Thread by @KitzingerCelia

I'm watching the Court of Appeal consider whether a care plan to facilitate C's contact with a sex worker could be implemented without commission of an offence under the Sexual Offences Act 2003. It's an appeal against Hayden's judgment in the COP.

Sir James Eadie QC is counsel for the Secretary of State of Justice, the Appellant in this case. He's presenting the case against Hayden J's decision that s.53A Sexual Offences Act has "little, if any relevance" to C's proposed contact with a sex worker.
blackstonechambers.com/barristers/jam…

Here's what s.53A of the Sexual Offences Act says:

Eadie QC says "the Court of Protection should be taking NO chances with the criminal law" + quotes research + submitted evidence showing that all women in prostitution are likely to be vulnerable to exploitation, coercion and force.

Research shows it's not possible, says Eadie QC, on an initial conversation to distinguish trafficked and non-trafficked women, or to tell whether women are being coerced + exploited. Some don't even recognise it themselves. All women in sex-trade are at risk.

Approving a care plan involving a sex worker is "treading down a primrose path" and "sanctioning a course of conduct exposing a care working *and* P to the risk of committing a criminal offence" (Eadie QC)

The court's power to make orders is constrained by the principle that it should not be contrary to public policy.

Society has serious concerns about prostitution - there are moral views + increasing recognition that it often involves strong elements of exploitation.

(Eadie QC)

Should a court be sanctioning the use of public resources to organise prostitution? It is tacitly approving an activity that continues to be regarded as a moral minefield and risks reliance on trafficking and modern slavery. (Eadie QC)

Eadie QC is addressing the European Convention on Human Rights.

Does Art 8 (right to private life) mean the state has a positive obligation to support a person such as C to have sexual relations with a prostitute?

No, says Eadie QC.

Article 14 ECHR: non-discriminaton

If the court doesn't order support for C to have sex with prostitute it's likely he won't be able to do so whereas a person without his disabilities is. Disability is a strongly protected status

But there is no right to have sexual relations with a prostitute. (Indeed quite the reverse, see. s. 53A SOA)

It's not just C's rights that are at issue -also rights of care workers and those of sex workers, protected under Art 4 ECHR (slavery + forced labour)

Says Eadie QC

Another case where a disabled person's rights are constrained by public policy. Personal autonomy is important but there is no positive right to engage a sex worker as there is no positive right to kill oneself.
publications.parliament.uk/pa/ld200102/ld…

(Says Eadie QC)

Now Victoria Butler Cole QC for C (the autistic man who wants sex with prostitute/sex worker)

She's rather hard to hear - lots of banging by the judges who are closer to mike and her voice is rather soft. Will do my best.

39essex.com/barrister/vict……
@TorButlerCole @39PublicLaw

@TorButlerCole @39PublicLaw Butler-Cole QC begins by explaining that the focus in the COP was on s.39 of the Sexual Offences Act - not s.53A which Eadie QC was addressing in his argument.

Butler-Cole raises procedural problem:

It is s.39 that is the subject of appeal - not s.53A which hasn't been addressed in the COP yet and which *would* be only in the event that the CoA upholds the judgment in relation to s.39.

Section 39 SOA cannot be looked at solely through prism of sex work. It's about the actions of carers. It says nothing at all about sex workers.

Butler-Cole QC says Eadie QC's construction would mean carers providing practical assistance to ppl with mental disorders to support sex with their partners would be acting unlawfully.

The proposed + hypothetical care plan for C is (a) care staff assist C to select a particular sex worker from those available through specialist sex worker agency for ppl with disabilities (presenting choices in format suitable for him) cont/

(b) staff will determine payment required + assist C by accompanying him to cashpoint to help him get relevant amount which C will then keep in an envelope until required (+ he'll then make payment himself) cont/

(c) staff will make sure co-tenant is out of house while C is with sex worker; (d) staff will remain in C's house; (e) staff will work with C to prepare plan for how activity should go in advance; (f) sex worker will be given a doc summarising C's risk profile.

Lunch break - starting again at 2pm.

Here's the link:
youtube.com/channel/UCFFIK…

The Institute of Registered Case Managers is an "interested party" in this case. Butler-Cole QC has just referred to their submission. It's often the case manager who would be responsible for organising access to a sex worker. Their survey found 52% had experience of this.

Court is now addressing the definition of "care workers" - since it's that category of people who cannot 'cause or incite' sexual activity under s. 39.

S.42(4) casts the net very widely. Does it include family members, voluntary workers, Finance Deputy?

"You cannot use your power over people who happen to have a mental disorder to impose what you consider to be morally right" says Butler-Cole QC (counsel for C)

Lady Justice King reflects that "these decisions [about sex for people with disabilities] are made day in, day out. It's just a nervous moment for this particular local authority that has brought this issue to court".

Parishil Patel QC represents the LA
Accept arguments of Butler-Cole QC for C.
The appeal is about the legality of making arrangements for capacitous adults with mental disorder to have sex. It does NOT concern the rights and wrongs of prostitution.

39essex.com/barrister/pari…

Patel QC says the words "intentionally cause" have to be understood in context of the Sexual Offences Act which is designed to "criminalise a serious breach of trust".

Sam Karim QC is representing the CCG. Taking a risk-averse position they would not commission a care package including contact between C and a sex worker unless there was no risk of an offence under s. 39 (s.53 not having been contemplated at that time apparently).

The CCG takes a neutral position.
In terms of public policy: Quoting Stephens v Avery 1988
"if it is right that there is now no generally-accepted code of sexual morality applying to this case, it would be quite wrong in my judgment for any judge to apply his own personal /cont

... moral views, however strongly held, in deciding the legal rights of the parties. The court's function is to apply the law, not personal prejudice. /cont

Only in a case where there is still a generally accepted moral code can the court refuse to enforce rights in such a way as to offend that generally accepted code." (Stephens v Avery 1988)

Eadie QC doing final submission.

Refers to s. 53a as the "elephant sitting in the corner of the room".

Says scheme by Butler-Cole QC to return to CoA later on this is impractical and a waste of resources.

"This ultimately is about whether the COP can use its power to sanction this sort of activity. I say (1) there's an unacceptable risk of criminality + (2) even if there isn't, it's contrary to public policy." (Eadie QC)

And returns to the meaning of "cause" - it's not the "but for" version of cause, but it's "operatively causing" ie. making a more than minimal contribution. That's what care worker would be doing by help C select sex worker, take out money etc. (Eadie QC)

"We are in territory where the offences of s.39 and s.53 are plainly and squarely in the frame. The COP cannot make an order that exposes C or public servants involved in care plan to those real and significant risks of criminality" (Eadie QC)

Eadie QC returns to s.53A offence as a means of protecting sex workers.

NIA and Women@thewell were joint intervenors whose submission made this point. NIA supports women exiting prostitution

niaendingviolence.org.uk/get-help/prost…

Women@theWell supports women whose lives are affected by prostitution

watw.org.uk

The hearing is now finished. We await a published judgment.

Here is the earlier judgment by Hayden J

bailii.org/ew/cases/EWCOP…

And the blog by @AstiHeaven about the hearing in the Court of Protection

openjusticecourtofprotection.org/2020/12/14/is-…