A Local Authority v C & Ors

A Local Authority v C & Ors

Section 39 Sexual Offences Act 2003 does not criminalise carers who facilitate contact with a sex worker for a person with capacity to consent to sexual relations. The legislative purpose is to prevent exploitation, not to restrict autonomous sexual expression. A restrictive interpretation would be discriminatory and contrary to Convention rights.

Parties
Applicant: A Local Authority; 1st Respondent: C (by his litigation friend, AB); 2nd Respondent: A Clinical Commissioning Group; 3rd Respondent: Secretary of State for Justice
Jurisdiction
England and Wales
Judgment Date
26 April 2021
Procedural Posture
Application / Judgment
Outcome
Application granted in part; Section 39 SOA 2003 does not criminalise facilitation by carers in these circumstances.
Legal Topics
Sexual Offences Act 2003, Capacity to Consent to Sexual Relations, Disability Discrimination, Article 8 ECHR, Article 14 ECHR, Statutory Interpretation, Care Planning for Disabled Adults
Mental Capacity Human Rights Criminal Law Sexual Offences Act 2003 Capacity to Consent to Sexual Relations Disability Discrimination Article 8 ECHR Article 14 ECHR +2 more

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Parties

A Local Authority

Applicant

C (by his litigation friend, AB)

1st Respondent

A Clinical Commissioning Group

2nd Respondent

Secretary of State for Justice

3rd Respondent

Procedural Posture

Application / Judgment

Legal Issues

  1. 1 Whether a care plan to facilitate C’s contact with a sex worker could be implemented without commission of an offence under the Sexual Offences Act 2003
  2. 2 If not, whether the Sexual Offences Act 2003 can be read compatibly with the European Convention of Human Rights, or whether the Court should make a declaration of incompatibility
  3. 3 If lawful, whether such a plan would be in C’s best interests

Ratio Decidendi

Section 39 Sexual Offences Act 2003 does not criminalise carers who facilitate contact with a sex worker for a person with capacity to consent to sexual relations. The legislative purpose is to prevent exploitation, not to restrict autonomous sexual expression. A restrictive interpretation would be discriminatory and contrary to Convention rights.

Court Disposition

Application granted in part; Section 39 SOA 2003 does not criminalise facilitation by carers in these circumstances.

Orders

  • Declarations made that C lacks capacity in specified areas but has capacity to consent to sexual relations and to decide to have contact with a sex worker.
  • No declaration of incompatibility required under Human Rights Act 1998.