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Cite as: (1999) 49 BMLR 124, 49 BMLR 124, [1999] 3 WLR 1194, [1999] 3 All ER 40, [1999] Crim LR 986, [1999] 2 Cr App R 214, [1999] EWCA Crim 835, [2000] QB 401

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ATTORNEY-GENERAL'S REFERENCE NO 3 OF 1998 [1999] EWCA Crim 835 (25th March, 1999)

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Strand

London WC2A 2LL

Thursday 25th March 1999

B e f o r e:

LORD JUSTICE JUDGE

MR JUSTICE SACHS

MR JUSTICE KLEVAN

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ATTORNEY-GENERAL'S REFERENCE NO 3 OF 1998

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(Computer Aided Transcript of Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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MR DAVID PERRY appeared on behalf of the Attorney-General

MR JAMES TURNER QC appeared as Amicus Curiae

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J U D G M E N T

(As Approved by the Judge)

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Crown Copyright

LORD JUSTICE JUDGE:

This is an application by Her Majesty’s Attorney General under section 36 of the Criminal Justice Act 1972.

The Court of Appeal is asked to give its opinion on the following point of law:

What has to be proved when an inquiry is embarked upon under the Trial of Lunatics Act 1883, to determine whether the Defendant “did the act or made the omission charged”?

The relevant facts giving rise to the reference are:

(i) The defendant was charged on an indictment containing a single count of aggravated burglary. This arose out of an incident in the early hours of 17th November 1997 in a residential property in Kent. The occupier and his family were asleep in their home when they were awoken by noises from the front door. The occupier went to investigate. He was confronted by the defendant who was asking to be let in. The defendant was a complete stranger and the occupier refused. With that the defendant, who was armed with a snooker cue, smashed open the front door and entered the hallway. The occupier responded by arming himself with a hammer and he shouted at the defendant to get back. The defendant advanced into the hallway and, while attempting to hit the occupier, waved the snooker cue with such force that it smashed into the wall and broke. He then dived towards the occupier, but missed and crashed into a side table. In the meantime police officers were called to the scene. The defendant retreated to the front door and wedged himself against it to prevent them from entering the premises. They eventually managed to overcome his resistance. They entered the property. It took at least five of them to handcuff and restrain him.

(ii) The police officers noted that the defendant was extremely agitated, sweating profusely, that his eyes were fixed and that he did not appear to hear what they were saying. Because of his general demeanour it was not possible for the police officers to interview the defendant. The charge was made in the presence of his solicitor.

(iii) A psychiatric report, dated 31st March 1998, from Professor Dontcher, a specialist forensic psychiatrist, was prepared at the request of the defendant’s solicitors. He concluded that at the time of the offence the defendant was “labouring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing. Neither did he know that what he was doing was wrong.”

(iv) Dr Phillip Joseph, a consultant psychiatrist, instructed on behalf of the Crown, prepared a report dated 18th May 1998. He recorded the defendant’s developing conviction that he was Jesus Christ, surrounded by evil and danger. He was “looking for a house with a light on because that would be a safe house where he would be protected from the evil. He said he could not go to a church because they are evil places at night. (He) eventually located a house with a light on, he parked his car and ran to the house taking with him a snooker cue for protection”. He remembered the occupier telling him to go away but he thought that the occupier did not understand what was happening and so tried to force his way into the house. He managed to kick the door in and after getting into the house tried to keep the door shut. He tried to explain that evil people were trying to get him but the occupier did not seem to understand. The man was shouting at him, but he could not remember what he was saying. “When the police arrived the defendant thought they were evil and they would hurt him and beat him up. He continued to believe that he was Jesus Christ and he thought that he would be taken away and crucified. He said he tried to keep the door closed in order to save himself”.

Dr Joseph concluded that the defendant was fit to plead, but that at the time of the offence he was “labouring under such a defect of reason due to disease of the mind that, although he knew the nature and quality of his act he did not know that what he was doing was wrong. He understood that he was breaking into a home because he believed that the occupant did not realise how much the defendant’s life was in danger and on entering the home he tried to keep the door closed to prevent evil people taking him away to crucify him. The disease of the mind from which he was suffering is a psychosis, probably a schizo affective psychosis.”

(v) In a report dated 5th June 1998 Dr David Somekh, another consultant forensic psychiatrist, entirely agreed that the defendant was legally insane at the material time. He added that the defendant was labouring under psychotic delusions and that he, the doctor, believed that “he genuinely did not recognise that what he was doing was wrong”.

On 9th June 1998 the defendant appeared in the Crown Court to stand his trial on a count of aggravated burglary. He was fit to plead. It was agreed on both sides that at the time when he entered the property on 17th November 1997 he was legally insane. At the beginning of the trial the judge was asked to rule on the question of what had to be proved to determine whether a defendant “did the act or made the omission charged”. Reluctantly, the judge felt that he was bound by the decision of this Court in R v Egan [1998] 1 CAR 121 to rule that the Crown had the burden of proving all the relevant elements of the offence, including mens rea.

After this ruling an application was successfully made to amend the indictment to add a count of affray, contrary to section 3 of the Public Order Act 1986, and the case proceeded to trial.

In due course the defendant gave evidence to the effect that he had gone to the premises to save the occupier. Supported by the appropriate written psychiatric material, the evidence of Professor Dontcher was to the effect that at the material time the defendant had been unable to form a criminal intent. Accordingly the judge ruled that there was no evidence of the required intent for either offence alleged in the indictment and he directed the jury to acquit the defendant. It is submitted that this ruling was wrong in law.

Unlike the judge, and indeed the Court of Appeal in Egan , we have had the advantage of a detailed and careful argument on behalf of the Attorney General from Mr David Perry. As the defendant did not wish to attend or be represented, Mr James Turner QC attended the court to assist as amicus curiae. He deployed a very helpful argument, the purpose of which was to ensure that the court was clearly aware of the potential consequences of any decision which we might reach. We are very grateful to both counsel for their submissions.

Apart from the question whether Egan was rightly decided, in summary, the issue raised by the Reference is whether, if insanity has been established, the Crown is required to prove both the actus reus and the mens rea of the offence charged against the defendant, or something less, and if so what that is.

We are informed that the procedure for a “special verdict” in cases of “insanity” was first introduced by the Criminal Lunatics Act 1800. The long title of this Act was “an Act for the safe Custody of Insane Persons charged with Offences.” The preamble begins by noting that individuals charged with serious offences, including felony, “may have been or may be of unsound mind at the time of committing the offence wherewith they may have been or shall be ........... charged, and by reason of such insanity may have been or may be found not guilty of such offence, and it may be dangerous to permit persons so acquitted to go at large.” Accordingly, where the defendant was insane at the time of the commission of the offence, the jury was required to make a specific finding to that effect. By section 3 of the Insane Persons Act 1840 these provisions were extended to those allegedly responsible for misdemeanours.

Taking it very briefly, this legislation acknowledged the essential principle that a proper conviction depended on proof of mens rea at the time when the criminal act was committed. If the defendant was of unsound mind at that time the right verdict, mens rea being absent, was an acquittal. However, to protect the public from an individual whose actions constituted the actus reus of a crime, an acquittal on the grounds of insanity was to be followed by custody during His Majesty’s pleasure.

In R v Oxford [1840] 4 State Trials (New Series) 498 Oxford was charged with high treason. He had fired two shots at Queen Victoria as she was being driven up Constitution Hill. The defence was insanity. The jury returned the verdict that Oxford was “guilty of discharging the contents of two pistols at Her Majesty; but whether they were loaded with ball or not there is not satisfactory evidence, and that the prisoner was of unsound mind at the time of committing the offence”. There then followed a discussion about the proper meaning of the Criminal Lunatics Act 1800, during which a number of the judges, obiter, expressed their views. In the end however Lord Denman CJ commented:

"But none of us mean to be bound by what we now say; it is too important a matter."

In those circumstance we are unable to derive very much assistance from the observations in Oxford.

The Trial of Lunatics Act 1883, was expressed to be an Act “to amend the law respecting the trial and custody of insane persons charged with offences”. Section 2(1) of the Act provides:

"Where in any indictment ........ any act or omission is charged against any person as an offence, and it is given in evidence on the trial of such person for that offence that he was insane, so as not to be responsible, according to law, for his actions at the time when the act was done or omission made, then, if it appears to the jury before whom such person is tried that he did the act or made the omission charged, but was insane as aforesaid at the time when he did or made the same, the jury shall return a special verdict to the effect that the accused was guilty of the act or omission charged against him, and was insane as aforesaid at the time when he did the act or made the omission."

The significant amendment was that the words “did the act or made the omission” replaced “committed the offence” in the Criminal Lunatics Act 1800. The difference is material. The original phrase, “committed the offence”, appears to encompass the relevant act, together with the necessary intent. By contrast, “act” and “omission” do not readily extend to intention. This change of language, apparently quite deliberate, has been left unamended for over a century and for all present purposes remains in force.

Insanity was not defined. By then the judges had answered the questions asked by the House of Lords in M’Naghten’s Case [1843] 10 Clarke & Finnelly 200. In answer to the second and third questions posed by the House of Lords, Tindall CJ responded on behalf of all the judges, save Maule J dissenting, "................. To establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong."

In the Divisional Court it was held recently that the common law defence of insanity was not available when mens rea was not an element of the offence ( DPP v H [1997] 1 WLR 1406). Moreover in the only reasoned speech in R v Sullivan [1984] AC 156, Lord Diplock suggested that the M’Naghten Rules had defined “the concept of mental disorder as negativing responsibility for crimes”. In modern language the relevant direction to the jury might more aptly be summarised as: “he did not know what he was doing”. He expressed his agreement with what was said by Devlin J in R v Kemp [1957] 1 QB 399, 407, that “mind in the M’Naghten Rules is used in the ordinary sense of the mental faculties of reason, memory and understanding”. He underlined that “the purpose of the legislation relating to the defence of insanity, ever since its origin in 1800, has been to protect society against recurrence of the dangerous conduct”.

The former special verdicts under the Trial of Lunatics Act 1883, together with the consequent powers of the court, were amended by the Criminal Procedure (Insanity) Act 1964 and the Criminal Procedure (Insanity & Unfitness to Plead) Act 1991.

Apart from their other effects these provisions alleviated some of the harsher aspects of the special verdict. As it amounted to an acquittal, there was no right of appeal. ( R v Felstead [1914] AC 534) Some of these considerations were repeated in R v Duke [1963] 1 QB 120, in the context of the then new defence to murder introduced by the Homicide Act 1957, diminished responsibility. The jury returned a verdict as follows, “Guilty of manslaughter but insane; not guilty of capital murder”. We do not know the basis on which the jury reached the conclusion that the killing of the victim, who was shot dead by the defendant, amounted to manslaughter rather than murder. This court, presided over by Lord Parker CJ, approved the form of verdict entered by the judge in accordance with existing practice: “Guilty of the act charged, but insane at the time of its commission.” Lord Parker described this as the ordinary form of verdict, adding that the court was not satisfied that a verdict in the form returned by the jury “was necessarily wrong”. In other words, although the actus reus of murder was established, the court was not required to reject a verdict defining the defendant’s action in terms of manslaughter.

No less significant, the consequence of the special verdict was that the defendant became a “criminal lunatic” to be hospitalised, usually in Broadmoor, for an indeterminate period. For an individual who represented no danger to the public - for example, for a petty thief of utter mental simplicity, the mandatory order would be wholly disproportionate. Indeed Sullivan himself pleaded guilty to assault occasioning actual bodily harm despite uncontradicted evidence that as a result of psychomotor epilepsy he was, in law, insane at the time of his actions. The sentence on his conviction, a probation order, with medical supervision, represented an altogether more advantageous outcome than the order which the court would have been obliged to make if the defence of insanity had been established.

The traditional form of verdict reflected the plain distinction drawn in the courts between the actus reus of an offence and the defendant’s state of mind at the time of his actions. As Lord Reading explained in R v Felstead , decided soon after the Criminal Appeal Act 1907, the special verdict under the 1883 Act resulted in an acquittal because, despite proof of the act charged, the offence had not been committed. As a result of insanity the defendant “was not responsible according to law for his actions at the time he did the act”. To remove any possible misunderstanding about what he meant, Lord Reading said, at 542

"This verdict means that, upon the facts proved, the jury would have found him guilty of the offence had it not been established to their satisfaction that he was at the time not responsible for his actions, and therefore could not have acted with a ‘felonious’ or ‘malicious’ mind. .......

The indictment ........ was for ‘feloniously’ and ‘maliciously’ wounding Lillian Ann Felstead, with intent to do some grievous bodily harm. It is obvious that if he was insane at the time of committing the act he would not have had a mens rea, and his state of mind could not then have been that which is involved in the use of the term ‘feloniously’ or ‘maliciously’ ........."

This speech was, in effect, adopted by each member of the House of Lords. Unless the statutory framework of the 1883 Act has been altered by subsequent legislation, which in our judgment it has not, Felstead remains good authority, binding on this court. Lord Reading’s observations highlight two distinct features of insanity cases. First, proof of mens rea is superfluous, and second, arising from the observation that but for his insanity the defendant would have been found guilty of the offence (our emphasis), that it would not have been sufficient for the jury to have been satisfied merely that the defendant caused the victim’s wound.

The Criminal Procedure (Insanity) Act 1964 amended the form of special verdict without altering the statutory ingredients of such a verdict under the 1883 Act. The acts or omissions constituting the offence had to be established. The special verdict related to the defendant’s state of mind at the time of the offence. Interestingly section 6 resolved one of the problems identified in Duke by providing

"Where on a trial for murder the accused contends

(a) that at the time of the alleged offence he was insane so as not to be responsible according to law for his actions: or

(b) that at the time he was suffering from such abnormality of mind ....... "

This statutory provision reflected the essential framework of the 1883 Act by maintaining the distinction between the physical act or actions, and the defendant’s state of mind at the time when he carried them out. The “alleged offence” (murder) suggests that attention is not restricted to consideration of the killing, or death, but extends to the killing, or death, in circumstances which would amount to murder. So far as diminished responsibility is concerned, the court nowadays proceeds on the basis that the circumstances of the death may be put in issue (by way of self defence or accident, as a complete defence, and by way of provocation, as a partial defence), while the defence continues to seek to establish, in the alternative, that the proper verdict would be manslaughter, by reason of diminished responsibility. We cannot see why in an appropriate case the same principle should not apply to the defence of insanity as it does to diminished responsibility which, like insanity, must be raised and established by the defence, and if applicable to a crime which depends on proof of unlawful killing, why it should not apply similarly to crimes where the consequences are less stark than death.

Apart from amending some of the provisions relating to special verdicts, the current arrangements for trials where the defendants have been found unfit to plead are now provided by the Criminal Procedure (Insanity & Unfitness to Plead) Act 1991. In language which echoes not the Criminal Lunatics Act 1800 but the 1883 Act, the jury must decide whether it has been proved that the defendant “did the act or made the omission charged against him as the offence”, and, if so, the jury should find accordingly. Unless the actus reus of the alleged offence is proved a verdict of “acquittal”, not a special verdict, will follow.

Therefore, whether the case is proceeding on the ground of insanity or unfitness to plead, by statute, the issue is identical, that is, whether or not the defendant did the act or made the omission charged. Such acts or omissions must be examined in the context of the offence alleged, but nothing in the legislation suggests that if the jury has concluded that the defendant’s mental state was such that, adapting Lord Diplock’s observation in Sullivan, his mental responsibility for his crime was negatived, it should simultaneously consider whether the necessary mens rea has also been proved. These mutually incompatible features may of course require examination by a jury when, contrary to the defence plea of insanity, the Crown is nevertheless seeking to establish guilt of the offence charged, but once it is decided that the defendant was indeed insane at the time of his actions, in accordance with Felstead, mens rea becomes irrelevant.

For the sake of completeness, we note that the same words “did the act or made the omission charged” appear in section 60(2) of the Mental Health Act 1960, now section 37(3) of the Mental Health Act 1983. This Act is obviously concerned with the same issues as the 1991 Act, which itself expressly refers to the Mental Health Act in the context of the 1883 Act. The pattern is entirely consistent with an overall framework designed to ensure, first, that those who are legally insane should not be deprived of their liberty by or, nowadays, made subject to orders of the courts exercising criminal jurisdiction, unless they have behaved in a way which constitutes the actus reus of a criminal offence and, second, if they have, to protect the public under a wide range of powers in which the focus is treatment, sometimes in the community, sometimes, where necessary, in the interests of public safety, in conditions of security.

In view of its impact on the decision of the judge in the present case, we must now consider Egan. Egan was found by the jury to be unfit to plead. The next stage in the judicial process was for a jury to decide whether he had done the act charged against him. The court readily agreed with both counsel that all the ingredients of the offence had to be proved, including the criminal intent. Ognall J said that the Crown was not exonerated “in an instance of this kind from proving that the defendant’s conduct satisfied to the requisite extent all the ingredients of what otherwise, were it not for the disability, would be properly characterised as an offence. Accordingly we are satisfied, and indeed both counsel agree, that although the words “the act” are used in the relevant legislation, the phrase means neither more nor less than proof of all the necessary ingredients of what would otherwise be an offence, in this case theft”.

No authority was cited. No reference was made to the statutory history or framework. Although the effects of mental disability arise at different stages, for insanity, at the time of the defendant’s actions, for fitness to stand trial, by definition, at the date of the trial, the statutory provisions are inextricably linked not only as to subject matter, but by the express references in the 1991 Act to the 1964 Act and the 1883 Act. Accordingly we doubt whether E gan can be distinguished on the basis that it concerned fitness to plead rather than insanity.

In his commentary on Egan [1997] CLR 226 Professor Sir John Smith QC offered his distinguished support for the conclusion reached by the Court of Appeal, and referred to the relevant passage in the Report of the Butler Committee on Mentally Abnormal Offenders (CMND. 6244, 1975). This Committee’s understanding was not apparently shared by the Home Office Minister who, during the relevant debate, said, “it would be unrealistic and even contradictory where a person is unfit to be tried properly because of his mental state, that the trial of facts would nevertheless have to consider that very aspect”. (See the illuminating article by Mackay & Kearns, The Trial of the Facts and Unfitness to Plead [1997] CLR 644).

We do not think it appropriate to decide the issue raised in this appeal by reference to the views expressed either by the Butler Committee or the Minister of State.

We understand that the decision in Egan is to be considered shortly in this court. We shall therefore restrict ourselves to saying that as a result of detailed analysis of the statutory framework, and the effect of the decision in Felstead, developed before us, but not before the court in Egan, it appears to have been decided per incuriam. In any event it has no application to cases of insanity.

Accordingly the judge’s reasoning in the present case was wrong. This does not quite answer the question posed in the Reference. Despite the potential difficulties illustrated by counsel in their arguments, the advantages of certainty, and the impossibility of providing a definitive answer to every conceivable case which may arise, in our judgment the criminal law should distinguish between providing for the safety of the public from those who are proved to have acted in a way which, but for their mental disability, would have made them liable to be convicted and sentenced as criminals, and those whose minds, however disturbed, have done nothing wrong. So far as the criminal courts are concerned, we do not accept that public safety considerations can properly be deployed to justify the making of orders against those who have done nothing which can fairly be stigmatised as a criminal act. Our concerns can be readily illustrated by practical examples. A person with mental disability, swimming in an over-crowded public pool, should not be at risk of the consequences of a finding of insanity when the alleged indecent touching of another swimmer may well have been accidental, or non-deliberate. On the other hand, where an apparently deliberate touching takes place in what on the face of it are circumstances of indecency, the individual in question (arguing that he was insane at the time) should not avoid the appropriate verdict on the basis of his own mistaken perception, or lack of understanding, or indeed any defences arising from his own state of mind.

The difficulties are, if anything, greater where the alleged crime is more serious. Where on an indictment for rape it is proved that sexual intercourse has taken place without the consent of the woman, and the defendant has established insanity, he should not be entitled to an acquittal on the basis that he mistakenly, but insanely, understood or believed that she was consenting. But when an individual surrounded by a group of much larger, aggressive and armed youths, strikes out and lands a blow on one of them who unfortunately falls to the ground sustaining a fatal head injury, it would be unjust if he were prevented from inviting the jury to consider that his violence might have been lawful, merely because, as a result of insanity, he believed that the group of youths was a mob of devils attacking him because (as the defendant in the present case believed) he was Jesus Christ. Excluding this individual’s own damaged mental faculty at the time, the jury might conclude that although he caused death, his actions were not unlawful, and so did not constitute the actus reus of murder, or manslaughter.

The answer to the question posed by the Attorney General is that when determining whether “the Defendant did the act or made the omission charged” for the purposes of the Trial of Lunatics Act 1883, and assuming insanity,

(a) The Crown is required to prove the ingredients which constitute the actus reus of the crime. Although different language is used to describe this concept, for present purposes, we respectfully adopt the suggestion in Smith & Hogan, Criminal Law, 8th Edition, at page 28, that it must be shown that the defendant:

"has caused a certain event or that responsibility is to be attributed to him for the existence of a certain state of affairs, which is forbidden by criminal law ......... "

(b) The Crown is not required to prove the mens rea of the crime alleged, and apart from insanity, the defendant’s state of mind ceases to be relevant.

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(There then followed an application to refer the case to the House of Lords which was adjourned pending the outcome of R v Antoine Pierre , due to be heard in April)

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