The Supreme Court will next week (24 November) hand down a key ruling on whether, to have capacity to decide to have sexual relations with another person, a person needs to understand that the other person must have the capacity to consent to the sexual activity and must in fact consent before and throughout the sexual activity.
The background to the case of A Local Authority (Respondent) v JB (by his Litigation Friend, the Official Solicitor) (AP) (Appellant) is that the appellant, JB, is a 37-year-old single man with a complex diagnosis of autistic spectrum disorder combined with impaired cognition.
JB has expressed a strong desire to have a girlfriend and engage in sexual relations. However, his previous behaviour towards women has led the respondent local authority to conclude that he cannot safely have unsupervised contact with them.
The local authority filed an application in the Court of Protection seeking declarations as to JB’s capacity in various areas, including his capacity to consent to sexual relations.
The expert evidence was that JB understands that mechanics of sexual acts and the risks of pregnancy and sexually transmitted disease, but his "understanding of consent is lacking".
In the Court of Protection, Mrs Justice Roberts held that it was not necessary for a person to understand the need for their sexual partner’s consent and declared that JB has capacity to consent to sexual relations.
In A Local Authority v JB (Rev 2)  EWCA Civ 735 the Court of Appeal disagreed. It held that, to have capacity to engage in sexual relations, a person needs to understand that their sexual partner must have the capacity to consent to the sexual activity and must in fact consent before and during the sexual activity.
Lord Justice Baker said the judge's strong commitment to the principle of autonomy, and the right of disabled people to enjoy life's experiences to the full, was "wholly commendable" and a view that he had expressed in a number of previous judgments.
The Court of Appeal judge said that it was therefore "with considerable regret" that he parted company with the judge on a number of her observations:
"106. First, I do not consider it appropriate to view these issues through "the prism of the criminal law". In fairness to the judge, I think she was understandably led into this approach by dicta in previous reported cases and by submissions given to her by counsel, who in turn were influenced by the earlier cases. But in my view it is unnecessary and inappropriate to consider whether "a full and complete understanding of consent in terms recognised by the criminal law" (my emphasis) is an essential component of capacity to have sexual relations. What is needed, in my view, is an understanding that you should only have sex with someone who is able to consent and gives and maintains consent throughout. The protection given by such a requirement is not confined to the criminal legal consequences. It protects both participants from serious harm.
107. Secondly, although some capacitous people might struggle to articulate the precise terms of the criminal law in this regard, I do not agree that capacitous people have difficulty understanding that you should only have sex with someone who is able to consent and who gives and maintains consent. I respectfully disagree with the judge that this is "a refined or nuanced analysis which would not typically inform any decision to consent to such relations made by a fully capacitous individual". Nor is it "a burden which a capacitous individual may not share and may well be unlikely to discharge". It is something which any person engaging in sexual relations has to consider at all times. This is not altered by the fact that some capacitous people choose to ignore the absence of the other person's consent and proceed with sexual activity anyway (thus probably committing a criminal offence such as sexual assault or even rape).
108. Thirdly, I do not think it right to reject the requirement of an understanding as to the necessity of mutual consent to sex on the grounds that there are "mistakes which all human beings can, and do, making the course of a lifetime". There may be occasions, I suppose, where someone genuinely makes a mistake about whether their sexual partner is giving or maintaining consent. But that circumstance, if it ever arises, is very different from the situation where one person does not understand that the other person has to give and maintain consent.”
Lord Justice Baker, with whom Lord Justice Singh and Sir Andrew McFarlane agreed, therefore allowed the appeal and set aside the declaration that JB had capacity to consent to sexual relations.
JB appealed to the Supreme Court.
The case was heard on 15 July 2021 by a panel comprising Lord Briggs, Lady Arden, Lord Burrows, Lord Stephens and Lady Rose.