On appeal from: [2008] EWCA Crim 1155. Concerned clarification of the interpretation of the test for capacity to consent or to refuse a sexual touching under the Sexual Offences Act 2003, s 30(2)(b).

Appeal allowed: the Court of Appeal had unduly limited the scope of s 30(1) of the 2003 Act beyond that which parliament intended. A lack of capacity to choose could be person or situation specific and an irrational fear that prevents the exercise of choice could be equated with a lack of capacity to choose. Further, in order to fall within s 30(2)(b) it was not necessary that a complainant be physically unable to communicate by reason of his mental disorder. The respondent’s conviction was restored accordingly.

For judgment, please download: [2009] UKHL 42
On appeal from: [2008] EWCA Crim 1155

Tags: , ,