GA, R. v

LADY JUSTICE MACUR: This appeal is brought with the leave of the full court. The two grounds of appeal are that the lower court was wrong (i) to adjudge the complainant’s mental capacity to consent to sexual conduct in accordance with the provisions of the Mental Capacity Act 2005 as opposed to the Sexual Offences Act 2003, as a consequence of which the wrong standard of proof was applied; and (ii), to admit the evidence of the Prosecution expert witness who had exceeded previous understanding of the law as interpreted in the context of the Mental Capacity Act and, consequently, who’s definition of capacity was so vague and uncertain as to prejudice the jury’s consideration of the facts.

The respondents concede the appeal in terms. They acknowledge that there is a danger that this young appellant was found to have committed the alleged act of sexual assault on the civil standard of proof, namely the balance of probabilities. We consider this to be an entirely realistic and proper concession.

Nevertheless, guidance is sought by the both those representing the appellant and respondent as to the assessment of a complainant’s mental capacity in a criminal trial when the offence alleged to have been committed involves proof of lack of their consent. In this case it did. The appellant was initially charged with rape, before being indicted of sexual assault by touching.

A section 3 sexual assault requires that a Defendant is proved to had touched a complainant intentionally and that such touching was sexual, without the complainant’s consent and that the appellant did not reasonably believe that the complainant consented.

The facts of the matter are these. The appellant is 22 years of age; he was 20 when the incident took place which led to charge. The complainant was of the same age and they were both students at a special needs school in Hertfordshire. Both had learning disabilities. The appellant had an IQ of 51, and is classified as having a moderate learning disability. He is deaf. The complainant was diagnosed as having a mild learning disability.

The appellant and complainant had been friends for some time when they were together on 15 January 2011 at the complainant's house watching television in the living room with the complainant's brother, girlfriend and another. Shortly after, the appellant and the complainant went to the complainant's bedroom where they watched a movie, "Matilda", together.

They were visited in the room by the complainant's brother's girlfriend who, as a witness in the case, noted that all seemed fine. However, there is no issue but that at some stage thereafter a sexual encounter occurred which at least involved the appellant removing the complainant's trousers and underwear by pushing them down her legs and removing his own, lying on top of her rubbing his penis against her vagina. He ejaculated onto the complainant's underwear and that appeared to be the end of the matter. Subsequently, the complainant was to say that she did not like it and had told him to stop.

When the appellant's father collected him later that evening, the complainant’s brother's girlfriend observed that the complainant seemed fine and cuddled the appellant as he left. No complaint was made during the course of that day.

The following day, the complainant mentioned to the brother's girlfriend that she had had sex with the appellant the previous day. When asked if she had said "yes" the complainant said that she did not want to do it and had said "no". The complainant's mother was informed and the police were contacted.

On 19 January, some four days after the incident in question, the complainant’s version of events was obtained and recorded in an ABE (achieving best evidence) interview.

The appellant attended at the police station by appointment. There was a written statement prepared, obviously with the assistance of a solicitor, in which he indicated that during the time they were together in the complainant's bedroom they were cuddling, that the complainant had told him that she was "horny" and that any touching had been consensual. He did not think his penis had gone into her vagina. That is where the evidence stood.

A report as to the complainant's ability to give evidence without an intermediary was commissioned but in fact was prepared to include opinion as to her capacity to consent to sexual relations. The expert concluded in her report that, in accordance with the definition of "mental incapacity" provided by sections 2 and 3 of the Mental Capacity Act 2005, the complainant did not have the capacity to consent to sexual relations. A further expert report was commissioned in response, necessarily so by those representing the defendant, and as a result of that report the court properly required that the experts meet and prepare a joint note of agreement and disagreement. At this stage it is unnecessary to refer further to that document, save that the appellant, by his counsel, Miss Wilding, criticises the inherent contradictions to be found within the agreed opinion of the two experts and the oral evidence given by the prosecution expert at ‘trial’ and summed up to the jury at some length.

Prior to trial, and perhaps unsurprisingly, there was a finding of disability made in relation to the defendant, and, in accordance with section 4A of the Criminal Procedure (Insanity) Act 1964, a jury was empanelled in order to make judgment as to whether or not the defendant had committed the act alleged; that is, the jury specifically would not be required to determine the mens rea of the defendant and would not consider whether the appellant (as he became)did or had reason to believe that the complainant was consenting to his sexual advances.

The jury found that he had committed the act alleged and, in accordance with that finding, the judge imposed a supervision order. The appeal followed. The matter came before the full court after refusal by the single judge, and as a result of the discussions therein, a transcript of which has been provided, it became clear that the Vice President required argument to be addressed upon what appeared to be a novel point of law: that is whether or not the trial judge had correctly directed the jury as to the burden and standard of proof applicable in the case of determining the capacity of the complainant to consent to the acts which subsequently the jury found to have occurred and which indeed the appellant had admitted.

We have taxed Miss Knight, prosecuting counsel, to explain the “public interest” said to be served in prosecuting this appellant in the obvious and particular circumstances of the case. The facts are previously recorded, including the relative disability of the appellant comparative to that of the complainant. The decision to charge him first with rape and then with sexual assault is astonishing. Miss Knight, with the benefit of hindsight, frankly acknowledges this. This appellant was a young man of good character, which fact should in our opinion have weighed heavily in the context of the facts as a whole in informing the appropriate course to be followed. But that is as an aside to the issues that we must decide.

The question of capacity to consent to sexual relations is recently dealt with in the decision of the Court of Appeal Civil Division in IM v LM, AB and Liverpool City Council [2014] EWCA Civ 37. This was a civil appeal from the Court of Protection involving an adjudication upon the capacity of LM to consent to future sexual relations.

The judgment traverses the many first instance decisions made in relation to the question of capacity to consent to sexual relations and then specifically considers the apparently different opinions of Lady Hale in R v C [2009] UKHL 42 and the now President of the Family Division who on more than one occasion has added to the jurisprudence in this area by incremental advice in relation to the question, both pre and post the enactment of the Mental Capacity Act 2005.

The judgment of the Court of Appeal recognises and adopts the principle of the obvious desirability that civil and criminal jurisdictions should adopt the same test for capacity to consent to sexual relations by reference to various first instance judgments, amongst others Re MM (Local Authority X v MM and KM) [2007] EWHC 2003.

We agree. The approach should be the same necessarily informed by the definition and guidance contained in sections 2 and 3 of the Mental Capacity Act 2005. That is not to say that a jury will need to be directed in strict accordance with the language used by and steps to be adopted in accordance with proceedings brought pursuant to the Mental Capacity Act 2005

That of course does not answer the issue in this appeal, namely who bears the burden and which standard of proof must be applied in criminal proceedings other than those brought pursuant to section 44 of the Mental Capacity Act 2005.

Section 2(4) of the Mental Capacity Act 2005 provides : "In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.” ( emphasis supplied)

Section 44 of the Mental Capacity Act 2005 creates the offence of ill treatment or neglect of those who lack capacity or whom the defendant reasonably believes to lack capacity.

In Hopkins [2011] EWCA Crim 1513, Pitchford LJ, giving the lead judgment of the court, made clear that the Act specifically required the determination of the issue of capacity to be assessed in accordance with the civil standard of proof, but this was not to change the criminal standard of proof of the offence and the manner in which it was committed. That is, he said, at paragraph 47:

The Sexual Offences Act 2003 does not explicitly define capacity nor refer to a definition of the same “within the meaning of this [Mental Capacity] Act” Section 74 of the Sexual Offences Act 2003 provides the interpretation of "consent":

The bracketed words reflect the provisions of sections 2(1) and 3(1) of the Mental Capacity Act, and lead us to determine that the difference in definition of capacity in the civil and criminal jurisprudence is a difference without distinction.

However, the similarity of definition does not , in our view, dictate the same standard of proof. We observe that the adjudications of the Court of Protection will look to the future in generality; the criminal law looks retrospectively to specific acts of the past.

The fact that capacity is lacking in relation to one area of decision making at the material time does not necessarily translate into another area or another time. The criminal court concerned with offences created by the Sexual Offences Act must adjudge, if in dispute, capacity to understand and consent to sexual relations. The weight to be given to the complainant’s understanding of the circumstances will therefore vary enormously as between a sexual encounter and consent to invasive medical treatment. This must be fully borne in mind not only by those ‘experts’ who venture away from the Court of Protection into the criminal courts but also the judges who must be careful to appraise the expertise and therefore competence of those called to give ‘expert’ evidence of competence before the jury. At this time there is no better source of reference than IM v LM, AB and Liverpool City Council.

The requirement that a complainant should understand the nature of the act of the sexual engagement involved will be a relatively simple issue to address. The question relating to the understanding of reasonable foreseeable consequences obviously should not become divorced from the actual decision-making process carried out in that regard on a daily basis by persons of full capacity. In the opinion of this court, adopting the opinion of the Court of Appeal Civil Division in IM, this process is "largely visceral rather than cerebral, and owes more to instinct and emotion rather than to analysis".

Section 1(2) of the Mental Capacity Act 2005 provides that “A person must be assumed to have capacity unless it is established that he lacks capacity”. When capacity to consent is in issue in criminal proceedings, the burden of proving incapacity falls upon the party asserting it and will inevitably be the prosecution. We consider that, other than in criminal proceedings pursuant to section 44 of the Mental Capacity Act, the prosecution must discharge that burden to the criminal standard of proof; that is, they must make the jury sure that the complainant did not have capacity to consent. If the jury cannot be sure that the relevant complainant lacks capacity, then they must be directed to assume that he or she does. The issue for them then will be an examination of all the facts and circumstances to determine whether or not the complainant consented to the act or acts in question and whether the alleged assailant knew they did not consent or did not believe that they did so or were unreasonable in their belief that there was consent.

In this particular case, expert evidence was led before the jury on the question of the complainant’s capacity. It appears to us that it will inevitably be the case, if capacity is an issue, that an expert will be called to provide evidence which would not otherwise be within the common experience of the jury. It is vitally important that such evidence is ‘expert’ , relevant and only deals with the matter in issue, namely capacity. Having read the transcript of the prosecution expert evidence in this case we regret to say that she exceeded her remit, particularly in articulating her own interpretation of the facts as to whether or not the complainant did consent. It is unfortunate that the witness was not adequately managed in the court process as a whole. Whatismore, it seems to us that the opinions expressed by the prosecution expert did not reflect the jurisprudence at the time.

Therefore, even if not conceded we would have allowed the appeal being certain that decided that the jury’s finding was unsafe on two grounds: (i) the judge adopted the wrong standard of proof in his directions to the jury in relation to the issue of capacity; and (ii) the expert evidence not fit for purpose to assist the jury to come to any conclusion at all as to the capacity of by the complainant to consent to sexual relations.

In leaving the particular issues raised in this appeal, it behoves us to say that ‘charging’ decisions in relation to the prosecution of offences concerning complainants where there is or may be an issue of capacity to consent, would benefit from a measured consideration of the full array of offences created by section 30, and following, of the Sexual Offences Act 2003 and which incorporate the full range of criminal sexual activity.

Finally, we would not wish our expressed and implicit disapprobation of the charging decision in this case to be seen as presenting any bar or obstacle to those cases which quite clearly have at their heart the intent to prosecute those who exploit the vulnerable and those of limited capacity.

The appeal was properly conceded. We allow the appeal. The finding made by the jury pursuant to section 4A of the 1964 Act will be set aside and the supervision order discharged.

Are there any further matters?

MISS WILDING: My Lady, I believe it is incumbent upon me to invite the defendant's costs order. It was raised on the last occasion and on that occasion it was said that it would need to be renewed upon determination today.

LADY JUSTICE MACUR: There has been a concession of the appeal made known at an early stage.

MISS WILDING: The concession was made known as a result of service of my skeleton argument on 10 January. The concession was made by my learned friend in her reply on the 17th.

LADY JUSTICE MACUR: Have you a schedule of costs?

MISS WILDING: No, I do not, my Lady. I can certainly arrange for that to be done. In the usual course of events it will involve a representation order, but because this was a finding and not a conviction I understand a different order has to be made by the court. It will simply amount to the preparation undertaken, the service of the advice and grounds of appeal and the skeleton argument.

LADY JUSTICE MACUR: I see.

What do you say about that, Miss Knight?

MISS KNIGHT: It is right to say that the appeal was not conceded until a skeleton in response was served on the 17th, so the Crown would not oppose that viewpoint.

LADY JUSTICE MACUR: Thank you very much.

MISS WILDING: I ought to add, in the note provided by the Registrar following the hearing before the Vice President on 28 November, it says that at paragraph 6 a defendant's costs order under section 16(9)(b) of the Prosecution of Offences Act was made, but certainly on that occasion I was informed I would need to renew it at the conclusion of the hearing today.

LADY JUSTICE MACUR: Yes, so we make a defendant's costs order. Thank you very much.

Is there anything further from you, Miss Wilding?

MISS WILDING: No, thank you.

LADY JUSTICE MACUR: Miss Knight, are there any points that you wish to be covered that have not been covered in the judgment?

MISS KNIGHT: No, thank you, my Lady.