Judge: Macur LJ, Burton J, Judge Batty QC
Citation:  ex tempore;  WLR (D) 55
Summary: In this case the Criminal Division of the Court of Appeal held that where proceedings are brought under the Sexual Offences Act 2003 (“SOA”), alleging that a complainant lacked the capacity to consent to the relevant sexual acts, the Crown must prove the complainant’s incapacity beyond reasonable doubt. The appellant in the case had been convicted of sexual assault, contrary to section 3 of the SOA and appealed on the ground that the judge had applied the wrong standard of proof in his directions to the jury on the issue of capacity. The Crown conceded the appeal and Macur LJ, who gave a short ex tempore judgment on behalf of the court, held that it was correct to do so. Macur J recognised that the appeal raised a novel point of law but was clear that the criminal standard of proof applied.
Macur J said that although the SOA does not define capacity in the same way was sections 2 and 3 of the MCA, and the MCA contains a different standard of proof applies, it is desirable that there should be no inconsistency between the criminal and civil law and there is no reason for jurisprudence or related statutory terminology to be inconsistent. Macur LJ commented that the guidance provided by the MCA 2005 might form a beneficial checklist for any court called upon to determine the issue of capacity.
Macur LJ was critical of the expert evidence that was given in the court below on the question of capacity as it went beyond the expert’s remit and did not address the issue of capacity. She noted that the capacity of the complainant to consent to the act in question was fact specific and it was important that, when expert evidence was given to assist the jury in relation to matters outside their common experience, such evidence was relevant and only dealt with the matter in issue, (see IM v LM  EWCA Civ 37).
We note the recent media reports of an unpublished document prepared by the Metropolitan Police, due to be presented to the LSE shortly, which apparently shows that people with learning difficulties who report sexual assault and 67% less likely to have their case referred to the police for prosecution, and that people with mental health problems 40% less likely. These statistics, and the comments made about how exploitation is seldom recognised, are, in the minds of the editors, very relevant to the question of the Court of Protection’s approach to cases involving capacity to consent to sexual relations.
Comment: We respectfully welcome this confirmation from the Court of Appeal that, while different standards of proof apply under the SOA and MCA, it is desirable that there should be no inconsistency between the criminal and civil law. The note of the short ex tempore judgment does not contain any detail about the nature or shortcomings of the expert evidence in this case, but the comments from Macur LJ on the importance of relevant expert evidence chime with the emphasis that has been given to this in recent cases concerning the MCA. It may assist experts assessing capacity in the criminal context if their instructions draw attention to the definition of capacity under the MCA and the associated caselaw and guidance.