1 User Commentary
30 August 2011
Meaning of “unable to communicate” in section 30(2)(b) of Sexual Offences Act 2003.
The House of Lords handed down judgement in the case of R v C  UKHL 42 on 20th July 2009. The defendant was charged under section 30 of the Sexual Offences Act 2003 c. 42, with intentionally touching the complainant in circumstances where the touching was sexual. The complainant was unable to refuse because of or for a reason related to a mental disorder and the defendant knew or could reasonably have been expected to know she had a mental disorder and would be likely to be unable to refuse. The trial judge in his directions to the jury indicated that they were entitled to find that because of her mental capacity the complainant was unable to refuse due to an irrational fear of what was taking place. The defendant was found guilty.
Allowing the defendant’s first appeal the Court of Appeal held that the judge had been wrong to equate the complainant’s irrational fear due to her mental disorder with a lack of capacity to choose, and further there was no evidence that she was physically unable to communicate any choice she had made.
Overruling the decision of the Court of Appeal, and allowing the Crown’s appeal, the House of Lords held that the Court’s interpretation of the Act was unsound. The Court of Appeal had unduly limited the scope of section 30(1) of the Act in holding that a lack of capacity to choose cannot be person or situation specific, that an irrational fear that prevents the exercise of choose cannot be equated with lack of capacity to choose and by concluding that in order to be afforded protection by section 30(2)(b) of the Act a complainant must be physically unable to communicate by reason of mental disorder.
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