The Sexual Offences Act, care workers, and paying for sex

The Court of Appeal has issued an important ruling on whether care workers would be committing a criminal offence should they make arrangements for a man with with a mental disorder to visit a sex worker. Alex Ruck Keene analyses the judgment.

In The Secretary of State for Justice v A Local Authority & Ors [2021] EWCA Civ 1527, the Court of Appeal has overturned the decision of Hayden J that care workers would not commit a criminal offence under s.39 Sexual Offences Act 2003 were they to make the practical arrangements for a 27 year old man (“C”) to visit a sex worker in circumstances where he has capacity (within the meaning of the MCA 2005) to consent to sexual relations and decide to have contact with a sex worker but not to make the arrangements himself.  Section 39 SOA 2003 provides (in essence) that it is a criminal offence for a care worker to cause or incite sexual activity by a person with a mental disorder.

As Lord Burnett identified:

23. The proceedings in the Court of Protection were unusual. Hayden J was not invited to make a best interests decision but was invited to express a view on the application of section 39 of the 2003 Act to a hypothetical set of facts. That view depended upon assumed facts of which there was detailed evidence. After giving judgment, the judge was invited to make a declaration but declined to do so. In the result, there is no “order” which is the subject of an appeal. The proceedings below were seen by all as a steppingstone. A further hearing considering a fully worked up care plan was envisaged. The judge himself recognised at more than one point in the judgment that the whole debate had a further hypothetical air. The characteristics of C raised a serious question about whether it would be appropriate to expose a sex worker to the risks of spending time alone with him.

Whilst Lord Burnett noted that s.15 MCA appeared to give the Court of Protection the power to make declarations about the lawfulness of specific provisions in a care plan, he noted that the use of that power to declare lawful conduct which has the potential to be criminal should be confined to cases where the circumstances are exceptional and the reasons cogent (paragraph 30). Although such a declaration was not made, Lord Burnett considered that it applied with equal force in circumstances where the court made a decision reflected in its judgment that certain hypothetical conduct would not amount to a criminal offence. Lord Burnett was therefore “doubtful that it was appropriate to entertain this application and determine it.” However, he considered that it was necessary to deal with the substance of the matter not least because in coming to his decision, Hayden J had taken a different view of the law from Keehan J in Lincolnshire County Council v AB [2019] EWCOP 43.

For Lord Burnett, Hayden J had erred in seeking to give a definition of “causes or incites” for purposes of s.39 SOA 2003 that he had in order to enable him to find that the potential arrangements for C would not necessarily result in criminal liability. Rather, Lord Burnett considered (at paragraph 49) that:

the words “causes or incites” found in section 39 of the 2003 Act carry their ordinary meaning […] 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.

A second question was whether a different reading of s.39 SOA 2003 was compelled by the European Convention on Human Rights. Lord Burnett observed that:

53. […] The argument advanced under article 8 with reference to section 39 entails the underlying proposition that there is a positive obligation on the state to allow care workers to make arrangements for sexual contact with prostitutes for those in its care over the age of consent (or at least over 18) who are unable to make the arrangements themselves, at least in circumstances where contact with prostitutes is not generally prohibited. There is no sign of such a positive obligation having been recognised by the Strasbourg Court, nor of that court having recognised that article 8 entails a positive obligation on the state to allow the purchase of sex without fear of criminal sanction.

Noting that the Supreme Court had recently restated the correct approach where arguments under the Convention invited the domestic courts to march ahead of the European Court of Human Rights, Lord Burnett continued:

58. It is far from surprising that no case of the Strasbourg Court has been cited to us that recognises a human right to purchase the services of the prostitute or to be provided with such services by the state. The approach to prostitution across the Council of Europe states varies considerably. It ranges from closely regulated prostitution with neither prostitute nor client committing a criminal offence to outright illegality. Almost all Council of Europe states criminalise some aspects of the sex trade. The approach of both Sweden and Norway is notable. Prostitution is not an offence. An individual selling sexual services commits no offence but a person who purchases such services does. Similarly, since 2017 in Ireland it has been an offence to purchase sex: see part 4 of the Criminal Law (Sexual Offences) Act 2017 amending earlier legislation.

59. The regulation, including criminalisation, of various aspects of the sex trade is a paradigm example of a sphere of activity redolent with complex and controversial moral judgments. It calls for generic risk assessments with the need for legislatures to strike difficult balances. The Strasbourg Court would allow a wide margin of appreciation to the parties to the Convention in this area. There is no sign in the Strasbourg case law of a recognition of positive obligations of the sort which underpin the argument that section 39, interpreted according to ordinary canons of statutory construction, would give rise to a violation of C’s rights under article 8. That is sufficient to support the conclusion that article 8 of the Convention does not require these sections to be interpreted differently if that were possible using section 3 of the 1998 Act. Nonetheless the context of this argument is such that it must be regarded as unlikely in the highest degree that the Strasbourg Court would recognise a positive obligation of the type contended for in these proceedings.

Lord Burnett was therefore clear that s.39 SOA 2003 did not even entail an interference with Article 8(1) rights, but that even if it did, it would be legitimate interference. He was equally dismissive of the arguments based upon discrimination:

64. Section 39 of the 2003 Act is concerned with sensitive moral and ethical issues in the field of penal policy. One of its purposes is to throw a general cloak of protection around a large number of vulnerable people in society with a view to reducing the risk of harm to them. To the extent that the provision discriminates against people in C’s position by comparison with others in the care of the state (or more broadly) it represents the considered view of Parliament striking balances in these difficult areas. Such a view should ordinarily be respected. In my judgment, the discriminatory effect of section 39 cannot be stigmatised as being manifestly without reasonable foundation. The statutory provision is clearly justified.

The Secretary of State had raised a wider argument, namely that any involvement by care workers in facilitating C’s use of a prostitute would be contrary to public policy and on that basis should never be sanctioned by a court. However, in light of the conclusions that he had reached as to the interpretation of s.39 SOA 2003, Lord Burnett did not need to consider this wider argument – not fully argued before Hayden J – and therefore refused permission to the Secretary of State to amend his grounds of appeal to argue it.

Baker LJ gave a concurring judgment. He was equally troubled by the procedural approach adopted:

72. […] The powers invested in the Court of Protection under the Mental Capacity Act 2005 do not include the power to “decide” whether or not a proposed course of action is criminal and a declaration under s.15 of that Act that the course of action proposed in this case was lawful would be contrary to established authority and wrong in law. As the cases cited by my Lord demonstrate, the circumstances in which such a declaration would be justified must be exceptional and the reasons for making the declaration cogent. In this case I see no cogent reasons for making such a declaration and indeed every reason to refrain from doing so. The course of action proposed in this case would not only place the care workers at jeopardy of prosecution under s.39 of the Sexual Offences Act 2003 but would also expose C to the risk of prosecution under s.53A.

Baker LJ considered that the same principles as he had identified in Re JB applied in the instant case:

74, The Court of Protection strives to promote the autonomy of incapacitated adults to enable them as far as possible to live with the same degree of freedom enjoyed by those who have capacity whilst having regard to their need for safety and protection. I agree with Hayden J that understanding about the importance of respecting the autonomy of adults with learning disabilities has evolved and is still evolving. But as part of the wider system for the administration of justice, the Court has to adhere to general principles of law. Alongside the growing awareness of the autonomy of people with learning disabilities there has been an evolution of thinking about the treatment of people who sell sexual services. Where Parliament has expressly decided that certain conduct should be a criminal offence, it is no part of the Court of Protection’s role to declare that it is lawful.

Baker LJ was, however, at pains to emphasise that the court was only concerned with Hayden J’s decision in the case before him. At paragraph 75, he recognised that:

There are other situations where care workers are asked to assist people who have the capacity to consent to or engage in sexual relations but lack capacity in other respects, for example to make decisions about their care, treatment or contact with other people. One example is where a person with dementia living in a care home wishes to spend time with his or her partner at the family home. Another example is where a young person wishes to meet people of their own age and make friends. In both cases, one consequence may be that the incapacitated adult engages in sexual relations. I envisage that it might be appropriate in those circumstances for the Court of Protection to endorse a care plan under which care workers facilitate or support such contact and to make a declaration under s.15 of the Mental Capacity Act that the care plan is both lawful and in P’s best interests. But in making these observations I emphasise three important points. First, the merits of making such a declaration will turn on a thorough analysis of the specific facts of the individual case. Secondly, in making such a declaration, the court may have to consider carefully whether the steps proposed under the care plan have the potential to amount to a criminal offence under s.39. Thirdly, as set out in the cases cited above, any declaration would not be binding on the prosecuting authorities, although no doubt it would be taken into consideration in the event of any subsequent criminal investigation.

King LJ agreed with Lord Burnett, and also with the observations of Baker LJ: [1]

70.  As Baker LJ explains, achieving autonomy for an incapacitated adult lies at the heart of the Mental Capacity Act 2005. It is not however the role of the Court of Protection to endorse an act which would be unlawful. Under the 2003 Act, the motive of the care worker, no matter how laudable, and the consent of the person with a mental disorder who wishes to engage in sexual activity are each irrelevant. In those circumstances, I cannot see how on any plain reading of the statute, the extensive arrangements necessary in order for C to engage in sexual relations with a sex worker, and without which sexual activity with a third party would be impossible for him, can be held to be outside the terms of section 39(1) of the 2003 Act.

71. There are, however, many less extreme and benign situations which day in and day out touch on the lives of people up and down the country; Baker LJ gives the example of a care worker arranging private time for a long married couple which she knows is likely to include sexual activity in those circumstances. Such a case is wholly different from that of C and the question of whether it is appropriate to make a declaration under s15 of the 2005 Act in such cases is something to be left open for argument in the appropriate case.

Comment

Hayden J’s judgment had been the subject of much (often ill-informed) comment, and it is perhaps forlornly to be hoped that this judgment will not be the subject of comments divorced from the issues actually considered. This is particularly so because, in many ways, the judgment of the Court of Appeal in this case bears much resemblance to that of the Court of Appeal in the Tavistock case (another case provoking equally strong feelings). This is perhaps not altogether surprising:

• both Lord Burnett and King LJ sat on both appeals;
• In both cases, a first instance court had, in effect, been lured onto procedurally dangerous ground by wider concerns. In the Tavistock case, it was a concern about the implications of the administration of puberty blockers; in this case, it might be seen as a concern as to how best to secure the ability of those with cognitive impairments to express themselves sexually.
• In both cases, however the Court of Appeal made clear that the courts had over-extended themselves, and took matters back to first principles: in the Tavistock case the concept of Gillick competence, in this case first principles of criminal law.

In this case, taking matters back to first principles – and in particular the reading of the language of causation/incitement – made the answer clear for the Court of Appeal.

It is of note that Baker and King LJJ, both of whom had direct experience at first instance of having to navigate the troubled waters of sex and mental capacity, were both at pains to seek to find a way in which to limit the consequences of their conclusions so as not necessarily to implicate care workers in the situation where money is not going to change hands. [2] The boundaries between the MCA 2005 and the criminal law in relation to sex are, however, difficult, complex, and reflect difficult tensions which were highlighted very clearly in the early 2000s as requiring statutory resolution. They have not been so resolved, leaving complexities both for the Court of Appeal in this case, and – even more broadly – the Supreme Court in JB to address.

Alex Ruck Keene is a barrister at 39 Essex Chambers. This article first appeared on his Mental Capacity Law and Policy blog.

[1] As a judge senior to Baker LJ, her judgment comes before his in the formal record, but as she agrees with Baker LJ’s observations, it makes clearer reading to address her judgment second: no disrespect to her is intended.

[2] Where money will change hands then, as both Lord Burnett (at paragraph 34) and Baker LJ (at paragraph 72) identified, C – and potentially also his carers – would be at risk of prosecution for the strict liability offence under s.53A of paying for sexual services of a prostitute who had been exploited.