Court of Protection Hub
  • Home
  • Resources
    • Key cases archive
  • Cases
  • News & Views
  • About the book
  • About the site

Cases

​The Secretary of State for Justice v A Local Authority & Ors [2021] EWCA Civ 1527

25/10/2021

 
​Appeal against a decision that care workers would not commit a criminal offence under section 39 of the Sexual Offences Act 2003 were they to make the practical arrangements for a 27 year old man to visit a sex worker. Appeal allowed.
Hayden J, sitting in the Court of Protection, decided that care workers would not commit a criminal offence under section 39 of the Sexual Offences Act 2003 were they to make the practical arrangements for a 27 year old man to visit a sex worker in circumstances where he has capacity (within the meaning of the Mental Capacity Act 2005) to consent to sexual relations and decide to have contact with a sex worker but not to make the arrangements himself. The Secretary of State advanced three grounds of appeal. First, that the judge misinterpreted section 39 of the 2003 Act. Secondly, that to sanction the use of a sex worker is contrary to public policy; and thirdly that the judge erred in concluding that articles 8 and 14 of the European Convention on Human Rights required his favoured interpretation.

The Court of Appeal allowed the appeal. The words "causes or incites" found in section 39 of the Sexual Offences Act 2003 carry their ordinary meaning and do not import the qualifications identified by the judge which led him to conclude that the arrangements contemplated for the P to engage with a sex worker would necessarily not result in criminal liability under section 39 of the 2003 Act. The litmus test for causation is that identified in the authorities. Do the acts in question create the circumstances in which something might happen, or do they cause it in a legal sense? Applying the approach of the Supreme Court in Hughes the care workers would clearly be at risk of committing a criminal offence contrary to section 39 of the 2003. By contrast care workers who arrange contact between a mentally disordered person and spouse or partner aware that sexual activity may take place would more naturally be creating the circumstances for that activity rather than causing it in a legal sense.

Read the full text of the judgment on Bailii

Comments are closed.
    Case summaries on every Court of Protection case & other relevant decisions with links to the full judgment where available. 

    Sign up for our free email alert

    We do not share your details with any third parties and you can unsubscribe at  any time

    RSS Feed


    Useful books from Bath Publishing


    Browse

    Categories

    All
    Advance Decisions
    Assessments
    Best Interests
    Capacity
    Committal
    Contact
    Contempt Of Court
    Coronavirus
    Costs
    Deputies
    Disclosure
    DNA Testing
    DOLs
    End Of Life Decisions
    Finance
    Gifts
    Habitual Residence
    Human Rights
    Injunctions
    International
    Jurisdiction
    LPA/EPA
    LPAs
    Medical Treatment
    Personal Welfare
    Practice & Procedure
    Pregnancy & Contraception
    Publicity
    Religion
    Reporting
    Residence
    Settlement
    Sexual Relations
    Statutory Will
    Sterilisation And Termination

    Archives

    February 2022
    January 2022
    December 2021
    November 2021
    October 2021
    September 2021
    August 2021
    July 2021
    June 2021
    May 2021
    April 2021
    March 2021
    February 2021
    January 2021
    December 2020
    November 2020
    October 2020
    September 2020
    August 2020
    July 2020
    June 2020
    May 2020
    April 2020
    March 2020
    February 2020
    January 2020
    December 2019
    November 2019
    October 2019
    September 2019
    August 2019
    July 2019
    June 2019
    May 2019
    April 2019
    March 2019
    February 2019
    December 2018
    November 2018
    October 2018
    September 2018
    August 2018
    July 2018
    June 2018
    April 2018
    March 2018
    February 2018
    January 2018
    December 2017
    November 2017
    October 2017
    September 2017
    August 2017
    July 2017
    June 2017
    May 2017
    February 2017
    October 2016
    August 2016
    July 2016
    June 2016
    May 2016
    April 2016
    March 2016
    February 2016
    January 2016
    December 2015
    November 2015
    October 2015
    September 2015
    August 2015
    July 2015
    June 2015
    May 2015
    April 2015
    March 2015
    February 2015
    January 2015



Picture
This site is published by Bath Publishing Limited
www.bathpublishing.com
Manage your email preferences
Read the Bath Publishing Privacy Policy
  • Home
  • Resources
    • Key cases archive
  • Cases
  • News & Views
  • About the book
  • About the site