CASE UPDATES 

SEXUAL OFFENCES

R v C (Respondent) [2009] UKHL 42 (on appeal from:[2008] EWCA Crim 1155  - Main judgment by Baroness Hale of Richmond 30/7/2009)Section 30 of the Sexual Offences Act 2003 makes it an offence to have sexual activity with a person with a mental disorder impeding choice. Reversing a ruling of the Court of Appeal in 2008, their Lordships held unanimously that: a)      A lack of capacity to choose can be person or situation specific;b)      An irrational fear that prevents the exercise of choice can be equated with a lack of capacity to choose; and c)      A complainant need not be physically unable to communicate by reason of his mental disorder in order to fall within section 30(2)(b).  Where the complainant’s inability to communicate her choice not to consent to the sexual act is due to a physical disability, the ordinary offences in sections 1 to 4 apply; where her inability to communicate her choice is due to a mental disorder, the special offences in sections 30 to 33 apply.  The Act deals with people who because of a physical disability are not able to communicate whether or not they have consented by placing an evidential burden on the defendant; see s 75(1), (2)(e).Section 30(2)(b), read together with section 30(2)(a), provides that a complainant is unable to refuse if she is unable to communicate to the defendant a choice whether to agree to the touching, whether because she lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason.  Provided that the inability to refuse is “because of or for a reason related to a mental disorder” (s 30(1)(c)), and the other ingredients of the offence are made out, the perpetrator is guilty. The words “for any other reason” are clearly capable of encompassing a wide range of circumstances in which a person’s mental disorder may rob them of the ability to make an autonomous choice, even though they may have sufficient understanding of the information relevant to making it [including the nature of the act and its consequences]. These could include the kind of compulsion which drives a person with anorexia to refuse food, the delusions which drive a person with schizophrenia to believe that she must do something, or the phobia (or irrational fear) which drives a person to refuse a life-saving injection (as in Re MB) or a blood transfusion (as in NHS Trust v T).Once it is accepted that choice is an exercise of free will, and that mental disorder may rob a person of free will in a number of different ways and in a number of different situations, then a mentally disordered person may be quite capable of exercising choice in one situation but not in another. The complainant here, even in her agitated and aroused state, might have been quite capable of deciding whether or not to have sexual intercourse with a person who had not put her in the vulnerable and terrifying situation in which she found herself on 27 June 2007. The question is whether, in the state that she was in that day, she was capable of choosing whether to agree to the touching demanded of her by the defendant. It may be worth observing that there were at least three offences which might have been charged on the evidence available. We are told that the defendants were originally charged with rape, but that charges under section 30 were substituted at a late stage. The view may have been taken that the offence under section 30 is somewhat easier to prove. The prosecution has only to prove the inability to refuse rather than that the complainant actually did not consent. This may not make much difference …, given that both offences relate to a specific sexual act, and the Act provides that “a person consents if he agrees by choice, and has the freedom and capacity to make that choice” (s 74). But the mens rea under section 30 is that the defendant knows or could reasonably be expected to know that the complainant has a mental disorder and that because of it or for a reason related to it she is likely to be unable to refuse (s 30(1)(d)). The mens rea for rape is that the defendant does not reasonably believe that the complainant consents (s 1(1)(c)). This puts a greater burden of restraint upon people who know or ought to know that a person’s mental disorder is likely to affect her ability to choose. This may explain why the decision was made to charge the section 30 offence in this case. Less easy to understand is why the offence under section 34 was not charged in the alternative. This involves the same range of sexual acts as does the offence under section 30 and attracts the same levels of punishment. It covers intentional sexual touching with the agreement of the person touched (s 34(1)(a), (b)), where the defendant has obtained that agreement by means of an inducement offered or given, a threat made or a deception practised for that purpose (s 34(1)(c)), and the defendant knows or could reasonably be expected to know that the complainant has a mental disorder (s.34(1)(d)(e)). Perhaps the view was taken that the evidence of lack of capacity was more robust than the evidence of any inducement, threat or deception. This is pure speculation. But the alternative charges would have enabled the judge to explain the various concepts by distinguishing them from one another and relating them to the evidence: a lack of consent arising from the lack of either the freedom or the capacity to make that choice; a lack of capacity to make that choice arising from or related to a mental disorder; and a choice procured by threats, inducement or deception of a person with a mental disorder.http://www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd090730/rvc-1.htm  CONFISCATION R v Islam (Respondent) [2009] UKHL 30  (on appeal from:[2008] EWCA Crim 1740) In confiscation proceedings under the Proceeds of Crime Act 2002, for the purpose of calculating a defendant’s benefit, but not the available amount, the value of goods, such as drugs, in an unlawful market may be taken into account (majority ruling of 3:2).This case raises a short but important point about the meaning of the expression “market value” in s.79 of the Proceeds of Crime Act 2002.  The relevant subsections provide as follows:“(1) This section applies for the purpose of deciding the value at any time of property then held by a person.(2) Its value is the market value of the property at that time.”The market that had to be contemplated for the assessment of the available amount under s.9 of the 2002 Act had to be taken to be one to which the defendant could resort to realise his assets without acting illegally. But no such restriction applied at the stage of calculating the amount of his benefit under s.8. At that stage, the nature of the goods and the market in which they were ordinarily bought and sold would determine the market to which it was proper to go to discover the amount that a willing buyer would pay to a willing seller for them.http://www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd090610/islam-1.htm  SENTENCING – YOUNG OFFENDERSR v (1) H (2) N [2009] EWCA Crim 1453((CA (crim div) Hooper LJ, Rafferty J, Cranston J 30/7/2009)

A young offender who had been sentenced to a 12-month detention and training order for violent disorder contrary to the Public Order Act 1986 s.2(1) had his sentence quashed and replaced with a 12-month supervision order with a condition of 25 days of specified activities. He possessed a good school record and was studying for professional qualifications and A-levels, and the court was minded that a loss of liberty would impede his progress towards a profession.

The appellant young offender N appealed against his sentence for violent disorder contrary to the Public Order Act 1986 s.2(1). The Crown's case was that H and N had been part of a group of youths who had caused a disturbance outside a residential address. It alleged that in the course of the disturbance H had abused and assaulted three people (K, B and C) and that N had been at the forefront of the disturbance, having punched K and kicked his front door.

HELD: N had an impressive scholastic record and was studying for professional qualifications and A-levels. He was anxious that his loss of liberty would impede his progress towards a profession, and therefore he was a welcome exception to the youths that the court often had to deal with who had little regard for their education or their future. N's detention and training order was quashed and was replaced with a supervision order of 12 months, with a condition of 25 days of specified activities.

 BREACH OF PROBATIONWEST YORKSHIRE PROBATION BOARD v ROBINSON : WEST YORKSHIRE PROBATION BOARD v TINKER (2009)(DC (Thomas LJ, Silber J) 20/7/2009)

Where an offender had been given a warning by the probation board for breach of either a suspended sentence order or a community order, if an information was laid before a magistrates' court for a subsequent breach, then both the original breach and the subsequent breach could be included in the information. A warning did not expunge the original breach.

Criminal Justice Act 2003 Sch.12 para.4 and sch.8 para.5

HELD: The purpose of the Act was to remove the number of discretions to give a warning that could be exercised. As a result, a probation officer had only one discretion to give a warning. After the first warning he had no discretion, and if there was a failure to comply, then an information had to be laid. That did not mean that when an information was laid it could only be laid in respect of the breach in question; the original breach and the subsequent breach could be included. There was no reason to construe the warning in any other way. There was no basis to the argument that a warning in relation to a first breach had the effect of dealing with that breach. The purpose was to give the probation officer a single discretion so he did not always have to bring the offender to court. He only had one discretion and the warning did not act as a punishment. The warning did not expunge the original breach. Accordingly, the decisions of the magistrates' court had been wrong in respect of both R and T.

 DANGEROUSNESS – PROBATION’S ASSESSMENTR v S [2009] EWCA Crim 1465(CA (crim div) Keene LJ, Dobbs J DBE, Recorder of Nottingham 23/6/2009)

Whilst a judge was not bound to accept the opinion of a probation officer that a young offender convicted of wounding with intent should not be sentenced to an extended sentence or detention for public protection, there had to be cogent reasons for departing from that opinion.

The appellant young offender (S) appealed against a sentence of detention for public protection with a minimum term of two-and-a-half years, imposed following his conviction for wounding with intent. S had been 16 years old at the date of the offence and had a history of conflict with the 15-year-old victim (V). He had pursued V, with two other boys, to V's school. V had offered to fight and S had stabbed him once in the chest with a knife which S had hidden in his jacket sleeve. V's condition had been thought to be life-threatening but he had later recovered. S had been arrested and on the first day of trial he had pleaded guilty to wounding with intent. A pre-sentence report stated that there was no basis to conclude that S presented a real risk of harm to the public. A probation officer also did not consider S to be so dangerous as to be suitable for an extended sentence or detention for public protection. However, the sentencing judge indicated that a sentence at the severe end of the range in the Sentencing Guideline Council's guidance had to be imposed to reflect deterrence as well as protection. He found that there was a significant risk of serious harm by S committing further specified offences and that detention for public protection was necessary and justified due to the deliberate and calm way S had stabbed V.

HELD: (1) The judge had erred in imposing an indeterminate sentence in light of the evidence in front of him. Whilst he had not been bound to accept the opinion of the probation officer, there had to be cogent reasons for departing from the officer's opinion. The judge had not addressed that issue. He had made no reference to the contents of the pre-sentence report and had not indicated why he disagreed with the officer's assessment. (2) The test was whether the sentence imposed was manifestly excessive as opposed to whether another court would have imposed a shorter sentence. It was correct to say that there was significant mitigation, including S's youth, but there was also significant aggravation. S had been in possession of a knife, which he had been carrying around and which he had used offensively. There had been no need for him to have followed V and to have got involved in a fight. Moreover, V had been unarmed. S had stabbed V in the chest, putting his life at risk. There was a guilty plea but it had been entered on the first day of trial, so little credit could be afforded to it, Attorney General's Reference (No48 of 2008), Re (2008) EWCA Crim 2514, (2009) 2 Cr App R (S) 1 considered. The sentencing judge had had in mind the issue of deterrence and that those who carried knives in the street and used them to wound and injure had to expect severe punishment, Attorney General's Reference (No49 of 2008), Re (2008) EWCA Crim 2304, (2009) 1 Cr App R (S) 109 considered. Therefore, the sentence was not manifestly excessive. (3) The order of detention for public protection was quashed and substituted for a sentence of five years' detention.