View source for ICLR R v GA (2014) EWCA Crim 299, (2014) MHLO 148

''CRIME — Person lacking capacity — Standard of proof — Defendant with learning disability charged with sexual assault against complainant with learning disability  — Whether complainant having capacity to “consent” to sexual acts charged  — Jury finding defendant did acts charged  — Whether judge directing jury correctly as to burden and standard of proof to make jury sure complainant not having capacity to consent — Whether criminal or civil standard — Sexual Offences Act 2003, s 3''
 
'''Regina v A (G)'''

'''[2014] EWCA Crim 299;  [2014] WLR (D)  55'''

CA:  Macur LJ, Burton J, Judge Batty QC:  6 February 2014

When at issue, the burden of proving incapacity under the Sexual Offences Act 2003 fell on the party asserting it, namely the Crown, who had to discharge the burden to the criminal standard of proof and make the jury sure the complainant did not have the capacity to consent.

The Court of Appeal (Criminal Division) so stated when allowing an appeal by the defendant, GA, against conviction on 30 August 2012 in the Crown Court at Wood Green, before Judge Patrick and a jury, of sexual assault contrary to section 3 of the Sexual Offences Act 2003, following a hearing under section 4A of the Criminal Procedure (Insanity) Act 1964, as substituted by section 2 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 and amended by section 22(4) of the Domestic Violence, Crime and Victims Act, where the jury found the defendant had committed the act alleged.

'''MACUR LJ''', giving the judgment of the court, said that the defendant appealed on the novel point of law of whether the trial judge had correctly directed the jury as to the burden and standard of proof to be applied in a case which concerned a defendant and the capacity of the complainant to consent to the acts which the jury subsequently found to have occurred and which the defendant admitted. The decision of the Court of Appeal in IM v LM [2014] WLR (D) 31 did not address the issue in the case, namely which burden and standard of proof to apply in criminal proceedings which had not had not been brought under section 44 of the Mental Capacity Act 2005. The terminology of the 2005 Act made clear that the standard to be applied in assessing capacity under that Act was the civil standard. The Sexual Offences Act 2003 did not define capacity in the same way as sections 2 and 3 of the 2005 Act. Section 74 of the 2003 Act provided an interpretation of the word “consent.” Definitions from two separate Acts of Parliament were not subject to the same standards of proof. The Court of Protection looked to the future conduct of the person in question, whereas the criminal law looked retrospectively to acts which had occurred. It was desirable that there should be no inconsistency between criminal and civil law and there was no reason for jurisprudence or related statutory terminology to be inconsistent. The guidance provided by the 2005 Act might form a beneficial checklist for any court called upon to define the issue of capacity. Appropriate directions had to be given to the jury. The statutory terms of the definition were placed in the context provided by jurisprudence. The capacity of the defendant differed in response to different questions of daily life. Jurisprudence was clear that the capacity under consideration was fact specific. When at issue, the burden of proving incapacity fell on the party asserting it, namely the Crown. The Crown had to discharge the burden to the criminal standard of proof and make the jury sure the complainant did not have the capacity to consent. That accorded with the clear intent of the 2005 Act that capacity had to be presumed until otherwise proved. If the jury could not be sure that the complainant lacked capacity it had to be directed that he or she had capacity. The issue as to whether the complainant consented to the act in question was fact specific and in the present case expert evidence had been put before the jury to assist them in determining the question of capacity. It was important that when expert evidence was given to assist the jury in matters not in their common experience that such evidence was relevant and only dealt with the matter in issue, namely capacity (see IM v LM [2014] WLR (D) 31). In the present case the evidence given had not been in the expert’s remit and did not go to the issue of capacity. The judge had adopted the wrong standard of proof in his directions to the jury on the issue of capacity. The Crown had correctly conceded the appeal. The appeal was allowed. The concession made by the jury and the supervision order would be set aside.

'''Appearances:''' Lisa Marie Wilding (assigned by the Registrar of Criminal Appeals) for the defendant; Jennifer Knight (instructed by Crown Prosecution Service, Appeals Unit) for the Crown.

'''Reported by:''' Georgina Orde, Barrister.

© 2016. The Incorporated Council of Law Reporting for England and Wales.