R v Cooper (Gary Anthony)
House of Lords
Citations:  UKHL 42;  1 WLR 1786.
The claimant was severely mentally ill. She had various personality disorders, a low IQ and a history of substance abuse. She left a community mental health resource to meet with the defendant, who found her in a highly distressed state. The defendant took her back to a friend’s house, where he gave her cocaine. He then asked her if she wanted to have sex, and she agreed.
The defendant was tried for sexual activity with a person with a mental disorder impeding choice under s.30 of the Sexual Offences Act 2003. This provision criminalises sexual touching of a person who is ‘unable to refuse because of or for a reason related to a mental disorder’ where the defendant knew or reasonably ought to have known this. s.30(2) states that:
(2) B is unable to refuse if— (a) he lacks the capacity to choose whether to agree to the touching (whether because he lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason), or (b) he is unable to communicate such a choice to A.
At trial, a psychiatrist gave evidence that the complainant would not have been able to give proper consent due to her mental illnesses, intellectual disability, and agitated state. The complainant testified that she agreed to have sex because she was panicking and irrationally thought she was going to die. The judge directed the jury that they should conclude that the complainant did not consent if the she:
- Lacked capacity to consent, including due to an irrational fear arising from her mental disorders; or
- Was unable to communicate her lack of consent for the same reason, notwithstanding the fact that she had not lost her powers of speech.
The jury convicted. The defendant appealed his conviction successfully before the Court of Appeal, and the prosecution appealed to the House of Lords.
- Does lack of capacity to choose include an irrational fear which prevents the exercise of choose?
- Does ‘an inability to communicate’ include non-physical impediments to communication?
The House of Lords restored the conviction. s.30(2)(a)’s reference to ‘or for any other reason’ includes a wide range of circumstances in which a mental disorder might impede autonomous choice. This includes an irrational fear which prevents free choice.
The Lords also held that s.30(2)(b)’s reference to an ‘inability to communicate’ was not limited to people who are physically unable to communicate. The trial judge’s directions were therefore correct and the defendant was properly convicted.