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The Court of Protection and Criminal Law

30 Oct 2021 by Anogika Souresh

Re C [2021] EWCA Civ 1527

This is an appeal from Hayden J’s judgment in Re C [2021] EWCOP 25

The attraction was authorized on the foundation that treatment staff making arrangements to protected the expert services of a intercourse worker for C would area the treatment employees in peril of committing an offence opposite to portion 39 of the Sexual Offences Act 2003 (“SOA”).

Track record

The difficulty was regardless of whether treatment employees would dedicate a criminal offence beneath part 39 of the SOA if they produced sensible preparations for C to take a look at a sex employee. C experienced the capability to consent to sexual relations but not to make the arrangements. 

Area 39(1) SOA states that: 

A human being (A) commits an offence if— 

(a) he intentionally causes or incites one more man or woman (B) to interact in an action, 

(b) the action is sexual, 

(c) B has a psychological ailment, 

(d) A knows or could reasonably be anticipated to know that B has a psychological disorder, and 

(e) A is included in B’s care in a way that falls within portion 42.

[Emphasis Added]

The central concern was whether the treatment employees would “cause” C to interact in sexual activity by creating the arrangements. Hayden J concluded that they would not result in C to interact in sexual activity. 

The Secretary of Condition for Justice appealed on a few grounds: 

  1. The Judge misinterpreted segment 39 SOA 
  2. To sanction the use of sexual intercourse is opposite to community coverage (this floor of charm was elevated by way of an opposed modification) 
  3. The Choose erred in concluding that Article content 8 and 14 of the European Convention on Human Legal rights (“ECHR”) essential his favoured interpretation. 

The Judgment

Floor 1

Hayden J concluded that:

The central philosophy of the SOA is to protect people in interactions predicated on have confidence in exactly where the relationship alone elevates vulnerability. This essentially progressive laws has been very careful, in my judgement, to prevent constricting the existence alternatives of those people with mastering disabilities or mental disorders […] The legislative objective is to criminalise a severe breach of believe in […] They are intending to criminalise those in a place of authority and rely on whose actions are calculated to repress the autonomy of individuals with a psychological problem, in the sphere of sexual relations. Area 39 is structured to safeguard vulnerable older people from many others, not from on their own [89, 93].

Consequently, a treatment worker who has organized a sex worker really should not be subject to criminal sanctions as they experienced facilitated an physical exercise of personalized autonomy. 

The Courtroom of Appeal commenced, instead, by discovering the meaning of “causation”. It concludes that causation in the SOA ought to be study in accordance with its ordinary this means in the criminal legislation [43]. The carry out of the defendant requirements to be an operative induce of the prohibited exercise [42]. 

The Court docket of Appeal concludes that it was incorrect for Hayden J to restrict the ordinary meaning of the phrase “causes” [43]. 

It goes on to say that the “legislative procedure of the 2003 Act is to draw brilliant lines to lower the possibility of the abuse of these who are vulnerable and somewhere else to attract dazzling lines because it is vital for certainty” [44]. 

Further, the Court of Attraction compares area 39 SOA with other in the same way drafted sections of the SOA. It would be incongruous for “causes” to imply the very same factor in all but 1 part of the SOA. In individual, the Court of Attraction refers to section 17 SOA, which criminalises all those in a position of have faith in intentionally causing or inciting a little one to engage in sexual exercise. “Unless the phrase “causes” signifies different issues in sections 17 and 39 that line of defence would be open up to him on the judge’s interpretation. No argument was state-of-the-art to the outcome that the text “causes or incites” should necessarily mean distinctive matters in various destinations in Section 1 of the 2003 Act” [48].

For that reason, the Courtroom of Attractiveness concludes that the phrase “causes” really should be read in accordance with its standard meanings. 

Nonetheless, the Courtroom of Appeal goes on to say that:

By distinction treatment staff who arrange get hold of in between a mentally disordered particular person and husband or wife or lover conscious that sexual activity may well consider location would more naturally be generating the situations for that activity alternatively than resulting in it in a lawful perception [49].

Floor 2

Authorization to amend the grounds of attractiveness to consist of arguments about public plan was refused. 

Ground 3

It was argued that segment 39 SOA interferes with C’s private daily life below Short article 8 of the ECHR, as the scope of accomplishing his sexual desires is substantially lessened if his treatment staff are not able to make these arrangements. More, it was argued that there was an interference with Post 14 ECHR as: (1) C will be addressed in a different way from a individual with out a mental disability who can make their very own arrangements and (2) C suffers discrimination by motive of his mental disability by comparison with those devoid of. 

Even so, the Court of Appeal correctly factors out that: 

There is no sign of this kind of a optimistic obligation possessing been recognised by the Strasbourg Court, nor of that court having recognised that post 8 involves a favourable obligation on the point out to allow the acquire of sex with no concern of legal sanction […] It is far from shocking that no case of the Strasbourg Court has been cited to us that recognises a human correct to purchase the products and services of the prostitute or to be provided with these companies by the condition [53, 58].

As to the interference with Write-up 14 ECHR, the Courtroom of Enchantment states that the SOA throws a “general cloak of security all around a massive selection of vulnerable people” and consequently any discrimination signifies the harmony struck to reach this [64]. 


Drawing from Baker LJ’s example of a treatment worker “creating the circumstance” for sexual action somewhat than “causing” it, King LJ refers to other “benign situations” which may perhaps manifest. When any declaration below segment 15 of the Mental Potential Act 2005 will be performed on a scenario-by-situation foundation, this case does, nonetheless, have much-achieving implications.

Whilst the courtroom was not asked to consider any other conditions in which part 39 SOA would appear into effect, this is possible to be a consideration for treatment employees, deputies, and those functioning in the area of psychological potential.