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

​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