Case BriefsForeign Courts

United Kingdom Supreme Court: While expressing that, the fact that the other person must have the ability to consent to the sexual activity and must in fact consent before and throughout the sexual activity applies to everyone in society, Bench of Lord Briggs, Lady Arden, Lord Burrows, Lord Stephens and Lady Rose, JJ., laid down a very detailed decision on ‘consent’ with respect to sexual relations and the catch in the present matter was the diagnosis of autistic disorder of the appellant.


Present appeal raised issues of profound significance under the Mental Capacity Act 2005 for the appellant and others like him with impairment of, or a disturbance in the functioning of mind or brain which potentially renders them unable to make a decision for themselves in relation to having sexual relations.

Whether the information relevant to JB’s (appellant) decision to have sexual relations includes the fact that the other person must be able to consent and give and maintain consent throughout?

Factual Background

Appellant who was diagnosed with autistic spectrum disorder combined with impaired cognition expressed a strong desire to have a girlfriend and engage in sexual relations. His previous behaviour towards women-led the respondent local authority to conclude that he cannot safely have unsupervised contact with them.

Questions to be considered:

  • Does a person need to understand that their sexual partner must have the capacity to consent to sex?
  • Does the person also need to understand that their sexual partner must consent before the sexual activity starts and that their consent must continue throughout the sexual activity?


The function of Section 27 of the Mental Capacity Act 2005 is to identify certain decisions which are so personal to the individual concerned that no one may take them on his behalf if he is unable to take them for himself.

Court added that,

Section 27 only makes clear that “where a court finds that a person lacks the capacity to consent to sexual relations, then the court does not have any jurisdiction to give consent on that person’s behalf to any specific sexual encounter”.

Mr McKendrick sought to describe JB’s wish to initiate sexual relations as a desire rather than being a decision within Section 2(1) MCA.

To the above-stated, Bench expressed that a wish to initiate sexual relations can be described as a desire to do, but clearly a desire gives rise to a decision as to whether to fulfil that desire.

It may be helpful to observe that the terminology of a capacity to decide to “engage in” sexual relations embraces both (i) P’s capacity to consent to sexual relations initiated by the other party and (ii) P’s capacity to understand that, in relation to sexual relations initiated by P, the other party must be able to consent to sexual relations and must in fact be consenting, and consenting throughout, to the sexual relations.


Evaluation of JB’s capacity to make a decision for himself is in relation to “the matter” of his “engaging in” sexual relations. Information relevant to that decision includes the fact that the other person must have the ability to consent to sexual activity and must in fact consent before and throughout the sexual activity.

Supreme Court opined that under Section 3(1)(a) MCA, JB should be able to understand that information and should be able to use or weigh it as part of the decision-making process.

In the present matter, JB was unable to make a decision for himself in relation to the stated matter because of an autistic impairment of his mind. Though, Court declined to make a final declaration that JB does not have the capacity to make a decision to engage in sexual relations.

Hence, the matter be remitted to the judge for reconsideration and the appeal was dismissed. [A Local Authority v. JB, [2021] 3 WLR 1381, decided on 24-11-2021]

Advocates before the Court:


John McKendrick QC Ian P Brownhill Helen Law (Instructed by Enable Law)


Vikram Sachdeva QC

Richard Whittam QC Alexander Ruck Keene
Fiona Paterson (Instructed by Wolferstans Solicitors)

1st Intervener (Respond) (written submissions only) Aswini Weereratne QC Sophy Miles Mary-Rachel McCabe Caragh Nimmo (Instructed by Irwin Mitchell)

2nd Intervener (Centre for Women’s Justice) (written submissions only)
Victoria Butler-Cole QC
Tim James-Matthews (Instructed by Centre for Women’s Justice)

Case BriefsHigh Courts

Punjab and Haryana High Court: Arvind Singh Sangwan, J., dismissed a petition wherein the petitioner/Advocate filed a petition seeking legal action against Prince Harry Middleton and to direct the United Kingdom Police Cell to take action against him, as despite a promise to marry the petitioner, said promise has not been fulfilled.

Prayer for his arrest was also placed so that no further delay could occur in their marriage.

High Court expressed that the instant petition was nothing but just a day-dreamer’s fantasy about marrying Prince Harry.

The petition mentioned some emails between the petitioner and Prince Harry, in which the person, sending the email stated that he promised to marry soon.

When Court enquired whether the petitioner had ever travelled to the United Kingdom, the reply was negative and petitioner only stated that she had a conversation through social media, where she had even sent messages to Prince Charles that his son Prince Harry was engaged with her.

On perusal of the annexures wherein the attachments of so-called conversations were attached it was noted that the same were not even true copies as the said portion had been deleted/erased.

Further, the Bench expressed that:

It is well-known fact that fake IDs are created on various social media sites like Facebook, Twitter etc. and authenticity of such conversation cannot be relied upon by this Court. There is every possibility that so-called Prince Harry may be sitting in a Cyber Café of a village in Punjab, looking for greener pastures for himself.

Hence, Court found no ground to entertain the present petition and could only show sympathy for the reason that petitioner believed such fake conversation to be true.

In view of the above reasons, present petition was dismissed. [Palwinder Kaur v. Prince Harry Middleton, 2021 SCC OnLine P&H 756, decided on 08-04-2021]

Advocates before the Court:

Ms Palwinder Kaur, Advocate-petitioner in person

Case BriefsInternational Courts

European Court of Human Rights (ECHR): In an interesting case regarding child trafficking the Fourth Section of ECHR had came up with a landmark ruling. The Bench, while acknowledging the right to protection of victims of trafficking ruled that,

“It is axiomatic that the prosecution of victims of trafficking would be injurious to their physical, psychological and social recovery and could potentially leave them vulnerable to being re-trafficked in future.”

 Facts and Findings

The instant case relates to two minor applicants, both of whom were convicted for criminal offences connected to their work as gardeners in cannabis factories. The Trial had been initiated against both the applicants and both of them, due to incompetent legal aid had pleaded guilty. The Crown Prosecution Service (CPS) persuaded to prosecute them even after being made aware by the United Kingdom Border Agency that there were reasonable grounds for believing that the first applicant had been trafficked. Similarly, the second applicant as well was recognised as victim of trafficking by the designated Competent Authority. The CPS while concluding that there was no credible evidence that the applicants had been trafficked, sentenced the first applicant to twenty months detention in a young offenders’ institution and eighteen-month detention and training order to the second applicant.

Similarly, the Court of Appeal opined that Article 26 of the Anti-Trafficking Convention was directed at sentencing decisions as opposed to prosecutorial decisions and could not, therefore, be interpreted as creating immunity for victims of trafficking who had become involved in criminal activities the court dismissed their appeal against conviction. However, the Appellate Court had reduced the sentence of the first applicant as a twelve-month custodial sentence and considering the young age of the second applicant his punishment was reduced as well to a four-month detention and training order. Being aggrieved by the conviction order the applicants reached the Supreme Court which had refused their applications.


The Bench noted that the first applicant was discovered by police at a cannabis factory during the execution of a drug warrant, thus, the authorities should have been alert to the possibility that he – and any other young persons discovered there – could be a victim of trafficking. The CPS failed to consider that the relevant nexus had not been established between the trafficking and the criminal offence; rather, it repeatedly found that there was no clear evidence that the first applicant had been trafficked. The Court remarked,

“The prosecution of victims, or potential victims, of trafficking may, in certain circumstances, be at odds with the State’s duty to take operational measures to protect them where they are aware, or ought to be aware, of circumstances giving rise to a credible suspicion that an individual has been trafficked.”

Even though the first applicant was subsequently recognised by the Competent Authority as a victim of trafficking, the CPS, disagreed with that assessment without providing adequate reasons for its decision and the Court of Appeal, relying on the same inadequate reasons, twice found that the decision to prosecute him was justified.

Similarly, the competent authority had subsequently affirmed the possibility of the second applicant being a victim of trafficking at the time of his arrest. Observing that both the applicants were minor at the time of trafficking, the Bench stated,

“Child victims of trafficking are a particularly vulnerable group who may not be aware that they have been trafficked, or who may be too afraid to disclose this information to the authorities.”

 The State had a positive obligation to take operational measures to protect such victims; however, instead the criminal proceedings were allowed to proceed against them in the instant case.

Can Right to Fair Trial be Waived by Pleading Guilty?

On the plea of State that victims right to a fair trial was waived by pleading guilty, the Court was of the view that the victims had been deprived of a fair trial because the police had failed to undertake an investigation capable of providing them with exculpatory evidence, even though there was a credible suspicion that they had been trafficked; and the CPS’s assessment of the case was fundamentally flawed because it ignored the indicators of trafficking which were present.

It is true that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will the entitlement to the guarantees of a fair trial. However, such a waiver must be established in an unequivocal manner and it must not run counter to any important public interest.

Furthermore, given that trafficking threatens the human dignity and fundamental freedoms of its victims and is not compatible with a democratic society and the values expounded in the Convention, in the absence of any assessment regarding veracity of trafficking any waiver of rights by the applicants would run counter to the important public interest in combating trafficking and protecting its victims.

Whether the Trial was Prejudiced?

The Court opined that in respect of both applicants the reasons given by the CPS for disagreeing with the Competent Authority were wholly inadequate. Also, though the applicants invoked Article 4 of Anti Trafficking Convention the Court of Appeal did not consider their cases through the prism of the State’s positive obligations under that Article. The Bench expressed,

“Such an approach would in effect penalise victims of trafficking for not initially identifying themselves as such and allow the authorities to rely on their own failure to fulfil their duty under Article 4 of the Convention to take operational measures to protect them.”

Under Article 4 of the Convention, it was the State which was under a positive obligation to both to protect victims of trafficking and to investigate situations of potential trafficking and that positive obligation was triggered by the existence of circumstances giving rise to a credible suspicion that an individual has been trafficked and the State had blatantly failed to meet that obligation.

 The victims cannot be required to self-identify or be penalised for failing to do so.

Consequently, it had been held that there had been a violation of Articles 4 and 6 of the Anti-Trafficking Convention on account of the failure of the respondent State to fulfil its positive obligations under Article 4 to take operational measures to protect the victims of trafficking. Hence, both the victims were granted the sum of EUR 25,000 each in respect of non-pecuniary damage. Additionally, the cost of EUR 20,000 was also imposed on the state that was to be paid to the applicants.[V.C.L. and A.N. v. United Kingdom, Applications nos. 77587 of 12, decided on 16-02-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

COVID 19Hot Off The PressNews

In view of emerging COVID-19 situation in the United Kingdom, the competent authority has temporarily suspended flight to/from the United Kingdom with effect from 23:59 hrs IST of 22-12-2020. Therefore, no flights from the United Kingdom will land in India after 23:59 hrs IST of 22-12-2020. The airline shall enforce this at the port of initial departure.

Consequently, flights from India to the United Kingdom shall also remain suspended.

However, the restriction shall not apply to international all-cargo operations and flights specifically approved by DGCA.

Airlines operating flights to/from India from other countries shall not board any passenger travelling from United kingdom to India and shall ensure that no passenger coming from U.K. is boarded in flight for any destination in India either directly or indirectly.

During the transition period i.e.e up to 23:59 hrs of 22-12-2020, all passengers arriving to India from the United Kingdom shall be compulsorily subjected to RT-PCR Test at the arrival port in India. Passengers found COVID positive shall be quarantined as per guidelines issued by the Ministry of Health and Family Welfare.  All medical costs incurred shall be borne by the passengers.

All airlines operating passenger services from the United Kingdom to India shall ensure strict compliance of the above instructions and shall make an in-flight announcement.

The above-said is a temporary measure and shall be in force till 31-12-2020.


Office of the Director-General of Civil Aviation

[Circular dt. 21-12-2020]

Hot Off The PressNews

As reported by the media, Sajid Javid the UK Home Secretary signed the extradition order of Vijay Mallya on 04-02-2019.

Westminster Magistrates’ Court had sent Vijay Mallya’s case to the Home Secretary for a decision on whether to order extradition.

Mallya said he intends to appeal the decision, “After the decision was handed down on December 10, 2018, by Westminster Magistrates Court, I stated my intention to appeal. I couldn’t initiate appeal process before a decision by Home Secretary. Now I’ll initiate the appeal process”.

Mallya has 14 days’ time to appeal against his extradition in a higher court.

Vijay Mallya was facing charges of fraud, money laundering and violation of Foreign Exchange Management Act (FEMA).

[Source: Economic Times]
Case BriefsForeign Courts

Supreme Court of United Kingdom: In the matter concerning the interpretation of Section 83 of the Nationality, Immigration and Asylum Act 2002, Lord Hughes held that Section 83 can be read as a matter of language a number of ways, some are more natural than others. “In particular, Section 83 appears to focus on the time when the asylum claim has been rejected, for it is concerned with appeals against this decision, and then to ask whether, when a claimant wishes to appeal, the condition in subsection 1(b) is met.”

It was also stated that the purpose of Section 83 is very clear that provide an additional and more targeted right of appeal beyond the ordinary one created by Section 82 and that Section 83 was molded to create an extra right to appeal for those who have a longer period to leave. Thus the most valid interpretation of Section 83 is that grants of leave to remain bring the claimant within the section providing that such leave totaled more than 12 months counting from the date of refusal or later grant, and whether the grants were made before or after refusal.

In the present case, the appellant, a citizen of Uganda, was granted limited leave to remain in the United Kingdom as a student.  Before that time had expired, he applied for asylum on the grounds that the Ugandan government’s treatment of him might be affected because of his brother was suspected of being involved in terrorist activities in Uganda. His appeal was rejected by the Secretary of State, she contented on case AS (Somalia) v Secretary of State for the Home Department [2011] EWHC 627 (Admin) where it was said that no more than 12 months’ leave associated with the first refusal of asylum, and no refusal of asylum associated with the much later grant of indefinite leave. The present appellant plea was too dismissed by the Court of Appeal. [MS (Uganda) v. Secretary of State for the Home Department; [2016] UKSC 33; decided on 22nd June, 2016]