closing submissions Miss Mian confirmed his continued willingness to comply with this assurance. Both Mr and Mrs A are very much to be encouraged to engage in this process. I do not therefore consider any injunction against Mr A is presently necessary to oblige him to permit Mrs A to attend meetings and so forth. It might actually be unhelpful to leave him with a sense that there is continuing 'unnecessary' outside interference. It seems to me better, in a spirit of co-operation in trying to enable Mrs A to gain contraception capacity, to rely on Mr A to honour his assurances given to the court. That, in the first instance, is what I propose to do.” © Belinda Schwehr, 2013 43

• • • •

Court of Protection sanctions sterilisation of man with learning disabilities for non-therapeutic reasons – August 2013

In NHS Trust v DE, [2013] EWHC 2562, an NHS Trust applied for a raft of declarations relating to DE.

DE was aged 37, had an IQ of 40 and a mental age of 6 to 9 years. He had, with the assistance of dedicated parents, achieved a level of independence which would not have been expected of someone with his profound difficulties. He had also entered into a long-standing and loving relationship with a woman, PQ, who herself had a learning disability. Such a long standing relationship was, in the view of the consultant psychiatrist instructed, rare for a person with DE's IQ and extremely important to him – ‘precious’ was the word used. However, he had been assessed as lacking the capacity either to consent to sexual intercourse or to use contraception.

In 2009 PQ became pregnant by DE and subsequently gave birth to a child, XY. Eventually a special guardianship order was made in favour of XY's maternal grandparents (with whom PQ herself still lived).

The emergence of the fact that PQ and DE's relationship had become a sexual one (in circumstances where DE was assessed as lacking capacity to consent to sexual relations) led to a number of protective measures being put in place for DE and in due course PQ separated from DE. He lost interest in life, and

skills that had taken years to acquire. The deterioration in his quality of life was marked.

What were the wishes and feelings of the person in question?

• • •

By March 2013 DE and PQ had resumed their relationship and in July 2013 DE was assessed by the consultant psychiatrist as having capacity to consent to sexual relations. DE's wishes and feelings were in favour of remaining living with his parents and not having any more babies. He had expressed different views on different occasions about a vasectomy. DE's clear wish was not to have any more children. DE's parents formed the view that he should have a vasectomy, a view which came to be supported by the

local authority. As the case approached a final hearing, views changed about his potential capacity to understand what it meant to have sexual relations…

Why did it go to court then?

Because Practice Directions say that all non therapeutic medical interventions on incapax people should ... Nb, that has never been logical since the MCA was brought in, since best interests is not just about medical benefit...and the principle is that the decision maker can just crack on, if there is no dispute, if they have done proper best interests consultation first….

And because at first, the urologist said that there was a significant risk of pain, which outweighed any advantages!

And because the Official Solicitor also started out with the stance that it was not in the man’s best interests to go through the operation… The NHS Trust applied for and obtained declarations that: a) DE did not have capacity to make a decision on whether or not to undergo a vasectomy and to consent to this procedure; b) That it was lawful and in DE's best interests that he should undergo a vasectomy; c) That it was lawful for the NHS Trust to take any steps which were medically advised by the treating clinicians at the trust responsible for DE's care to undertake this procedure which may include the use of a general anaesthetic and all such steps as may be necessary to arrange and undertake the procedure including general anaesthesia.

• • • •

The court’s view

King J summarised the applicable principles in ss1(5) and 4 of the Mental Capacity Act 2005 and the case law on how they are to be applied. She also conducted a review of the applicable European case law on Article 8 ECHR, as well as Article 23 of the United Nations Convention on the rights of Persons with Disabilities (UNCRPD).

She held that there was no one particular aspect of Article 8 which held precedence over any other. She also held, in line with the dicta of Davies LJ in K v LBX [2012] EWCA Civ 79 that proper consideration can be given to any Article 8 points which arise in the context of the section 4 Best Interests appraisal. Applying the principles suggested by Munby J (as he then was) in ITW v Z [2009] EWHC 2525 (Fam) on the treatment of wishes and feelings of incapacitated adults, Eleanor King J stated that these views had to be treated with caution in light of his inability to understand and weigh up the factors for and against it.

King J held that the evidence unequivocally pointed to an improvement in the quality of DE's life in the event that he had a vasectomy. Weighing up all of the

factors in the case, and commenting that each case would be fact-specific, she found it to be overwhelmingly in DE's best interests to undergo a vasectomy. The Court therefore made the declarations sought by the NHS Trust.

• • • • • • The recent abortion case – another example of capacity being the determinant A young woman whose learning difficulties place her in the bottom one per cent of the population for intelligence has the capacity to decide whether to continue a pregnancy, the High Court ruled .

She suffers from sickle cell disease and had a series of strokes when she was young, which left her mentally impaired and for which her family won damages from a hospital for negligence. The judge declared that the woman, now 18 weeks’ pregnant, was capable of making the decision after concerns were raised that the Court of Protection should intervene on her behalf. Medics said she does not have the ability to make the decision herself and have described the need for an abortion as 'urgent'.

Mr Justice Hedley said that the decision was not one for him if she had capacity: even if the pregnant woman did not have the capacity to care for the baby, in future, society does.

The judge said it was very important to bear in mind that even if people with severe learning difficulties do not have the mental capacity to take part in legal proceedings, they 'may very well retain the capacity to make deeply personal decisions about how

they conduct their lives'.

The judge said it was now also the position of all parties and all witnesses that she had sufficient capacity, and, “that being so, the court of protection has no jurisdiction to engage in an assessment of her best interests”.

Compensation for historical and more recent criminal actions

• • • Until recently, as a consequence of a House of Lords decision in a 1993 case, the law distinguished between intentionally caused injury, for which the limitation period was considered to be six years, and negligently caused injury, for which the limitation period is an extendable period of three years. People who were victims of abuse when they were children, but who did not bring proceedings against their alleged abusers until they were much older, could find that the rules resulted in their claims being time-barred. This situation was criticised by many. However, in a landmark ruling in January 2008, (Hoare) the House of Lords held that its own earlier decision was wrong and that the limitation period for intentionally caused injury (including sexual abuse cases) should also be an extendable period of three years. The three year period only starts to run when one is an adult anyway. If one was impaired, or traumatised, one would get longer, in the ordinary course of events. You have to have realised it was a wrong done to you, in the first place.

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Why would the limitation period be extended?

This means that, depending on the circumstances, a claim for damages for personal injuries caused by a sexual assault now generally has a limitation period of three years from the date when the victim first considers the injury sufficiently serious to justify proceedings, but judges have discretion to extend that period if

thought equitable.

The House of Lords also considered the “date of knowledge” provision in section 14 and held that the test was whether a reasonable person with the claimant’s knowledge would have considered the injury sufficiently serious to start legal proceedings. If the claimant had any personal characteristics which might prevent him from acting as a reasonable person would, these could be taken into account by the judge when deciding whether to exercise discretion to extend the limitation period. There have been a number of recent articles on the issue, particularly following allegations of sexual abuse against former broadcaster Jimmy Savile.18 The case of Savile was complicated by the fact that he had not been convicted of a criminal offence at the time of his death and that it was thought that many of his assets had been donated to charity. One commentator, writing in the Solicitors Journal, observed that: Normally in a case involving the conviction of an abuser, the court will exercise its discretion under section 33 of the Limitation Act 1980 to disapply limitation. However it is not certain how a court might react to a number of separate claims, brought against a deceased tortfeasor where there may be nothing more in the way of evidence than the victim’s statement and videotapes of Savile’s shows.19

Thank you so much for attending!

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Belinda can be contacted on [email protected]

, or Tel 01252 725 890 or 07974 399361.

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My website, www.careandhealthlaw.com

, offers free (and some charged-for) topic overviews about health and social care law; and to free ‘hot news’ emails when an important case has been decided by the courts.

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For traditional face-to-face training, and regional events, contact Debbie Tomlinson, my reservations manager, on 01252 494098 or by email on [email protected]

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