When does Art.8 ECHR go too far?
Sometimes, we come across a case which just fascinates us from a moral as well as a legal perspective and we thought we’d share just such a case with you. In A Local Authority v JB Mrs Justice Roberts had to examine restrictions placed on a 36 year old man who suffered impaired cognition and autism. He lived in supported accommodation with a care plan which imposed considerably limitations on his ability to access the local community, third parties and social media and the internet. He argued that the restrictions interfered with his basic rights to a family and private life in contravention of Article 8 ECHR. He wanted to be able to find and pursue a relationship with a girlfriend.
The court looked at his capacity to consent to sexual relations and in particular his understanding of consent in relation to the other person engaged in sexual activity with him. While it was agreed that the applicant had an understanding of the need for consent it was argued that he did not understand the impact of the criminal law on the issue of consent. Mrs Justice Roberts was clear that such understanding was not an essential prerequisite to allowing the man the opportunity to pursue his goals in terms of relationships. She said:
“In my judgment, to argue that a full and complete understanding of consent (in terms recognised by the criminal law) is an essential component of capacity to have sexual relations is to confuse the nature or character of a sexual act with its lawfulness.”
This judgment was made despite a report from a clinical psychologist indicating that the man represented a “moderate risk” of committing a sexual offence against women. The judge argued that it was wrong to “impose a burden which a capacitious individual might not share” and that the man was “entitled to make the same mistakes which all human beings can, and do, make in the course of a lifetime.”
So what do you think? The court has certainly avoided any risk of being called unduly paternalistic! Has it gone mad in allowing this man the opportunity to pursue sexual relationships? Have women been put an unjustifiable risk? This could be a really useful case to which to refer if you have to answer an essay question about whether the courts have got the balance right in protecting Art.8 rights. Watch out for an appeal though. The local authority is expected to appeal and this is a case where a ruling from the Supreme Court could be just what we need.
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