Companion Website

Police Law 11th Edition

34. Sexual Offences

Chapter 34

Sexual activity with a person with a mental disorder impeding choice p 1012

Insert after the first sentence in the first paragraph on p 1013 the following:

The House of Lords has held that the words 'for any other reason' in the definition of the first type of inability were clearly capable of encompassing a wide range of circumstances in which a person's mental disorder might rob him or her of the ability to make an autonomous choice, even though he or she might have sufficient understanding of the information relevant to making it. Those circumstances could include the kind of compulsion which drove a person with anorexia to refuse food, the delusions which drove a person with schizophrenia to believe that she had to do something, or the phobia or irrational fear which drove a person to refuse a life-saving injection. Irrational fear plainly was capable of depriving a person of capacity; the question was whether it did in a particular case.

The House of Lords went on to hold that capacity to choose could be 'person specific' or 'situation specific' as well as 'act specific'. It stated that, once it was accepted that choice was an exercise of free will, and that a mental disorder might rob a person of free will in a number of different ways, and in a number of different situations, then a mentally disordered person might be quite capable of exercising choice in one situation but not in another. It was difficult to think of an activity which was more person and situation specific than sexual relations. One did not consent to sex in general; one consented to 'this act of sex with this person at this time and in this place'. Autonomy entailed the freedom and capacity to make a choice of whether or not to do so. [R v C [2009] UKHL 42]

Add after the second sentence in the first paragraph on p 1013 the following.

In relation to the second type the House of Lords has held that it was not limited to cases where a complainant was physically unable to communicate because of his mental disorder. It stated that it was quite clear that in the SOA 2003, Parliament had had in mind an inability to communicate which was the result of or associated with a disorder of the mind. There was no warrant at all for limiting it to a physical inability to communicate. It had to include a person with such a degree of learning difficulty that he or she had never acquired the gift of speech, so that it was impossible to discover whether or not he or she could understand or make a choice.[R v C [2009] UKHL 42]

Duration of notification requirement p 1025

The Supreme Court has held that the indefinite notification requirement without review referred to in the text is incompatible with the European Convention on Human Rights, art 8 (right to respect for private and family life). [R and Thompson v Secretary of State for the Home Department [2010] UKSC 17]

Foreign travel orders p 1028

The reference to ‘children under 16’ has been amended to ‘children under 18’ by the Police and Crime Act 2009 (P&CA 2009), s 23.

The maximum duration for a foreign travel order is increased from six months to five years by P&CA 2009, s 24.

Where a foreign travel order prohibits foreign travel anywhere it must require the surrender of the defendant’s passport(s) or travel authorisation at a police station on or before the date when the prohibition takes effect, or within a specified period; failure without reasonable excuse to comply with this requirement is an offence (Sexual Offences Act 2003 s 117A, inserted by P&CA 2009, s 25).

DISAPPLICATION OF TIME LIMIT p 1029

The provisions of the Magistrates’ Courts Act 1980, s 127 (which prevent summary proceedings from being instituted more than six months after the offence) do not apply in respect to breaches of notification requirements or the preventative orders under SOA 2003 (P&CA 2009, s 22).