Judge: Lord Burnett of Maldon, King and Baker LJJ
Citation:  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:
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  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:
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:
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 a legitimate interference. He was equally dismissive of the arguments based upon discrimination:
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:
Baker LJ considered that the same principles as he had identified in Re JB applied in the instant case:
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: 
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 raising equally strong feelings): perhaps not surprisingly as 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. Those 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. 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.
The practical implications of the judgment are going to require considerable resolution on the ground, and the team are working hard on a webinar to help people think them through.
 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.
 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.