Judgement handed down in Supreme Court case regarding test for capacity to consent to sex
Judgment has been handed down in the Supreme Court on the case of A Local Authority v JB (by his litigation friend, the Official Solicitor), in which Respond filed a written intervention in July 2021.
Respond was granted permission to intervene in this important case by the Supreme Court in April 2021. Respond instructed Irwin Mitchell solicitors and barristers Aswini Weereratne QC, Sophy Miles, Mary-Rachel McCabe and Caragh Nimmo of Doughty Street Chambers to prepare the intervention, all of whom acted pro bono.
The person at the centre of the case was a man in his 30s, JB, who lives with autism and impaired cognition. He has a history of behaving inappropriately towards women, and as a result there was a question over his ability to understand that a sexual partner must consent to a sexual act and must have the ability to consent to the sexual act.
The question for the Supreme Court was whether, in order for a person to have capacity to engage in sexual relations, they are required to understand that their sexual partner must consent before and throughout and have capacity to give their consent to the sexual act.
The court was asked to consider a more situation-specific test for capacity. Unfortunately, the appeal was dismissed, but the court amended the wording of the test to ensure it’s not too difficult or abstract for those required to use it so that the person must understand that their partner must consent to the sexual act and have the ability to consent.
Following judgment, Mathieu Culverhouse, the specialist public law and human rights lawyer at Irwin Mitchell, who represented Respond, said: “We’re pleased that the Supreme Court has engaged with the arguments put forward on behalf of Respond, and whilst this judgment does not go as far as we had hoped in simplifying the test for capacity to engage in sexual relations, the test that needs to be applied in these types of cases is now clear and settled. We would like to thank the court for hearing the concerns on behalf of our client, and for providing confirmation of the correct test to be used. We would also like to thank Respond. The work it does is undoubtedly beneficial to those that need it, and it was great to hear the court recognise this.”
