England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		19 May 2006

1. MR JUSTICE TOULSON: This is an appeal by way of case stated from a decision of the Flintshire Justices, sitting at Mold Magistrates' Court on 21 September 2005, convicting the applicant of an offence of sexual activity with a person with a mental disorder impeding choice, contrary to section 30 of the Sexual Offences Act 2003.
2. The complainant, J, suffers from cerebral palsy and has a mental age well below her chronological age of 27 years. It is not in dispute that she suffers from a mental disorder within the meaning of the Mental Health Act 1983 and therefore potentially within section 30 of the 2003 Act.
3. She lived with her parents, who were the licensees of a public house. On 15 April 2005, she was in the bar in the company of the appellant. He is a man of 73 years, who had no previous convictions. The justices found that the appellant touched J's vagina over her clothing and put her hand on his soft penis, which was outside his trousers. The justices were unsurprisingly satisfied that the touching was of a sexual nature.
4. The defence was a total denial of this touching. The appellant admitted that he had kissed J, stroked her hair and held her hand, but he denied any other physical contact. On interview, he admitted that he was aware that she was, in his words, "a bit backward and not quite normal". It is accepted that the justices were entitled to find, on the evidence, that he did touch her sexually in the way that the prosecution alleged.
5. Given the admission that she was a person suffering from a mental disorder and the finding that he touched her in that way contrary to his evidence, it might at first sight appear surprising that there is an appeal. Mr Smith, who presented the appeal succinctly, conceded at the outset that it might not seem attractive, but submitted that if he had a good point in law, the appellant was entitled the benefit of it. That, of course, is right.
6. The main argument presented to this court is that there was no evidence on which the justices could conclude that the complainant was unable to refuse sexual touching because of, or for a reason related to, her mental disorder. A subsidiary argument is that the justices gave inadequate reasons for their conclusions.
7. Section 30 of the 2003 Act provides, so far as material, as follows:

"(1) A person (A) commits an offence if-

(a) he intentionally touches another person (B),

(b) the touching is sexual,

(c) B is unable to refuse because of or for a reason related to a mental disorder, and

(d) A knows or could reasonably be expected to know that B has a mental disorder and that because of it or for a reason related to it B is likely to be unable to refuse.

(2) B is unable to refuse if-

(a) he lacks the capacity to choose whether to agree to the touching (whether because he lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason), or

(b) he is unable to communicate such a choice to A."

8. In this case, Mr Smith referred to certain parts of the evidence given by J to the justices to support his argument that J in fact was capable both of choosing and communicating her choice, and that, on the evidence, she did indeed make a choice: she chose not to consent to his activity; she communicated her choice and he overrode it. The admitted unattractiveness of that argument is that it means asserting that the appellant deliberately overrode her lack of consent and would accordingly be guilty of the offence of indecent assault. However, Mr Smith is perfectly right to say that, if the defendant was charged with the wrong offence, that is the fault of the prosecution; it would be no reason for dismissing this appeal if the complainant had the requisite mental capacity, and the appellant was charged with an inappropriate offence.
9. He highlighted from the evidence recorded by the justices that J said that when the applicant touched her hand she did not want him to do it, so she pulled her hand away and thought that he should have known then that she would not consent to any form of sexual conduct; that when the applicant asked if the complainant loved him and wanted him to, she replied "no"; that the complainant agreed that if someone says they want you, they want sex with you, and that if they touch your "fan", it is because they want sex with you; that she had received sex education from her mother and understood the nature of sexual relations; and that she understood that private parts are used for sexual intercourse and that is something people do when they want babies. But that was merely a part of her evidence.
10. The relevant section of her evidence as recorded by the justices should be read full. She said this:

"She stated that Ronald Hulme touched her hand and that she did not want him to do so and should have told him that. She did pull her hand away and thought he should have known then. He also touched her hair and put his hand on her thigh and stroked it. He told her that he loved her and wanted her about six times. She did not respond to that. He touched her private parts, her 'fan' and he was feeling it and pressing hard about 12 times and she did not know what to do or say but it made her feel sad, hurt and upset. [She] agreed in cross-examination that the vagina was private and that no one should touch it unless you let them. She wanted him to stop but did not know what to do. Then Ronald Hulme unzipped his trousers and placed her hand inside his trousers onto his soft penis which was outside his underpants and trousers. He asked if she loved him and wanted him to and she replied 'no'. [She] said she touched his penis because he made her and because he wanted her to although she did not want to. [She] said that she agreed that if someone says they want you they want sex with you and if they touch your 'fan' it is because they want sex with you. It is right that Russ wanted to have sex. He also tried to kiss her. She had received sex education from her mother and understood the nature of sexual relations and that penises and vaginas were used for sexual intercourse and that was something people do when married and want babies and when they love each other."

11. There was also evidence from a prosecution witness who knew J and intervened, seeing what was happening. She took J away to her parents. The witness said that she felt angry as she could see what she thought was J's vagina being touched. She said that she took J to her mum and dad because J did not understand "because of the way she is".
12. The justices recorded that they were told by their legal adviser that the relevant question, if they found the facts as alleged by the prosecution, was whether J was able to understand that she could choose to agree or not to what took place, and that if they were of the view that she did not have the capacity to do this, the relevant question was then whether it was for a reason related to her mental disorder. That advice was sound so far as it went, but was incomplete because it related to the first limb of the statutory definition of inability to refuse, and not the second limb of inability to communicate the choice to the other party. But the fact that the advice given to the justices may have been incomplete is not itself a ground of appeal if the reasons which they gave for finding as they did were sound in law and based on evidence.
13. They concluded that J lacked the necessary capacity for these reasons:

"We found that [J] has a mental capacity well below her actual age and she was childlike, naive and eager to co-operate in the way that she gave her evidence. We considered that [J] was a vulnerable lady of limited mental ability or capacity. We were satisfied that she understood the nature of sexual relations but she did not have the capacity to understand that when placed in a situation of being touched sexually that she could choose not to agree to it. The complainant gave evidence that she pulled her hand away initially when the appellant held it in his hand and that when he asked her if she wanted him she replied 'no' but we are of the view that she was saying no to sexual intercourse which was the question being put to her by the appellant and not to whether she agreed to being touched in the way that he was touching her and placing her hand on his penis. We found that she was not capable of stopping the appellant from carrying out sexual activity with her due to her mental disorder although she was clearly upset by his actions."

14. As I read those findings, the justices were essentially saying that, although J did not want him to act in the way that he did, she was unable effectively to communicate her choice to the appellant. If that was their finding, and if there was evidence to support it, the conviction was proper. Was there evidence capable of supporting that finding? In my judgment, there was. It was to be found significantly in the evidence of J herself, when she said that, on the appellant touching her private parts and pressing hard, she did not know what to do or say, although it made her feel sad, hurt and upset. If the justices accepted that she did not want him to continue but did not know what to say or do, that could only sensibly be because of her mental condition. At the very least, that was a conclusion they were entitled to reach.
15. Similarly, when she said that she touched his penis because he made her and because he wanted her to, although she did not want to, that is again perfectly sensibly explicable on the basis that, because of her mental condition, she was not able effectively in those circumstances to communicate her wishes to him in the way that any woman of her age, not suffering from her disabilities, would have done in similar circumstances.
16. It is rightly not submitted that expert evidence would have been needed to support a conviction in these circumstances. The magistrates were also entitled to rely on the evidence of the witness who intervened because she saw that J was not able to handle the situation and therefore she led her away to her parents.
17. In my judgment, it cannot be said that the justices acted in any sense perversely in interpreting the evidence as they did and in finding that the case was proved.
18. That leaves the alternative ground of complaint relating to the adequacy of the reasons. In the case stated, the justices recorded that:

"We found the defendant guilty and in our reasons stated that [J] is a person of limited mental capacity and a vulnerable lady. The defendant had admitted touching, kissing and stroking her and that his zip was open with his penis exposed. We stated that [J and other witnesses] were all credible witnesses and we accepted their evidence."

19. It is right to say that those reasons were very short and did not directly address the question of J's ability or inability to refuse to agree to the appellant's conduct.
20. Where a defendant is aggrieved that justices have given inadequate reasons, there are a number of courses potentially available to him. A defendant might apply for judicial review. In this case, the justices were asked to state a case giving their reasons. They did so. We now have those reasons. Those reasons were, in my judgment, more than adequate to support the conviction. In those circumstances I do not see that it continues to matter whether the reasons expressed at the time were or were not adequate at the stage that this case has now reached.
21. For those reasons I would answer the first question posed by the magistrates, namely: "Was there evidence on which we could conclude that she was unable to refuse to be touched sexually", yes.
22. I decline to give any answer to the second question: "Were the reasons given in court sufficient to meet our obligations", because that does not seem to me to matter at this stage for the reasons given.
23. LORD JUSTICE RICHARDS: I agree. The appeal is therefore dismissed.
24. MR SMITH: My Lord, I do not whether I am out of tune with procedure, do I have to make an application for legal aid taxation in this matter?
25. LORD JUSTICE RICHARDS: We will certainly make an order for detailed assessment for public funding purposes.