A Local Authority v JB (Rev 1) [2020] EWCA Civ 735

Appeal against a declaration that the P had capacity to consent to sexual relations. The appeal was allowed, the declaration set aside and the matter was remitted to the judge for reconsideration.

The issue arising on this appeal was whether a person, in order to have capacity to decide to have sexual relations with another person, needs to understand that the other person must at all times be consenting to sexual relations. The first instance judge concluded that the P did have capacity to consent to sexual relations, and said: "For the purposes of determining the fundamental capacity of an individual in relation to sexual relations, the information relevant to the decision for the purposes of section 3(1) of the MCA 2005 does not include information that, absent consent of a sexual partner, attempting sexual relations with another person is liable to breach the criminal law." The LA appealed.

The Court of Appeal allowed the appeal for three main reasons, Lord Justice Baker concluding:

1.  It is unnecessary and inappropriate to consider whether "a full and complete understanding of consent in terms recognised by the criminal law" (my emphasis) is an essential component of capacity to have sexual relations. 
2. Although some capacitous people might struggle to articulate the precise terms of the criminal law in this regard, I do not agree that capacitous people have difficulty understanding that you should only have sex with someone who is able to consent and who gives and maintains consent.
3. I do not think it right to reject the requirement of an understanding as to the necessity of mutual consent to sex on the grounds that there are "mistakes which all human beings can, and do, [make in] the course of a lifetime". 

Read the full text of the judgment on Bailii