Care workers would be in danger of committing an offence if they arranged for a man with mental health disabilities to visit a sex worker, the UK's Court of Appeal judges have ruled.
Three appeal judges have overturned a ruling by a British High Court judge and upheld a UK government challenge.
Lord Burnett, the Lord Chief Justice, Lady Justice King and Lord Justice Baker outlined their decision in a written ruling published on Friday.
Mr Justice Hayden, who is based in the Family Division of the High Court in London, had earlier this year considered the 27-year-old man’s case at a hearing in the Court of Protection, where judges make rulings relating to people who lack the mental capacity to take decisions.
Mental capacity
The judge had concluded that that care workers would not commit an offence, under the 2003 the Sexual Offences Act if they made “practical arrangements” for the man to visit a sex worker in circumstances where he had the mental capacity to consent to sex, and decide to have contact with a sex worker, but not the mental capacity to make the arrangements himself.
Lawyers representing justice ministers challenged the ruling.
They argued that Mr Justice Hayden had misinterpreted legislation and said sanctioning the use of a sex worker was “contrary to public policy”.
Appeal judges concluded that legislation had been misinterpreted.
Lord Burnett said: “I would allow the appeal on the basis that the arrangements envisaged for securing the services of a sex worker would place the care workers concerned in peril of committing an offence contrary to section 39 of the Sexual Offences Act 2003.”
'Sensitive issues'
He said section 39 of the Sexual Offences Act was concerned with “sensitive moral and ethical issues in the field of penal policy”.
“One of its purposes is to throw a general cloak of protection around a large number of vulnerable people in society with a view to reducing the risk of harm to them,” he added.
“To the extent that the provision discriminates against people in (the man’s) position by comparison with others in the care of the state (or more broadly) it represents the considered view of Parliament striking balances in these difficult areas.”
Lady Justice King and Lord Justice Baker said they agreed.
Lord Burnett said in view of the conclusion reached on Mr Justice Hayden’s interpretation of legislation, it had been unnecessary for appeal judges to consider whether involvement by care workers in facilitating the man’s use of a prostitute would be “contrary to public policy”.
Mr Justice Hayden had ruled that the man could not be named in media reports of the case.
