In The Secretary of State for Justice v A Local Authority & Ors [2021] EWCA Civ 1527, the Court of Appeal has recently overturned the landmark decision of the Vice President of the Court of Protection, which had concluded that care workers would not commit a criminal offence under section 39 of the Sexual Offences Act 2003 (SOA 2003).

The Vice President [2021] EWCOP 25 considered the legislative purpose of the SOA 2003 and the Code for Crown Prosecutors and found that the care plan contemplated was far removed from the mischief of the relevant provisions. Moreover, the Vice President concluded that C’s Article 8 rights were engaged and that a restrictive interpretation of Section 39 of the SOA 2003 would apply disproportionately to those with a mental disorder (therefore amounting to an Article 14 violation).

However, the Court of Appeal (Lord Chief Justice Lord Burnett, sitting with Lady Justice King and Lord Justice Baker) allowed the Secretary of State for Justice’s appeal, ruling that ‘the words “causes or incites” found in section 39 of the 2003 act carry their ordinary meaning and do not import the qualifications identified by [Hayden J]’.

Sam Karim QC and Aisling Campbell instructed by Leah Selkirk of Hill Dickinson, represents the Clinical Commissioning Group.

If you require any further information contact, Steve Loxton, [email protected]

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