C, R v

Factual and Procedural Background

The Defendant met the Complainant, a 28-year-old woman affected by schizo-affective disorder, emotionally unstable personality disorder, a low IQ and substance misuse. After offering assistance in The City, the Defendant sold her belongings, supplied crack cocaine and demanded oral sex. The Complainant, frightened and confused, submitted. She later telephoned the emergency services and was found distressed in the street.

At trial the Defendant was charged under section 30 of the Sexual Offences Act 2003, which criminalises sexual touching where a person with a mental disorder is “unable to refuse.” The trial judge directed the jury that an “irrational fear” or an inability to communicate caused by mental disorder could constitute inability to refuse. The jury convicted.

The Court of Appeal ([2008] EWCA Crim 1155; [2009] 1 Cr App R 211) quashed the conviction, holding that: (1) lack of capacity cannot be person- or situation-specific; (2) irrational fear is not equivalent to lack of capacity; and (3) section 30(2)(b) concerns only physical inability to communicate. The Crown appealed. The present opinion resolves that appeal.

Legal Issues Presented

1. Whether lack of capacity to choose under section 30(2)(a) can be person- or situation-specific.
2. Whether an irrational fear, arising from mental disorder, can amount to lack of capacity to choose.
3. Whether “unable to communicate” in section 30(2)(b) is confined to physical inability, or includes inability caused by mental disorder.

Arguments of the Parties

Crown’s Arguments

• The Court of Appeal’s interpretation wrongly narrows the protection Parliament intended for persons whose mental disorder impedes choice.
• “For any other reason” in section 30(2)(a) covers irrational fear generated by mental disorder.
• Section 30(2)(b) is not limited to physical inability; mental-disorder-related inability to express choice suffices.

Defendant’s Arguments

• Relied on the Court of Appeal’s view that capacity cannot be person- or situation-specific.
• Contended that the Complainant, although fearful, made a reluctant but conscious choice and thus retained capacity.
• Submitted that inability to communicate under section 30(2)(b) must be physical, so the statutory test was not met.

Table of Precedents Cited

Court's Reasoning and Analysis

The court (per Judge Hale, with Judges Rodger, Brown, Mance and others concurring) undertook a textual and purposive analysis of section 30:

• Statutory language. The phrase “for any other reason” in section 30(2)(a) is deliberately broad, capturing situations where mental disorder impairs free will although factual understanding remains intact.
• Person- and situation-specific capacity. Sexual autonomy is inherently act-, person- and situation-specific; Parliament abandoned the former “status” approach to protect nuanced autonomy. Accordingly, capacity may fluctuate with circumstances.
• Irrational fear. Examples from civil capacity cases demonstrate that phobias, delusions and compulsions can disable autonomous choice. Such fear, when linked to mental disorder, falls squarely within section 30(2)(a).
• Communication. Section 30(2)(b) addresses inability to communicate arising from mental disorder, not solely physical disability. Limiting it to physical causes would render the mental-disorder provisions redundant.
• Relationship with other offences. Where inability to communicate stems from physical disability, sections 1–4 (e.g., rape) apply; where it stems from mental disorder, sections 30–33 apply, preserving coherence in the statutory scheme.
• Application to the facts. The jury had evidence that the Complainant’s delusional fear and highly aroused mental state deprived her of capacity, or of the ability to communicate refusal. The trial judge’s directions correctly reflected the statutory test; the jury verdict was therefore sustainable.

Holding and Implications

APPEAL ALLOWED. The conviction is restored.

Implications: The decision confirms that under the Sexual Offences Act 2003 (1) capacity to consent can be person- and situation-specific; (2) irrational fear arising from mental disorder may negate capacity; and (3) inability to communicate under section 30(2)(b) includes mental-disorder-related impairment. The ruling broadens statutory protection for individuals whose mental disorders impede genuine sexual autonomy without establishing new offences or altering the burden of proof.