Sexual Activity with a Person with a Mental DisorderR v C [2008] EWCA Crim 1155 Court of Appeal

The effect of a mental disorder had to be severe before it would have the effect that a person was unable to choose whether to submit to sexual activity. If a complainant consented to sexual activity against her inclination because she was frightened of the defendant, even if her fear was irrational and caused by her mental disorder, it did not follow that she lacked the capacity to choose whether to agree to sexual activity. The Court of Appeal, Criminal Division, so held in allowing an appeal by C against his conviction at Croydon Crown Court on 22^nd March 2007 for sexual activity with a person with a mental disorder impeding choice, contrary to section 30 of the Sexual Offences Act 2003. The conviction was quashed and a retrial ordered. The Lord Chief Justice, giving the judgment of the court, said that the judge's summing up suggested that an offence under section 30 would be committed if the complainant felt unable to refuse the sexual advances of the defendant because of an irrational fear arising out of her mental disorder and the defendant knew or could reasonably be expected to know that that was the position. Such an approach would have been appropriate had section 30(1) not been qualified by section 30(2). Section 30(2) provided, however, a comprehensive definition of the circumstances in which a complainant would be unable to refuse to submit to sexual touching. Such a lack of capacity not merely involved the complainant being unable to choose to refuse to submit to sexual touching; it involved her being unable to choose to agree to such touching. The test of incapacity to consent to sexual activity should be the same under criminal and civil law. There was little, if anything, between the test of capacity to choose in section 30(2) and the common law test of capacity to consent. The words “or for any other reason” in section 30(2) set a similarly high hurdle for the prosecution to those that went before them. The effect of a mental disorder must necessarily be severe before it would have the effect that a person was unable to choose whether to submit to sexual activity. If the complainant consented to sexual activity against her inclination because she was frightened of the defendant, even if her fear was irrational and caused by her mental disorder, it did not follow that she lacked the capacity to choose whether to agree to sexual activity. It did not follow from that irrational fear that the complainant would not have been capable of choosing whether or not to agree to sexual activity in circumstances which did not give rise to that fear. Irrational fear that prevented the exercise of choice could not be equated with lack of capacity to choose. A lack of capacity to choose to agree to sexual activity could not be person-specific or situation-specific. The judge also appeared to have been persuaded that if the complainant felt unable to say no because of irrational fear, that was capable of amounting to an inability to communicate her choice within section 30(2)(b). However, section 30(2)(b) was designed to address those whose mental disorders impaired their ability to communicate. There was no evidence that the complainant was unable to communicate any choice that she had made. The directions that the judge gave to the jury in relation to the ingredients of the offence were not adequate. The judge should have reminded the jury of the medical evidence as to the complainant’s mental disorder and then directed them that if that had left her so distressed or confused that she was not capable of making a coherent decision to agree to or refuse a request for sexual activity, whoever might make the request, it would be open to them to conclude that she lacked the capacity to choose. _____________________________________________________________________ 

New Evidence after Retirement of the Jury

R v Khan [2008] EWCA Crim1112 The appellant (K) appealed against convictions of conspiracy to supply Class A drugs and conspiracy to conceal or transfer the proceeds of drug trafficking. It was the prosecution's case that K and five others had been part of the conspiracies. Four years previously four of the co-conspirators had been convicted of the offences and a fifth, K's brother, had been acquitted. At trial the prosecution relied on various evidence which it alleged connected K to the conspiracies including evidence of phone calls made between the conspirators, in particular from a mobile phone alleged to have been primarily but not exclusively used by K. It was K's case that whilst he had used the phone it had been principally used by his brother. A schedule of the frequency of the phone calls for a set period of time was put before the jury. When they retired the jury asked questions about the phone evidence which were answered by the judge. Following the questions K's legal representatives made further investigations which revealed that the evidence was inaccurate. As a result the judge gave the jury further directions on the new evidence in relation to the phone calls. K contended that the judge had erred in law in permitting additional evidence to be put before the jury after it had retired. K submitted that when the inaccuracies came to light the only permissible course open to the judge was to discharge the jury.
It was held that there was no reason in principle why the judge should not have agreed to allow the evidence in respect of the phone calls to be put before the jury, R v Karayaka (2005) EWCA Crim 346 and R v Hallam (2007) EWCA Crim 1495 applied. There was, in fact, every reason for the evidence to go before the jury and, on the evidence, it was clear that K had agreed to that course on the basis the evidence assisted his case. The evidence showed that K had accepted legal advice on the course carried out and that the question of an application to discharge the jury had been discussed. K had suffered no prejudice following the admission of the new evidence._____________________________________________________________________   

SENTENCING UPDATES

 Imprisonment for Public Protection R v Darren Banks (unreported)22^nd May 2008 Court of Appeal  The appellant (B) appealed against a sentence of detention for public protection with a minimum term of four years imposed for attempted robbery and wounding with intent. B and another man had entered the house of an elderly couple and armed themselves with a walking stick and a bottle. They woke a man in his bed and verbally abused him. They then went to his wife and demanded car keys. One man poked her in the chest with the walking stick and the other hit her on the head with the bottle. The bottle broke causing two serious cuts above her left eye and on her cheek, which required stitches. B had a lengthy history of offending relating mostly to motor vehicle offences. B had only been out of prison for five days when he committed the instant offence. A pre-sentence report assessed B as posing a high risk of re-offending and the sentencing judge noted that his offending had suddenly become more serious.

It was held that there was material before the judge that entitled him to conclude that B posed a significant risk to members of the public of serious harm. The men went into the house in order to obtain a vehicle. That type of offending was B's speciality. They armed themselves with weapons and, when confronted, used them to cause serious injury. As B was aged 20 at the time of sentencing, he should have been sentenced to imprisonment for public protection rather then detention for public protection. The appeal was dismissed.  R v Paul Waters (unreported)21^st May 2008 Court of Appeal  The appellant (W) appealed against a sentence of imprisonment for public protection with a minimum term of three-and-a-half years imposed after he pleaded guilty to robbery. W had followed a vulnerable old lady (V) to her house. As she went to unlock the door, he grabbed her handbag causing her to sustain a small cut. The attack had a serious impact on V who subsequently feared going out alone. On arrest W explained that he had only been released from prison that day and had no money. He requested that one offence of robbery and 19 offences of theft from motor vehicles be taken into account when sentencing. W had 128 previous convictions and a long standing history of drug abuse. W submitted that the criteria for the statutory presumption of dangerousness was not met and that the notional determinate sentence was too long.
It was held that although the instant case was a serious offence, it was essentially a handbag snatch. W had one previous conviction for robbery but as it was 12 years old the presumption of dangerousness was weak. He had not previously, or in the instant case, caused serious injury and a pre-sentence report found him unlikely to in the future. W did not present a significant risk of causing serious harm to members of the public and the sentence of imprisonment for public protection was quashed. The starting point of ten-and-a-half years was too high for a handbag snatch. Following the sentencing guidelines the instant offence was a scale two offence. Due to the grave aggravating factors an appropriate starting point after trial would have been seven years. Taking into account W's early guilty plea, albeit in the face of strong evidence, his sentence was substituted with one of five years' imprisonment. Appeal allowed.