Hulme v Director of Public Prosecutions

For the purposes of Sexual Offences Act 2003, section 30, inability to refuse sexual touching includes inability effectively to communicate a choice, even where the person understands the nature of sexual relations. The court may infer that inability from the complainant’s evidence and the surrounding circumstances. Expert evidence is not essential. Incomplete legal advice to magistrates does not invalidate a conviction where their findings are legally sound and supported by evidence. On a case stated, adequately reasoned later findings may also make it unnecessary to determine whether the original reasons were sufficient.

The claimant appealed by way of case stated from his conviction by Flintshire Justices at Mold Magistrates’ Court on 21 September 2005. He had been convicted of sexual activity with a person with a mental disorder impeding choice, contrary to section 30 of the Sexual Offences Act 2003.

The complainant had cerebral palsy and a mental age substantially below her chronological age. The claimant accepted some non-sexual contact but denied the sexual touching found by the justices. The appeal alleged that there was no evidence that the complainant was unable to refuse because of, or for a reason related to, her mental disorder, and that the justices’ reasons were inadequate. The central issue was whether the evidence could support a finding that she was unable effectively to communicate her choice.

1. Appeal dismissed. The court answered yes to the first question stated by the magistrates: there was evidence on which they could conclude that the complainant was unable to refuse sexual touching. The court declined to answer whether the reasons given in court were sufficient, because that issue no longer mattered.
2. Section 30 of the Sexual Offences Act 2003 requires intentional sexual touching, knowledge or reasonable expectation of knowledge of the relevant mental disorder, and inability to refuse because of, or for a reason related to, that disorder. A person is unable to refuse either where they lack capacity to choose whether to agree or where they cannot communicate that choice to the other person.
3. The justices’ reasons were read as finding that, although the complainant did not want the touching to continue, she could not effectively communicate her wishes in the circumstances. Her evidence that she did not know what to do or say when the touching occurred, although she was upset, was capable of supporting that conclusion. Her evidence that she touched the appellant’s penis because he made her do so, although she did not want to, supported the same inference.
4. The justices were entitled to rely on the evidence of the witness who intervened and took the complainant to her parents. Expert evidence was not required. The findings were not perverse and were supported by evidence from which the causal connection with the complainant’s mental disorder could properly be inferred.
5. The legal adviser’s directions concerned the capacity limb and did not address fully the communication limb. That incompleteness was not itself a ground of appeal because the justices’ actual findings were sound in law and supported by the evidence.
6. Although the reasons initially recorded by the justices were short, the reasons stated in the case provided more than adequate support for the conviction.

• High Court (Administrative Court): appeal by way of case stated dismissed; the conviction by Flintshire Justices was upheld.
• Mold Magistrates’ Court: on 21 September 2005, Flintshire Justices convicted the claimant of an offence under section 30 of the Sexual Offences Act 2003.