April 30, 2018
Joanna Hardy has concluded a complex and unusual trial involving allegations of attempted rape and sexual activity with a person with a mental disorder impeding choice.
The prosecution alleged sexual activity between the parties was unlawful by reason of the complainant’s lack of capacity to consent to it.
The case raised complex issues of capacity, fluctuating capacity and consent. It involved legal argument as to the difference between criminal and civil approach as to the issue of capacity and, in particular, the retrospective, case-by-case analysis required in criminal proceedings.
Joanna successfully applied to exclude the evidence of three prosecution expert witnesses arguing that they had collectively or individually used the wrong legal test, the wrong standard of proof and/or had assessed the complainant post-humously.
The expert evidence was excluded and the prosecution offered no evidence.