R v C

The appeal concerned the meaning and scope of the words "unable to communicate" in section 30(2)(b) of the Sexual Offences Act 2003 and the related meaning of "unable to refuse" in section 30(1). The House held that:

• the inability to refuse under s 30(2)(a) may arise for "any other reason" related to a mental disorder and therefore can include an inability to use and weigh information, compulsions or irrational fears arising from the mental disorder;
• capacity to choose whether to agree to a particular sexual act may be act- or occasion-specific and therefore can be person- or situation-specific; and
• the words "unable to communicate" in s 30(2)(b) are not limited to a purely physical inability to communicate but include an inability to communicate caused by or related to a mental disorder.

Applying these principles to the facts, the House concluded the jury were entitled to find the complainant lacked the capacity to refuse or to communicate a choice and restored the conviction.

Background and facts:

• The Crown appealed against a decision of the Court of Appeal (Criminal Division) which had set aside the respondent’s conviction under section 30 of the Sexual Offences Act 2003. The respondent had been convicted at first instance of intentionally penetrating the complainant’s mouth with his penis where the complainant was said to have been unable to refuse because of or for a reason related to a mental disorder.
• The complainant was a 28 year old woman with schizo-affective disorder, an emotionally unstable personality disorder, an IQ under 75 and a recent relapse. She had been anxious, agitated and fearful on the day in question; after meeting the defendant she was given drugs and, in a frightened state, submitted to a sexual act she described as being unable to resist because she feared for her life.

Procedural history:

• At trial the judge directed the jury that incapacity could arise from an irrational fear or confusion of mind and could include inability to communicate; the jury convicted. The Court of Appeal ([2008] EWCA Crim 1155) quashed the conviction, holding that incapacity could not be person- or situation-specific, that irrational fear could not be equated with lack of capacity to choose, and that s 30(2)(b) required a physical inability to communicate.
• The Court certified three questions for the House of Lords concerning (a) whether lack of capacity to choose can be person- or situation-specific, (b) whether irrational fear can amount to lack of capacity to choose, and (c) whether s 30(2)(b) requires a physical inability to communicate.

Issues framed by the court:

1. Whether the Court of Appeal had unduly narrowed s 30(1) of the Sexual Offences Act 2003 by ruling that lack of capacity to choose cannot be person- or situation-specific;
2. Whether an irrational fear that prevents the exercise of choice can be equated with lack of capacity to choose under s 30(2)(a) as including "any other reason";
3. Whether s 30(2)(b) requires a physical inability to communicate or includes an inability to communicate caused by a mental disorder.

Court’s reasoning and conclusion:

• The House adopted a functional approach to capacity reflected in earlier case law and in the policy underlying the 2003 Act: capacity must be assessed with respect to the particular act and the material occasion. The statutory phrase "for any other reason" in s 30(2)(a) is broad enough to encompass compulsions, delusions, phobias and other mental-disorder-related impediments to weighing information and making a choice.
• Capacity may therefore be act- and occasion-specific (so a person might be capable of choosing in some sexual situations but not others) and an irrational fear can, depending on its effect on the person’s ability to use and weigh information, amount to lack of capacity to choose.
• Section 30(2)(b) is concerned with inability to communicate caused by or connected with a mental disorder and is not limited to a purely physical inability to communicate.
• Applying these principles to the evidence, the House concluded the jury could properly find the complainant lacked the capacity to refuse or to communicate a choice and therefore restored the conviction.

Nature of the appeal: criminal appeal by the Crown against the Court of Appeal’s quashing of a conviction under s 30 of the Sexual Offences Act 2003. Relief sought: restoration of the conviction.

Appeal allowed. The House held that (i) lack of capacity under s 30(2)(a) may be person- or situation-specific and may arise "for any other reason" related to a mental disorder (including irrational fear or inability to weigh information), and (ii) s 30(2)(b) covers inability to communicate caused by or related to a mental disorder and is not confined to a physical inability to communicate. On the facts the jury were entitled to find the complainant lacked capacity to refuse or to communicate a choice and the conviction was restored.

Conviction at trial (not separately cited). Appeal to the Court of Appeal (Criminal Division) where the conviction was set aside: [2008] EWCA Crim 1155. Crown appealed to the House of Lords which allowed the appeal: [2009] UKHL 42.