The court gave guidance regarding the assessment of a complainant’s mental capacity in a criminal trial when the alleged offences involved proof of a lack of consent.
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The court gave guidance regarding the assessment of a complainant’s mental capacity in a criminal trial when the alleged offences involved proof of a lack of consent.
ASSESSMENT OF COMPLAINANT’S MENTAL CAPACITY BURDEN OF PROOF CONSENT CRIMINAL EVIDENCE CRIMINAL LAW CRIMINAL PROCEDURE (INSANITY) ACT 1964 s.4A EXPERT WITNESSES MENTAL CAPACITY MENTAL CAPACITY ACT 2005 s.2 MENTAL HEALTH PERSONS LACKING CAPACITY s.1 s.1(2) s.2(1) s.2(4) s.30 s.30(2)(a) s.31 s.31(2)(a) s.32 s.32(2)(a) s.33 s.33(2)(a) s.4 s.4(5) s.42 s.44 s.74 s.75 s.76 SEXUAL ASSAULT SEXUAL OFFENCES SEXUAL OFFENCES ACT 2003 s.3 SEXUAL OFFENCES INVOLVING PROOF OF LACK OF CONSENT STANDARD OF PROOF
The whole of the term of an extended sentence under the Powers of Criminal Courts (Sentencing) Act 2000 s.85 constituted the term for which a person was “sentenced to imprisonment” for the purposes of determining the notification period under the Sexual Offences Act 2003 s.82(1). There was nothing arbitrary or disproportionate about the imposition of an indefinite notification period given the statutory purposes and the existence of review provisions under s.91A to s.91F of the 2003 Act.
art.14 DISCRIMINATION EUROPEAN CONVENTION ON HUMAN RIGHTS 1950 art.8 EXTENDED SENTENCES HUMAN RIGHTS IMPRISONMENT LENGTH OF NOTIFICATION PERIOD BASED ON WHOLE OF EXTENDED SENTENCE MEANING OF “SENTENCED TO IMPRISONMENT” IN S.82(1) SEXUAL OFFENCES ACT 2003 NOTIFICATION REQUIREMENTS POWERS OF CRIMINAL COURTS (SENTENCING) ACT 2000 s.85 RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE s.40A s.51(2D) s.76 s.76(1) s.80(1) s.82 s.82(1) s.82(2) s.85(2) s.85(6) s.91A s.91F SENTENCING SEXUAL OFFENCES SEXUAL OFFENCES ACT 2003 Pt 2 WHETHER INDEFINITE NOTIFICATION ARBITRARY AND DISPROPORTIONATE
Where a defendant had taken indecent photographs of a 17-year-old girl following intercourse on a “one night stand”, the judge had been correct to reject an argument that the situation came within the terms of the defence set out in the Protection of Children Act 1978 s.1A.
AGE art.10 art.6 CONSENT CRIMINAL LAW DEFENCES EUROPEAN CONVENTION ON HUMAN RIGHTS 1950 art.8 HUMAN RIGHTS INCIDENT OCCURRING ON “ONE NIGHT STAND” INDECENT PHOTOGRAPHS OF CHILDREN PROTECTION OF CHILDREN ACT 1978 s.1(1)(a) RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE s.1 s.1(1) s.1(1)(b) s.13 s.1A s.1A(1) s.1A(4) s.76 WHETHER SITUATION CAME WITHIN S.1A PROTECTION OF CHILDREN ACT 1978
In circumstances where an offender had deceived a complainant and pressured her into having sexual intercourse more frequently than she would have done otherwise, the conclusive presumption under the Sexual Offences Act 2003 s.76 had no application as the complainant had not been deceived as to the nature or purpose of sexual intercourse.
CONSENT CRIMINAL JUSTICE AND COURT SERVICES ACT 2000 s.28 CRIMINAL LAW DECEPTION IRREBUTTABLE PRESUMPTIONS NATURE OF DECEIT CAUSING COMPLAINANT TO HAVE SEXUAL INTERCOURSE PRESUMPTIONS PROCURING INTERCOURSE RAPE s.3 s.74 s.75 s.76 s.76(2)(a) s.77 SENTENCING SEXUAL OFFENCES SEXUAL OFFENCES ACT 1956 s.3(1) SEXUAL OFFENCES ACT 2003 s.1(1)
If, through drink, or for any other reason, a complainant had temporarily lost her capacity to choose whether to have sexual intercourse, she was not consenting, and subject to the defendant’s state of mind, if intercourse took place, that would be rape. However, where a complainant had voluntarily consumed substantial quantities of alcohol, but nevertheless remained capable of choosing whether to have intercourse, and agreed to do so, that would not be rape.
CAPACITY TO CONSENT TO SEXUAL INTERCOURSE COMPLAINANT’S VOLUNTARY EXCESSIVE ALCOHOL CONSUMPTION CONSENT CRIMINAL LAW CRIMINAL PROCEDURE JURY DIRECTIONS RAPE s.1 s.75 s.75(2)(d) s.75(2)(f) s.76 SEXUAL OFFENCES SEXUAL OFFENCES ACT 2003 s.74 VOLUNTARY INTOXICATION
There was no power to add an extended sentence to a detention and training order under the Powers of Criminal Courts (Sentencing) Act 2000 s.85 .
ADDITION OF EXTENDED PERIOD OF LICENCE TO DETENTION AND TRAINING ORDERS CRIMINAL JUSTICE ACT 1991 CRIMINAL JUSTICE ACT 1991 s.39(2) DETENTION AND TRAINING ORDERS EXTENDED LICENCE PERIODS EXTENDED SENTENCES EXTENSION PERIODS INDECENCY INDECENCY WITH A CHILD INDECENCY WITH CHILD POWERS OF CRIMINAL COURTS (SENTENCING) ACT 2000 s.85 s.101 s.101(5) S.101(5) POWERS OF CRIMINAL COURTS (SENTENCING) ACT 2000 s.102 s.103 s.103(1) s.105 s.106 s.33 s.39 S.39(2) CRIMINAL JUSTICE ACT 1991 s.43(3) s.44(3) s.76 S.85 POWERS OF CRIMINAL COURTS (SENTENCING) ACT 2000 s.85(1) s.85(1)(b) s.85(2) s.85(5) s.91 SENTENCING SENTENCING POWERS SEXUAL OFFENCES UNLAWFUL SENTENCES