Hulme v Director of Public Prosecutions

MR JUSTICE TOULSON: This is an appeal by way of case stated from a decision of the Flintshire Justices, sitting at Mold Magistrates' Court on 21 September 2005, convicting the applicant of an offence of sexual activity with a person with a mental disorder impeding choice, contrary to section 30 of the Sexual Offences Act 2003.

The complainant, J, suffers from cerebral palsy and has a mental age well below her chronological age of 27 years. It is not in dispute that she suffers from a mental disorder within the meaning of the Mental Health Act 1983 and therefore potentially within section 30 of the 2003 Act.

She lived with her parents, who were the licensees of a public house. On 15 April 2005, she was in the bar in the company of the appellant. He is a man of 73 years, who had no previous convictions. The justices found that the appellant touched J's vagina over her clothing and put her hand on his soft penis, which was outside his trousers. The justices were unsurprisingly satisfied that the touching was of a sexual nature.

The defence was a total denial of this touching. The appellant admitted that he had kissed J, stroked her hair and held her hand, but he denied any other physical contact. On interview, he admitted that he was aware that she was, in his words, "a bit backward and not quite normal". It is accepted that the justices were entitled to find, on the evidence, that he did touch her sexually in the way that the prosecution alleged.

Given the admission that she was a person suffering from a mental disorder and the finding that he touched her in that way contrary to his evidence, it might at first sight appear surprising that there is an appeal. Mr Smith, who presented the appeal succinctly, conceded at the outset that it might not seem attractive, but submitted that if he had a good point in law, the appellant was entitled the benefit of it. That, of course, is right.

The main argument presented to this court is that there was no evidence on which the justices could conclude that the complainant was unable to refuse sexual touching because of, or for a reason related to, her mental disorder. A subsidiary argument is that the justices gave inadequate reasons for their conclusions.

Section 30 of the 2003 Act provides, so far as material, as follows:

In this case, Mr Smith referred to certain parts of the evidence given by J to the justices to support his argument that J in fact was capable both of choosing and communicating her choice, and that, on the evidence, she did indeed make a choice: she chose not to consent to his activity; she communicated her choice and he overrode it. The admitted unattractiveness of that argument is that it means asserting that the appellant deliberately overrode her lack of consent and would accordingly be guilty of the offence of indecent assault. However, Mr Smith is perfectly right to say that, if the defendant was charged with the wrong offence, that is the fault of the prosecution; it would be no reason for dismissing this appeal if the complainant had the requisite mental capacity, and the appellant was charged with an inappropriate offence.

He highlighted from the evidence recorded by the justices that J said that when the applicant touched her hand she did not want him to do it, so she pulled her hand away and thought that he should have known then that she would not consent to any form of sexual conduct; that when the applicant asked if the complainant loved him and wanted him to, she replied "no"; that the complainant agreed that if someone says they want you, they want sex with you, and that if they touch your "fan", it is because they want sex with you; that she had received sex education from her mother and understood the nature of sexual relations; and that she understood that private parts are used for sexual intercourse and that is something people do when they want babies. But that was merely a part of her evidence.

The relevant section of her evidence as recorded by the justices should be read full. She said this:

There was also evidence from a prosecution witness who knew J and intervened, seeing what was happening. She took J away to her parents. The witness said that she felt angry as she could see what she thought was J's vagina being touched. She said that she took J to her mum and dad because J did not understand "because of the way she is".

The justices recorded that they were told by their legal adviser that the relevant question, if they found the facts as alleged by the prosecution, was whether J was able to understand that she could choose to agree or not to what took place, and that if they were of the view that she did not have the capacity to do this, the relevant question was then whether it was for a reason related to her mental disorder. That advice was sound so far as it went, but was incomplete because it related to the first limb of the statutory definition of inability to refuse, and not the second limb of inability to communicate the choice to the other party. But the fact that the advice given to the justices may have been incomplete is not itself a ground of appeal if the reasons which they gave for finding as they did were sound in law and based on evidence.

They concluded that J lacked the necessary capacity for these reasons:

As I read those findings, the justices were essentially saying that, although J did not want him to act in the way that he did, she was unable effectively to communicate her choice to the appellant. If that was their finding, and if there was evidence to support it, the conviction was proper. Was there evidence capable of supporting that finding? In my judgment, there was. It was to be found significantly in the evidence of J herself, when she said that, on the appellant touching her private parts and pressing hard, she did not know what to do or say, although it made her feel sad, hurt and upset. If the justices accepted that she did not want him to continue but did not know what to say or do, that could only sensibly be because of her mental condition. At the very least, that was a conclusion they were entitled to reach.

Similarly, when she said that she touched his penis because he made her and because he wanted her to, although she did not want to, that is again perfectly sensibly explicable on the basis that, because of her mental condition, she was not able effectively in those circumstances to communicate her wishes to him in the way that any woman of her age, not suffering from her disabilities, would have done in similar circumstances.

It is rightly not submitted that expert evidence would have been needed to support a conviction in these circumstances. The magistrates were also entitled to rely on the evidence of the witness who intervened because she saw that J was not able to handle the situation and therefore she led her away to her parents.

In my judgment, it cannot be said that the justices acted in any sense perversely in interpreting the evidence as they did and in finding that the case was proved.

That leaves the alternative ground of complaint relating to the adequacy of the reasons. In the case stated, the justices recorded that:

It is right to say that those reasons were very short and did not directly address the question of J's ability or inability to refuse to agree to the appellant's conduct.

Where a defendant is aggrieved that justices have given inadequate reasons, there are a number of courses potentially available to him. A defendant might apply for judicial review. In this case, the justices were asked to state a case giving their reasons. They did so. We now have those reasons. Those reasons were, in my judgment, more than adequate to support the conviction. In those circumstances I do not see that it continues to matter whether the reasons expressed at the time were or were not adequate at the stage that this case has now reached.

For those reasons I would answer the first question posed by the magistrates, namely: "Was there evidence on which we could conclude that she was unable to refuse to be touched sexually", yes.

I decline to give any answer to the second question: "Were the reasons given in court sufficient to meet our obligations", because that does not seem to me to matter at this stage for the reasons given.

LORD JUSTICE RICHARDS: I agree. The appeal is therefore dismissed.

MR SMITH: My Lord, I do not whether I am out of tune with procedure, do I have to make an application for legal aid taxation in this matter?

LORD JUSTICE RICHARDS: We will certainly make an order for detailed assessment for public funding purposes.