Judge: Mr Justice Keehan
Citation:  EWCOP 43
Mr AB was a 51-year-old man with a diagnosis of moderate learning disabilities, autistic spectrum disorder, harmful use of alcohol and psychosis due to solvent abuse.
Mr AB had, as a result of a friendship with a sex worker, developed a fascination with female sex workers. He had since lived at a number of residential properties and during this time the local authority had been facilitating his access to sex workers both in the UK and in the Netherlands.
Having reversed this decision and concluded that they would no longer facilitate Mr AB’s visits to sex workers, Lincolnshire County Council made an application for the court to determine P’s capacity and best interests, specifically with regard to contact with sex workers.
An independently instructed psychiatrist concluded that Mr AB lacked the capacity to make a wide range of decisions including having contact with sex workers and managing his property and affairs. He was however assessed as having the capacity to consent to sexual relations. Keehan J was informed by Mr AB’s litigation friend that Mr AB had a high sex drive and found the lack of access to sex workers frustrating. He wished to continue his past conduct of having and being permitted to have sexual relations with sex workers, in the UK and in the Netherlands.
The question for Keehan J was whether to endorse the decision not to facilitate Mr AB’s access to sex workers made by the local authority.
Keehan J concluded that the local authority’s decision was correct for a number of reasons, first because the court was of the view that:
a care worker who causes or incites sexual activity by an individual for payment, with another person, commits a criminal offence, pursuant to ss. 39,42 and 53A of the Sexual Offences Act 2003.’ Thus any care worker supporting P, and making arrangements for him to travel to the Netherlands for the purposes of having sexual activity with a woman for payment, would be at risk of being prosecuted for a breach of the Sexual Offences Act 2003.
(i) Secondly, it would be wholly contrary to public policy for the court and for the local authority, to endorse and sanction P having sexual relations with a woman for payment.
(ii) Thirdly, notwithstanding P’s clearly expressed wishes and his clear desires to continue to meet prostitutes for sexual activity, it is not in his best interests to do so. The evidence before the Court is clear. Mr AB ‘does not understand all of the implications of having sexual relations with a woman for payment. He puts himself at risk to his health, his welfare and his safety and he puts himself at risk of exploitation: none of which he accepts or understands.’
Keehan J’s support for the local authority’s decision as to the right course of action is unsurprising given the evidence before it. It is however worth unpicking the conclusion that ‘a care worker who causes or incites sexual activity by an individual for payment, with another person, commits a criminal offence, pursuant to ss. 39,42 and 53A of the Sexual Offences Act 2003’. This part of what is a very short judgment conflates two separate offences under the SOA, s. 39 and s. 53A. They are however quite distinct.
Section 39 of the SOA makes it an offence to incite or cause an individual with a mental disorder to engage in sexual activity. There is of course potential for a care worker to be guilty of an offence pursuant to section 39 where they arrange, and take P to have sex with a third party. Whether such an offence would be engaged is going to be very fact-specific, depending (we suggest) upon the extent to which the care worker could be seen to be ‘driving’ the sexual activity, or providing support where a person themselves is seeking to initiate sexual activity with another. Although not relevant on the facts of this case, we suggest that it is doubtful that a care worker facilitating a P who has capacity to consent to sexual relations, to take up a sexual relationship with their partner could be said to be committing an offence under section 39. This is because the care worker’s actions would not be to incite or cause the sexual relationship, but to facilitate it.
Section 53A on the other hand is a strict liability offence (which applies world-wide). Payment for sexual services is not per se illegal; however, the operation of s.53A means that a person (A) is guilty of an offence if he:
Mr AB was assessed as lacking capacity to manage his property and affairs. It is likely therefore that the care worker taking him to visit the sex worker would be the person making the payment to the sex worker. The first part of the offence is therefore likely to be made out (although this is not made explicit in the judgment).
As to whether the offence is completed will depend on whether the sex worker had been exploited. Thus, unless the care agency or local authority were able to investigate whether the sex worker they were engaging for Mr AB had been exploited by a third person, there remains a real risk that an offence would be being committed pursuant to section 53A. The judge may well therefore have been right to conclude that offences pursuant to section 53A would be committed on the facts of this case.
Whilst one can understand why Keehan J took the approach that he did, especially given the potential implications for the care workers, it is perhaps just worth remembering that:
 Nicola having been involved in the case, she has not contributed to this report.