R v C (Respondent) (On Appeal from the Court of Appeal (Criminal Division))

Under section 30 of the Sexual Offences Act 2003, a mental disorder may deprive a person of capacity to choose even where that person understands the nature and foreseeable consequences of the sexual act. Compulsion, delusion, irrational fear or another effect of the disorder may prevent an autonomous choice.

Capacity must be assessed in relation to the particular sexual act, person, time and circumstances. A person may have capacity in one situation but lack it in another. An inability to communicate under section 30(2)(b) need not be physical. It includes an inability caused by or related to a mental disorder.

The respondent was convicted under section 30 of the Sexual Offences Act 2003 of intentionally penetrating the complainant's mouth with his penis. The complainant had several mental disorders and was experiencing an acute deterioration in her condition. The trial judge directed the jury that irrational fear or confusion caused by her disorder could deprive her of capacity to choose, and that the disorder could prevent communication despite physical ability to speak.

The Court of Appeal allowed the respondent's appeal and quashed the conviction: [2008] EWCA Crim 1155; [2009] 1 Cr App R 211. It held that irrational fear could not be equated with incapacity, capacity could not be person-specific or situation-specific, and section 30(2)(b) required physical inability to communicate.

The Crown appealed. The certified questions asked whether each of those conclusions unduly restricted section 30.

1. Appeal allowed unanimously and conviction restored. Baroness Hale delivered the leading speech. Lord Hope, Lord Rodger, Lord Brown and Lord Mance agreed with her reasoning. Each certified question was answered affirmatively.

2. Per Baroness Hale, section 30(2)(a) of the Sexual Offences Act 2003 extends beyond an intellectual inability to understand the nature or foreseeable consequences of the touching. Its words “for any other reason” include circumstances in which a mental disorder prevents an autonomous choice despite sufficient understanding. Compulsion, delusion, phobia or irrational fear may have that effect. The question in each case is whether the disorder actually deprived the complainant of capacity.

3. Capacity is assessed in relation to the particular touching charged. Sexual choice is necessarily person-specific and situation-specific: it concerns this act, with this person, at this time and place. A person with a mental disorder may therefore be able to choose in one situation but unable to choose in another. This construction protects both aspects of sexual autonomy and is consistent with article 8 of the European Convention on Human Rights.

4. Per Baroness Hale and Lord Rodger, section 30(2)(b) is not confined to physical inability to communicate. Section 30(2) explains the inability to refuse required by section 30(1), which must arise because of or for a reason related to a mental disorder. The communication limb therefore encompasses an inability resulting from a disorder of the mind, including a learning difficulty that prevents speech.

5. The trial judge's directions permitted the jury to decide whether the complainant's irrational fear or confusion deprived her of capacity to choose or communicate. The evidence entitled the jury to reach that conclusion. The conviction was accordingly safe.

6. Baroness Hale observed that rape and the offences under sections 30 and 34 address distinct concepts and mental elements. Section 30 requires inability to refuse and knowledge, actual or constructive, that mental disorder is likely to produce that inability. Rape requires absence of consent and no reasonable belief in consent. Section 34 addresses agreement procured by inducement, threat or deception from a person known, actually or constructively, to have a mental disorder.

1. House of Lords: The Crown's appeal was allowed unanimously. The certified questions were answered affirmatively and the respondent's conviction was restored: [2009] UKHL 42.
2. Court of Appeal (Criminal Division): The respondent's conviction was quashed as unsafe because the trial directions were considered inadequate: [2008] EWCA Crim 1155; [2009] 1 Cr App R 211.
3. Crown Court: The respondent was convicted under section 30 of the Sexual Offences Act 2003.