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Kenya Law / Blog / Case Summary: In having capacity to decide to have sexual relations with another person, a person needs to understand that the other person has to have the capacity to consent to the sexual activity and has to in fact consent before and throughout the sexual activity.

In having capacity to decide to have sexual relations with another person, a person needs to understand that the other person has to have the capacity to consent to the sexual activity and has to in fact consent before and throughout the sexual activity.

  A Local Authority v JB (By his Litigation Friend, the Official Solicitor)[2021] UKSC 52

Supreme Court of the UK

Lord Briggs, Lady Arden, Lord Burrows, Lord Stephens, Lady Rose

November 24, 2021

Reported by Faith Wanjiku

Download the Decision

Criminal Law–capacity-mental capacity- capacity to consent to sexual activity – duration of maintaining the consent -approaches which could be taken in establishing capacityto decide to have sexual relations - where the information relevant to the decision to have sexual relations with another person needed to be established under section 3(1)(a) of the MCA - whether in having capacity to decide to have sexual relations with another person, a person needed to understand that the other person had to have the capacity to consent to the sexual activity and had to in fact consent before and throughout the sexual activity-Mental Capacity Act, 2005, sections 2 (1), 3 (1) (a) & 27 (1) (b).

Criminal Law– capacity-mental capacity- capacity to consent to sexual activity - requirement that the civil (family) law and criminal law should adopt the same test for capacity to consent to sexual relations-whether lack of capacity of one party to consent to engage in a sexual relationship before and throughout the sexual activity) created an impermissible difference with the criminal law.

International Law -European Convention on Human Rights- right to respect for private and family life- interference by a public authority in protection of participants engaging in sexual activity- whether the Court of Appeal’s test (that the other person had to have the ability to consent to the sexual activity and had to in fact consent before and throughout the sexual activity) for P’s capacity to engage in sexual relations was inconsistent with article 8 -European Convention on Human Rights, 1950, article 8

International Law -United Nations Convention on the Rights of Persons with Disabilities- persons with disabilities-equal recognition before the law – where it was alleged that there was a separate standard or test for persons with disabilities on capacity to engage in sexual relations – whether the Court of Appeal’s test(that the other person had to have the ability to consent to the sexual activity and had to in fact consent before and throughout the sexual activity) for P’s capacity to engage in sexual relations was inconsistent with article 12(2) – United Nations Convention on the Rights of Persons with Disabilities, 2006, article 12 (2)

Brief facts:

A Local Authority (respondent) commenced proceedings in the Court of Protection seeking declarations under the Mental Capacity Act 2005 (MCA) as to JB’s (appellant) capacity in various matters, including a declaration that the appellant lacked capacity to consent to sexual relations. A question arose as to whether, in assessing the appellant’s capacity to consent to sexual relations, the trial court should have regard to whether he had capacity to understand that the other person involved had to give consent, and did in fact give and maintain consent throughout the act. The trial court found that that was not relevant information for the purposes of determining if an individual had capacity to consent to sexual relations under the MCA.

The respondent appealed to the Court of Appeal. The Court of Appeal recast the relevant matter as whether the appellant had the capacity to engage in rather than consent to, sexual relations. The Court of Appeal found that in deciding whether a person had the capacity to engage in sexual relations, a court should have regard to whether that person could understand that the other person involved had to be able to consent and gave and maintained consent. The respondent’s appeal was therefore allowed. The appellant, by his litigation friend, the official solicitor, appealed to the Supreme Court.

Issues:

i . Whether in having capacity to decide to have sexual relations with another person, a person needed to understand that the other person had to have the capacity to consent to the sexual activity and had to in fact consent before and throughout the sexual activity.

ii. What were the three main approaches which could be taken in establishing capacityto decide to have sexual relations with another person?

iii. How was the information relevant to the decisionto have sexual relations with another person to be established, under section 3(1) (a) of the MCA?

iv Whether the Court of Appeal’s test (that the other person had to have the ability to consent to the sexual activity and had to in fact consent before and throughout the sexual activity) for P’s (person who lacked capacity, or who was alleged to lack capacity) capacity to engage in sexual relations created an impermissible difference with the criminal law.

v Whether the Court of Appeal’s test (that the other person had to have the ability to consent to the sexual activity and had to in fact consent before and throughout the sexual activity) for P’s capacity to engage in sexual relations was inconsistent with article 8 of the ECHR.

vi. Whether the Court of Appeal’s test (that the other person had to have the ability to consent to the sexual activity and had to in fact consent before and throughout the sexual activity) for P’s capacity to engage in sexual relations was inconsistent with article 12(2) of the United Nations Convention on the Rights of Persons with Disabilities.

Relevant provisions of the law

Mental Capacity Act, 2005

Section 1-The principles

(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

Section 2 -People who lack capacity

(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

Section 3-Inability to make decisions

(1)For the purposes of section 2, a person is unable to make a decision for himself if he is unable—

(a)to understand the information relevant to the decision,

Section 27 – Family relationships etc.

(1)Nothing in this Act permits a decision on any of the following matters to be made on behalf of a person—

(b) consenting to have sexual relations,

United Nations Convention on the Rights of Persons with Disabilities, 2006

Article 12(2)-Equal recognition before the law

State Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.

European Convention on Human Rights, 1950

Article 8- Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Held

  1. The three main approaches which could be taken to capacity were: the outcome approach, the status (or category) approach, and the function (or understanding) approach. Under the outcome approach, capacity was determined by the content of the individual’s decision. A decision which was inconsistent with the views and values of the assessor, or rejected conventional wisdom was by definition incompetently made.
  2. The status (or category) approach judged an individual’s capacity according to his physical or mental status, such as age, place of residence or diagnosis, without any further inquiry into how membership of that category affected his competence as an individual. That could sometimes be a convenient method when a fairly arbitrary rule of thumb was required: for example, no-one under the age of eighteen was competent to vote in elections.
  3. The function (or understanding) approach focused upon the personal ability of the individual concerned to make a particular decision and the subjective processes followed by him in arriving at the decision. In short, whether he understood the general nature and likely consequences of what he was deciding, and if he could communicate his decision. That was the broad approach adopted by the MCA, although understanding alone might not be enough to amount to capacity under the MCA. The MCA contemplated instances where a person could understand the nature and effects of the decision to be made, but the effects of his mental disability prevented him from using that information in the decision-making process.
  4. As the assessment of capacity was decision-specific, the court was required to identify the correct formulation of the matter in respect of which it had to evaluate whether P (person who lacked capacity, or who was alleged to lack capacity) was unable to make a decision for himself. The correct formulation of the matter then led to a requirement to identify the information relevant to the decision under section 3(1)(a) of the MCA which included information about the reasonably foreseeable consequences of deciding one way or another or of failing to make the decision.
  5. The court had to identify the information relevant to the decision within the specific factual context of the case. In that way if the matter for decision related to sexual relations, but did not relate to a particular partner, time or place, so that it was non-specific, as in the case, because the appellant wished to engage in or consent to sexual relations with any woman, then the non-specificity of the matter would inform the information which was relevant to the decision.
  6. Where the matter related to sexual relations, it would ordinarily be formulated in a non-specific way because, in accordance with ordinary human experience, it would involve a forward-looking evaluation directed to the nature of the activity rather than to the identity of the sexual partner. To require the issue of capacity to be considered in respect of every person with whom P contemplated sexual relations would not only be impracticable but would also constitute a great intrusion into P’s private life. Pragmatism did not require that consent to future sexual relations could only be assessed on a general and non-specific basis. Furthermore, such a restriction on the formulation of the matter was contrary to the open-textured nature of section 2(1) of the MCA on people who lacked capacity. A general and non-specific basis was not the only appropriate formulation in respect of sexual relations as even in that context, the matter could be person-specific where it involved, for instance, sexual relations between a couple who had been in a long-standing relationship where one of them developed dementia or sustained a significant traumatic brain injury. It could also be person-specific in the case of sexual relations between two individuals who were mutually attracted to one another but who both had impairments of the functioning of their minds.
  7. If the formulation of the matter for decision could properly be described as person-specific, then the information relevant to the decision could be different, for instance depending on the characteristics of the other person or the risks posed to P by an individual who had been convicted of serious sexual offences. Moreover, the practicable steps which had to be taken to help P under section 1(3) of the MCA could be informed by whether the matter in relation to sexual relations could be described as person-specific. For instance, it might be possible to help P to understand the response of one potential sexual partner in circumstances where he would remain unable to understand the diverse responses of many hypothetical sexual partners.
  8. Furthermore, if the matter could be described as person-specific then the reasonably foreseeable consequences of deciding one way or another could be different. There could, for example, be no reasonably foreseeable consequence of a sexually transmitted disease in a long-standing monogamous relationship where one partner had developed dementia. Finally, the potential for serious grave consequences could also differ. The information relevant to the decision included information about the reasonably foreseeable consequences of a decision, or of failing to make a decision. Those consequences were not limited to the reasonably foreseeable consequences for P, but could extend to consequences for others. That again illustrated that the information relevant to the decision had to be identified within the factual context of each case. In the instant case there were reasonably foreseeable consequences for the appellant of a decision to engage in sexual relations, such as imprisonment for sexual assault or rape if the other person did not consent. There were also reasonably foreseeable harmful consequences to persons whom the appellant might sexually assault or rape.
  9. The importance of P’s ability under section 3(1)(a) MCA to understand information relevant to a decision was also specifically affected by whether there could be serious grave consequences flowing from the decision. Paragraph 4.19 of the Mental Capacity Act 2005 Code of Practice provided that if a decision could have serious or grave consequences, it was even more important that a person understood the information relevant to that decision.
  10. The function of section 27 of MCA was to identify certain decisions which were so personal to the individual concerned that no-one could take them on his behalf if he was unable to take them for himself. Section 27 did not speak to, nor did it define, the matter about which P potentially lacked capacity to make a decision for himself under section 2(1) of the MCA. Section 27 only made clear that where a court found that a person lacked capacity to consent to sexual relations, then the court did not have any jurisdiction to give consent on that person’s behalf to any specific sexual encounter. Co-incidentally, in a particular case, a matter in section 27 could also be a matter within section 2(1), but as the Court of Appeal held, the list in section 27 did not purport to be a comprehensive list of the decisions in respect of which issues as to capacity would arise.
  11. Formulating the matter as engaging in, rather than consenting to, sexual relations better captured the nature of the issues in a case such as the instant one, where the appellant wished to initiate relations with others, rather than consent to relations proposed by someone else. The ability to choose whether or not to engage in sexual activity or intercourse was close to the Court of Appeal’s formulation of engaging in sexual relations. It could be helpful to observe that the terminology of a capacity to decide to engage in sexual relations embraced both P’s capacity to consent to sexual relations initiated by the other party and P’s capacity to understand that, in relation to sexual relations initiated by P, the other party had to be able to consent to sexual relations and had to in fact be consenting, and consenting throughout, to the sexual relations.
  12. The information relevant to the decision included information about the reasonably foreseeable consequences of a decision, or of failing to make a decision, which consequences were not limited to the consequences for P. The consequences for other persons or for members of the public were therefore a part of the information relevant to the decision. As a public authority, the Court of Protection had an obligation under section 6 of the Human Rights Act 1998 not to act in a way which was incompatible with a right under the European Convention of Human Rights, as set out in Schedule 1 to the Act. Within the court, that obligation arose when considering the human rights of P, but it also extended to the rights of others.
  13. The court as a public authority, in determining what information was relevant to the decision, had to include reasonably foreseeable adverse consequences for P and for members of the public. In practice, by doing so, the court under the MCA protected members of the public. Although the Court of Protection’s principal responsibility was towards P, it was part of the wider system of justice which existed to protect society as a whole. Finally, the protection of the public provided by the criminal justice system or by a sexual risk order could not detract from the protection which was provided in practical terms by including in the information relevant to the decision the reasonably foreseeable adverse consequences for P and for members of the public.
  14. A potentially incapacitous person was required to understand that the other person had to be able to consent and did in fact consent throughout. The only alteration that needed to be made to the summary of the information relevant to the decision to engage in sexual relations, set out by the Court of Appeal was to change the words ‘had to have capacity to in (2)’ to ‘had to be able to’.
  15. There was no necessary requirement that the civil (family) law and criminal law should have adopted the same test for capacity to consent to sexual relations. There were already existing differences in relation to the applicationof the test for capacity which could have led to different conclusions in civil and criminal trials. Two such differences were as follows:

     a) First, in relation to the application of the test there were different standards of proof. The criminal standard of proof applied in relation to the constituent elements of offences under the Sexual Offences Act 2003 (SOA), including the determination of capacity, and the civil standard applied under the MCA. However, in respect of criminal proceedings for ill-treatment or neglect pursuant to section 44 of the MCA, the civil standard of proof applied to the question whether P lacked capacity.

    b) Second, the focus of the criminal law, in the context of sexual offences, was retrospective. It focused upon a specific past event. Any issue relating to consent was evaluated in retrospect with respect to that singular event. So, the material time in a criminal case was the time of the alleged offence and the question became, for instance, “did P have capacity to consent at that time?” But a court assessing capacity to engage in sexual relations under the MCA ordinarily needed to make a general, prospective evaluation which was not tied down to a particular time

  16. The courts had emphasised the desirability that the civil and criminal jurisdictions should have adopted the same test for capacity to consent to sexual relations as there was no unnecessaryinconsistency between the criminal and civil law. All else being equal, it was in principle desirable, though not necessary, that there should have been the same test for capacity in both the civil and criminal law. Even if the same test for capacity applied in the civil and criminal law, a jury would not be directed in strict accordance with the language used by, and steps to be adopted in accordance with, proceedings brought pursuant to the MCA.
  17. There were sound policy reasons why the civil and criminal law test for capacity should be the same as they both served the same important function: to protect the vulnerable from abuse and exploitation. Viewed from that perspective, X either had capacity to consent to sexual intercourse or she did not. It could not depend upon the forensic context in which the question arose, otherwise the law would be brought into disrepute. The civil law test for consent could not impose a less demanding test of capacity than the criminal law test.
  18. For the civil law to impose a different and more demanding test of capacity there were countervailing and overriding policy reasons that would support the clarification of the test for capacity under the MCA: namely, the protection of others and the protection of P. Those policy reasons would amply justify any differences that might arise between the civil and criminal law tests for capacity. As the Court of Appeal stated in the case, the fundamental responsibilities of the Court of Protection included the duty to protect P from harm. The protection given by the requirement that P should understand that P should only have sex with someone who was able to consent and gave and maintained consent throughout protected both participants from serious harm.
  19. Both the criminal law and the civil law served the same function in that context of protecting the vulnerable from abuse and exploitation that should not conceal the different purposes of the civil and criminal law and the different ways in which they carried out their functions. The primary purpose of the criminal law was the prosecution of behaviour that was classified as criminal and the punishment of offenders by the state. In civil proceedings under the MCA the courts had to balance the promotion of the autonomy of vulnerable persons with their protection from harm, as required by general principles of law and the court’s obligations as a public authority under the Human Rights Act 1998, having regard to the rights of others. Viewed in that way, the differences between criminal proceedings and civil proceedings under the MCA suggest that it could be permissible to adopt different tests of capacity in the civil and the criminal law.
  20. It was not clear under the ground of appeal whether the appellant was advancing an argument that the appellant’s article 8 of the European Convention on Human Rights (ECHR) rights had been breached and, if so, by whom or an argument as to how the MCA should have been construed compatibly with article 8. Neither argument was advanced at first instance or in the Court of Appeal, so the appellant required permission to bring them. There was no merit in the compatibility argument. Permission to raise it should be refused. Information relevant to the decision under the MCA took into account not only the interests of P but also the interests of others and of the public. Furthermore, section 1(3) of the MCA provided that a person was not to be treated as unable to make a decision unless all practicable steps to help him to do so had been taken without success which ensured that the interference with article 8, if it was engaged, was proportionate. The operation of the MCA was compatible with article 8 of ECHR.
  21. There was no separate standard or test for persons with disabilities. The fact that the other person had to have the ability to consent to the sexual activity and had to in fact consent before and throughout the sexual activity applied to everyone in society.
  22. The evaluation of the appellant’s capacity to make a decision for himself was in relation to the matter of his engaging in sexual relations. Information relevant to that decision included the fact that the other person had to have the ability to consent to the sexual activity and had to in fact consent before and throughout the sexual activity. Under section 3(1)(a) of the MCA, the appellant should be able to understand that information and under section 3(1)(c) of the MCA, he should be able to use or to weigh it as part of the decision-making process. Applying the test in section 2(1) of the MCA on the available information, the appellant was unable to make a decision for himself in relation to that matter because of an autistic impairment of his mind. Because that information was not fully considered or analysed during the hearings before the trial court, it would not be appropriate to make a final declaration that the appellant did not have capacity to make a decision to engage in sexual relations. The right course was therefore to remit the matter to the trial court for reconsideration in the light of the Supreme Court judgment.

Appeal dismissed.

Relevance to Kenya’s legal system

Kenya does not have a Mental Capacity Act but the Sexual Offences Act, No.3 of 2006, which provides in section 6 on compelled or induced indecent acts and goes on to state that: A person who intentionally and unlawfully compels, induces or causes another person to engage in an indecent act with the person compelling, inducing or causing the other person to engage in the act; a third person who would otherwise not have committed or allowed the indecent act; or is incapable in law of appreciating the nature of an indecent act, including the circumstances referred to in section 43, is guilty of an offence and is liable upon conviction to imprisonment for a term which shall not be less than five years.

The Act goes ahead to provide for the meaning of consent in section 42to mean that a person consents if he or she agrees by choice, and has the freedom and capacity to make that choice.Section 43 on intentional and unlawful acts provides that an act is intentional and unlawful if it is committed in any coercive circumstance;in respect of a person who is incapable of appreciating the nature of an act which causes the offence. The circumstances include the use of force, threat of harm against the complainant or another person or against the property of the complainant or that of any other person e.t.c.

Subsection (4) provides the circumstances in which a person is incapable in law of appreciating the nature of an act referred to in subsection (1) to include circumstances where such a person is, at the time of the commission of such act; asleep; under the influence of medicine, drug, alcohol or other substance to the extent that the person’s consciousness or judgment is adversely affected; mentally impaired.

Section 44 provides for evidential presumptions about consent which exist when for example violence is used, fear of violence and that the accused person knew that those circumstances existed, among others, where the complainant is to be taken not to have consented to the act unless sufficient evidence is adduced to the contrary.Section 45 provides for conclusive presumptions about consent to include where the complainant did not consent to the commission of that act and was maybe deceived, intentionally induced through impersonation.

In Republic v Oyier [1985] eKLR, the Court of Appeal held that the lack of consent was an essential element of the crime of rape. The mens rea in rape was primarily an intention and not a state of mind. The mental element was to have intercourse without consent or not caring whether the woman consented or not. To prove the mental element required in rape, the prosecution had to prove that the complainant physically resisted or, if she did not, that her understanding and knowledge were such that she was not in a position to decide whether to consent or resist.

In Paul Nganga Kamau v Republic, the appellant was convicted of rape and sentenced to 12 years’ imprisonment. The complainant testified that on the day of the incident, she met the appellant at a bar and agreed to spend the night with him for a sum of money. The appellant took her to a house and he and two colleagues raped the complainant for the whole night in turns. The complainant testified that she had withdrawn her consent at the time she had intercourse with the appellant. The court held that if it was proven that the complainant withdrew consent at any time before the sexual act, even if the complainant had initially consented, then the appellant was guilty of rape.

Kenya may not have a Mental Capacity Act or legislation solely on the same but the UK case is a guide in developing jurisprudence on the same to be able to effectively understand and deal with the issue of capacity to consent to engage in sexual activity for the protection of both participants and the public at large.

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