At the beginning of April 2019, a Press Association report of an interim hearing at the Court of Protection provoked a number of newspaper headlines and outraged reactions, because it quoted a High Court judge, Mr Justice Hayden, as having spoken of a “fundamental human right” of a man to have sex with his wife. This was in the course of a preliminary hearing in the Court of Protection, a court which makes decisions about and on behalf of adults who lack mental capacity to make decisions themselves. The Court of Protection can decide whether or not an adult lacks mental capacity to make decisions about sexual relations, and if he or she does not, make orders which protect the adult as far as possible from having sexual relations, by imposing restrictions on their freedom of contact with other people. The Court cannot make a decision about whether or not to have sexual relations on behalf of an incapacitated adult, as that is an intimate personal decision which no-one can take on behalf of anyone else. The law’s approach to capacity to marry is exactly the same.
The current general transparency rule in the Court of Protection is that the media, legal bloggers and the public may attend and report on hearings, but the identity of the people involved in the case must remain anonymous. In this case, a local authority had asked the Court to decide whether a woman who had learning difficulties had lost the mental capacity to continue to have sexual relations with her husband. Her husband had offered to abstain from having sex with her until the issue was decided. The judge was concerned that he should not formally undertake to do this without a full hearing of the question of whether or not his wife lacked capacity. This is because a formal undertaking to court, like a court’s own order, carries the risk of imprisonment for contempt of court if it is broken. That was the context in which the reference to the husband’s “fundamental human right” was made. It is obvious that what is in any event a difficult and sensitive issue for a court to decide must be exceptionally difficult and sensitive where it concerns the mental capacity of a member of a couple who are already married, rather than a young adult at the outset of their sexual maturity or at the beginning of a relationship. The legal concept of lacking mental capacity is defined as an inability to take decisions, and the question of whether or not an adult has mental capacity is specific both to the decision in question, and to the time at which capacity is assessed. Assessing capacity to make a decision about sex is not only difficult and sensitive because it is concerned with people’s ability to make a choice about an intimate act, but because of all the decisions that adults can take in their personal lives, it is probably the one that is most susceptible to impulse and unwise choice, even for people who unquestionably have mental capacity to decide for themselves.
Following the first newspaper reports of this hearing, amongst other high-profile commentators who reacted to it, MP Thangam Debbonaire said, in a series of tweets on 2 April, the first of which was ‘liked’ over 2,000 times:
It was only in the third of these that she acknowledged that the case sounded complex and needed careful thought, but she continued to criticise the “judge’s values” and “misogynist and inaccurate message”, without any further reflection on whether she really had adequate evidence for reaching a conclusion on the judge’s values or on any intended “message”. Even without any further material about this particular case, she could readily have found other published judgments of the same judge, dealing with similar sensitive issues, and publicly available information about him (for example that he had been a member of the Bar Lesbian and Gay Group at the date of his appointment as a judge in 2013), which might have led her to doubt the haste of her conclusion. Tor Butler-Cole QC pointed out in response to Thangam Debbonaire’s tweets
On 6 April, the Transparency Project posted a careful explanation of the case and linked to a range of informed comment which had by then been published on it.
On Tuesday 7 May, there was a further hearing in the case, and a published judgment was posted on BAILII a week later on Tuesday 14 May, as Re NB (Consent to Sex)  EWCOP 17.
This is not a final judgment deciding the question of whether the woman, now referred to as NB, does or does not have capacity to have sexual relations with her husband, now referred to as AU. The judge made it clear that he wanted to think further about the legal arguments he had heard, and the purpose of producing an interim judgment was to allow AU to understand the judge’s approach to the issue and put forward legal argument, through an advocate, if he wished to. But publication of the judgment has served another purpose, which is to give an authoritative judicial narrative of the hearing of 29 March, and to criticise the “irresponsible” media coverage of that hearing, and set out its consequences. As the judgment explains, NB and AU have been long married, and NB “very much enjoys the status of marriage, is affectionate to her husband and, on occasion, initiates sexual relations” (paragraph 6). Nevertheless, genuine concerns had been raised about her capacity to consent to sex, and as the judge said, that is the primary issue the court has to decide. It is clear from the judgment that this decision involves not only weighing up the evidence, but considering the current state of the law on capacity to consent to sexual relations, in particular the issue of whether the test of capacity should or should not be “person-specific”. This issue arises especially acutely in this case, because there is no question of NB having a sexual relationship with anyone other than her husband.
The judge described the hearing of 29 March in these terms – note in particular paragraph 8:
7. On 29 March NB was represented by Mr Bagchi via the Official Solicitor and the Local Authority was represented by Mr Walsh. The husband, AU, appeared but was unrepresented. It was immediately obvious that he was highly anxious. All the professionals in the case have noted that. He is a man in his early 50’s who has never been in any trouble with the police. It is agreed that there have been no concerns expressed by any of the professionals in relation to his behaviour either recently or historically.
8. This couple found themselves in a challenging situation in which their private and sexual life was being scrutinised by a variety of professionals. For entirely understandable reasons AU was, in my assessment, both frightened and embarrassed when he came to court. When this case came before me on 29 March there had been an agreement between AU, Mr Walsh and Mr Bagchi that the case would proceed by way of AU giving an undertaking to the court not to sleep with his wife. In particular and, for the avoidance of any ambiguity, AU was being invited to give a formal undertaking not to have sexual intercourse with his wife. It is, of course, the case that the breach of a formal undertaking to the Court is punishable in contempt proceedings and may, if appropriate, result in a period of imprisonment. My concern was that if these were the proposed answers to the challenges presented by this situation it may be that the wrong questions were being asked.
9. Throughout the investigative process the couple have continued to live together. NB’s daughter who is 20 years old lived at the flat with them. The proposal was that this arrangement should continue, albeit all agreed that NB did not have capacity to marry.
10. On 29 March the case was only listed for a Directions hearing. I was sufficiently concerned by what I heard to take the decision to further adjourn the case and to encourage the Official Solicitor to use his best endeavours to enable AU to get legal representation. I have no doubt that those best endeavours were deployed. A solicitor was identified, she made numerous attempts to speak with AU and offered to attend at his home to take instructions.
The concern that the judge expressed in paragraph 8 about AU being put in a position where he might be liable to imprisonment for contempt of court is consistent with comments made by Court of Appeal judges in another Court of Protection case which attracted a great deal of media attention: that of Teresa Kirk in 2016-7. Both cases suggest that the Court of Protection should try not to make orders which carry a liability of imprisonment for contempt of court against people of good character who believe they are acting in the best interests of an incapacitated adult.
The judge went on to specifically address the media coverage and its consequences
11. Unfortunately, the case attracted a great deal of media coverage, this notwithstanding that no argument had been heard and no Judgment delivered. A great deal of the comment was sententious and, in some instances, irresponsible. It is considered, by the Official Solicitor and the applicant Local Authority, that the impact of that publicity frightened AU very considerably, leading him to believe that he was likely to be sent to prison. He has left the party’s flat and disengaged with these proceedings. It seems that he visited a solicitor, local to where he lived, who may have given him poor advice.
As far as I am aware, no newspaper or broadcaster has reported the publication of this judgment, nor have any of the influential figures who were quick to excoriate the judge for his apparent misogyny commented on it on social media or elsewhere, or revisited their initial reactions, other than Thangam Debbonaire MP, who, when pressed for a response via Twitter said
This prompted the response
It is appallingly clear that in this case, transparency in court proceedings about the intimate life of vulnerable adults, coupled with sensationalised reporting and comment, has caused at least one, and probably both of them harm. This is the worst possible consequence of promoting greater openness in court proceedings, a step which can only be justified if it is in the public interest. Although the original Press Association report appears to have accurately summarised the nature of the hearing and its outcome, the quoted words about a man’s fundamental human right to have sex with his wife were relentlessly highlighted in headlines and made the focus of newspaper reports, and taken and circulated from there in tweets of instant and aggressive reaction only to the quoted words. The story has also found its way into more wide-ranging critiques, such as this, published in the Observer on 12 May 2019, and headed “Welcome to Planet Rumpole, where rank misogyny still holds sway”. Most commentators also seem to have treated the judge’s words as if they had the weight of being a part of a formal ruling or judgment, rather than taken from the discussion between judge and advocates which is part of every civil court hearing, particularly those which deal with managing what is to happen next in a case, rather than being a final hearing. Of course, even in this sort of dialogue, there is a certain level of formality and propriety in speech expected of both judge and advocates. But it is unrealistic to expect that nothing said in court in these discussions will ever be misphrased or initially misunderstood. And quoting a fragment of this sort of conversation as a headline or soundbite may be as potentially misleading as promoting a book or a film by carefully selecting a few positive words or phrases from a generally negative review. The judge was right to condemn the media coverage as “irresponsible”. And for all the transparency there may be between a court hearing and the presence of journalists or the public, there seems to be an impenetrable glaze of opacity between the well-intentioned attempts of lawyers and legal bloggers to explain the law, and the no less well-intentioned public figures who reacted as they did to the headlines in this case. It was obvious to any lawyer who had any knowledge of the Court of Protection and its decisions on capacity to consent to sexual relations that everyone present in the court would have known that the judge was neither ignorant of the law nor misogynistic, and was speaking of a man’s right to consensual sex with his wife, if she herself had capacity to give or withhold that consent. MPs, campaigners and mainstream journalists have far more reach and influence than lawyers and legal bloggers. It is exasperating to see them seize a headline and use it to perpetuate myths and caricatures of judges and their “values” when, certainly in this case, these myths and caricatures had no basis in reality, and when there was readily available information which could have dispelled them. The least that such influential commentators might now do is to reflect and acknowledge the harm done in this case, and consider how it might be avoided in the future. The world of opinion and comment needs less, not more outrage fuelled by ignorance and a rush to condemnation.