GA, R. v

For sexual offences, the substantive assessment of capacity to consent is the same in civil and criminal jurisdictions. It is informed by the definition and guidance in the Mental Capacity Act 2005, but a criminal jury need not be directed in the statutory language used in Court of Protection proceedings.

Where incapacity to consent is alleged, the prosecution bears the burden of proving it beyond reasonable doubt, save in a prosecution under section 44 of that Act. If the jury is not sure that the complainant lacked capacity, it must assume capacity and decide consent and belief from the whole evidence. Expert evidence must be confined to relevant expertise on capacity and must not usurp the jury’s assessment of consent.

The appellant and complainant, both young adults with learning disabilities, were students at a special-needs school. Following a sexual encounter, the appellant was charged with rape and later indicted for sexual assault by touching.

After a finding of disability, a jury was empanelled under section 4A of the Criminal Procedure (Insanity) Act 1964 to determine whether he had done the alleged act, without determining mens rea. The jury found that he had done so and a supervision order was imposed.

The prosecution expert assessed the complainant’s capacity by reference to the Mental Capacity Act 2005. The appeal challenged the use of the civil standard of proof and the admission of the expert evidence. The central issue was the correct approach to a complainant’s capacity to consent in a criminal sexual-offence trial.

1. Appeal allowed. The jury’s finding under section 4A of the Criminal Procedure (Insanity) Act 1964 was unsafe. It was set aside and the supervision order was discharged.

2. The substantive test for capacity to consent to sexual relations should be the same in civil and criminal jurisdictions. The court approved the approach in IM v LM, AB and Liverpool City Council [2014] EWCA Civ 37. The definition and guidance in sections 2 and 3 of the Mental Capacity Act 2005 inform the assessment, although a jury need not receive directions in the precise statutory form used in capacity proceedings.

3. The similarity of the substantive test does not import the civil standard of proof into a prosecution under the Sexual Offences Act 2003. Section 74 makes capacity to make a choice part of consent. By section 1(2) of the Mental Capacity Act 2005, capacity is presumed. Accordingly, except in proceedings under section 44 of that Act, the prosecution must make the jury sure that the complainant lacked capacity. If it does not, the jury must assume capacity and determine consent, and any relevant belief in consent, from all the circumstances.

4. Expert evidence on capacity will ordinarily assist where that issue lies outside ordinary jury experience. It must be genuine expert evidence, relevant to capacity, and confined to that issue. The prosecution expert had exceeded that remit by expressing her own view on whether the complainant consented. Her evidence was not fit to assist the jury and did not reflect the applicable law.

5. The court also observed that charging decisions in cases involving possible incapacity should consider the range of offences in section 30 and following of the Sexual Offences Act 2003. That observation did not detract from the proper prosecution of exploitation of vulnerable people.

• Court of Appeal (Criminal Division) — allowed the appeal in [2014] EWCA Crim 299, set aside the jury’s finding and discharged the supervision order.
• Trial court — following a finding of disability, a jury under section 4A of the Criminal Procedure (Insanity) Act 1964 found that the appellant had committed the alleged act. A supervision order was imposed. The court and citation are not stated in the judgment.