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Cite as: [2018] MHLR 81, [2017] EWHC 2855 (Admin), [2018] QB 998, [2018] 2 WLR 1159, [2018] Crim LR 336, [2017] WLR(D) 763, [2018] 1 Cr App R 16

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		Neutral Citation Number: [2017] EWHC 2855 (Admin)
		Case No: CO/2769/2017

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

16/11/2017

B e f o r e :

LORD JUSTICE IRWIN
MR JUSTICE JULIAN KNOWLES
____________________

Between:

	ALINE LOAKE	Appellant
	- and -
	CROWN PROSECUTION SERVICE	Respondent

____________________

Sam Thomas (instructed directly) for the Appellant
Martyn Bowyer (instructed by The Crown Prosecution Service) for the Respondent

Hearing dates: 25 October 2017
____________________

HTML VERSION OF JUDGMENT APPROVED
____________________

Introduction

This is the judgment of the Court to which both of us have contributed.

This case concerns an issue of law which arose in the Crown Court at Blackfriars. The Appellant was convicted of harassment contrary to Section 2 of the Protection from Harassment Act 1997 ("the PFHA") by Highbury Corner Magistrates on 13 October 2015. She is a lady of no previous convictions. The harassment consisted principally of a very large number of text messages sent over a period of time to her husband, from whom she was separated. District Judge McPhee imposed a restraining order, fined the Appellant £775, ordered her to pay compensation costs and a victim surcharge.

The PFHA provides, so far as material:

"1. Prohibition of harassment

(1) A person must not pursue a course of conduct—

(a) which amounts to harassment of another, and

(b) which he knows or ought to know amounts to harassment of the other.

…

(2) For the purposes of this section … the person whose course of conduct is in question ought to know that it amounts to … harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.

…

2. Offence of harassment

(1) A person who pursues a course of conduct in breach of section 1(1) … is guilty of an offence."

The Appellant appealed against her conviction and sentence and the appeal was listed at the Blackfriars Crown Court, before Mr Recorder Nicklin QC, as he then was, and two magistrates. The Appellant intended to contend before the Court, as she had done below, that she was not guilty of the offence of harassment, by reason of her insanity at the relevant time. She had available psychiatric evidence upon which she intended to rely. There has never been any suggestion that she was not fit to plead or to stand trial.

Before evidence was called, the Court invited submissions from counsel on the question whether the defence of insanity was available for such an offence. Each side was given time to consider submissions.

As recorded at para 5 of the Stated Case, the prosecution submitted on the basis of the authorities of R v Colohan [2001] EWCA Crim 1251 and Director of Public Prosecutions v Harper [1997] 1 WLR 1406 that the offence under Section 2(1) of the PFHA required no proof of mens rea that could be negatived by a defence of insanity, and that the assessment of whether the Appellant ought to have known that her actions amounted to harassment was wholly objective. As such, the prosecution contended that the defence was not available in answer to the charge.

On behalf of the Appellant it was contended that the M'Naghten Rules (which we discuss in detail below) apply not only to the mens rea required for an offence but also to the actus reus as well. The defence cited Blackstone's Criminal Practice 2017 at A3.23 et seq and in particular para A3.32.

Following those submissions, the Court ruled in an extempore judgment that as a matter of law, the defence of insanity was not available for an offence of harassment. In a clear and elegant stated case, the Recorder summarised the basis of the Court's decision as follows:

"6.2 To be convicted of the offence under section 2(1), the prosecution had to prove (a) that the Applicant had pursued a course of conduct amounting to harassment; and (b) either that the Applicant knew that the act amounted to harassment or a reasonable person in possession of the same information would think the course of conduct amounted to harassment. The prosecution case against the Applicant was based on the second limb; that a reasonable person in possession of the same information as the applicant would think that the course of conduct amounted to harassment.

6.3 Applying the case of R v Colohan [2001] EWCA Crim 1251, [17 – 21] the test of whether a reasonable person would consider the course of conduct are meant to harassment was wholly objective.

6.4 As such, the prosecution were not required to establish any mens rea. A prosecution could succeed on proof (a) the Defendant did the acts complained of; (b) they amounted to harassment, objectively judged. Whether the Defendant thought that the act amounted to harassment was irrelevant.

6.5 Following DPP v H [1997] 1 WLR 1406, 1409B-E per McCowan LJ the defence of insanity has no relevance to a charge that does not require proof of mens rea.

6.6 In consequence, the Court ruled that the Applicant's alleged insanity was not available as a defence to the offence under section 2(1) PFHA, although it noted that the psychiatric evidence will be material to the consideration of the appeal against any sentence were the Applicant's appeal to be dismissed."

Following the ruling against the availability of the defence of insanity, the Crown Court heard evidence from the complainant and from the Appellant and dismissed the appeal against the conviction and sentence.

The Appellant made an application for a case to be stated on 7 September 2016. The learned Recorder acceded to the request and formulated the question for consideration as:

"Is the defence of insanity available for a defendant charged with an offence of harassment, contrary to section 2(1) PFHA?"

Both the Appellant and the Respondent have confirmed that they are content with the stated case as drafted.

In early June 2017, the Appellant attempted to lodge an Appellant's Notice for a Case Stated appeal for reasons we need not go into, but this was in fact prior to the case stated being drafted by the Crown Court rather than after, as required by the Criminal Procedure Rules. The Appellant subsequently failed to supply representations in relation to the case stated, she being unrepresented at that time. We are content that her written representations requesting a Case Stated appeal should be treated as her representations in relation to the case stated, and we deem those to have been "properly lodged" on the date when the stated case was filed, namely 7 July 2017. The Appellant has subsequently obtained the assistance of counsel, Mr Sam Thomas, who made written and oral submissions on her behalf. Mr Martin Bowyer appeared on behalf of the Crown. We are grateful to both of them for their assistance.

The Medical Evidence

As we have indicated, the issue concerning the defence of insanity was determined by the Recorder as a preliminary issue and no medical evidence was therefore called on the appeal, although we were told that in the magistrates' court the district judge heard evidence from a psychiatrist.

In our papers are three psychiatric reports: two from Dr Robin Lawrence dated 9 June 2015 and 1 August 2016 respectively, and one from Dr Robert Schapira dated 11 September 2015. Reference is made in those reports to a third report from Dr Lawrence dated May 2015, which we have not seen.

Against this background, both parties are agreed that we should assume that there is medical evidence which might make out the defence of insanity if that defence is available on a charge under Section 2 of the PFHA. The parties are also agreed that if we resolve the question arising on this appeal in the Appellant's favour then the appropriate disposal will be to remit this case to the Crown Court for a re-determination of her appeal under Section 28A(3)(b) of the Senior Courts Act 1981. Although Mr Thomas for the Appellant initially submitted that if were with him on the stated question of law we should simply allow the appeal and quash the conviction, he did not in the end pursue that suggestion (rightly, in our view).

The Issue

For the purposes of this appeal we shall assume that the Appellant pursued a course of conduct which objectively amounted to harassment. The real issue is the question whether the defence of insanity is available on a charge of harassment contrary to Section 2(1) of the PFHA given the terms of Section 1(1)(b).

The Defence of Insanity

Insanity is a common law defence to a criminal charge. Two early examples are Arnold's Case (1724) 16 State Tr 695, where the defendant shot Lord Onslow and alleged (unsuccessfully in the end) that he was insane at the time, and Hadfield's Case (1800) 27 State Tr 1281, 1 Collinson on Idiots, Lunatics 480, where the defendant tried to assassinate King George III and was acquitted on grounds of insanity. What constituted insanity was debated until resolved by the rule in M'Naghten's Case (1843) 1 Car & Kir 130n, 10 Cl & Fin 200, 4 State Tr NS 847 (in the latter report the spelling is "M'Naughton").

In January 1843, Daniel M'Naghten shot and killed the secretary to the politician Sir Robert Peel, intending to kill Peel himself. He was tried for murder and acquitted on the ground of insanity. The insanity verdict became a cause célèbre and was debated in the House of Lords. In June 1843, the judges of the High Court attended the bar of the House of Lords where, led by Lord Chief Justice Tindal, they answered questions from the House of Lords as to the law governing the defence of insanity. Their answers were reported, as if they constituted judgments and precedent, as M'Naghten's Case, supra. A central passage in their opinion is contained in the answers to the second and third questions from the Lords, which we have underlined:

"Your Lordships are pleased to inquire of us, secondly, 'What are the proper questions to be submitted to the jury, where a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons, is charged with the commission of a crime (murder, for example), and insanity is set up as a defence?' And, thirdly, 'In what terms ought the question to be left to the jury as to the prisoner's state of mind at the time when [210] the act was committed'. And as these two questions appear to us to be more conveniently answered together, we have to submit our opinion to be, that the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that 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. The mode of putting the latter part of the question to the jury on these occasions has generally been, whether the accused at the time of doing the act knew the difference between, right and wrong: which mode, though rarely; if ever, leading to any mistake with the jury, is not, as we conceive, so accurate when put generally and in the abstract, as when put with reference to the party's knowledge of right and wrong in respect to the very act with which he is charged. If the question were to be put as to the knowledge of the accused solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction; whereas the law is administered upon the principle that every one must be taken conclusively to know it, without proof that he does know it. If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable; and the usual course therefore [211] has been to leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong: and this course we think is correct, accompanied with such observations and explanations as the circumstances of each particular case may require."

The answer to the second and third questions are what have become known as "the M'Naghten Rules" but, as should now be clear, were a restatement or recapitulation of common law principles. As we have noted, the status of the Rules in terms of the doctrine of precedent is somewhat anomalous, but they have been repeatedly accepted as laying down the law of England as to insanity at the time of the alleged offence: see R v Holt 15 Cr App R 10; R v True 16 Cr App R 164; R v Windle [1952] 2 QB 826; R v Sullivan [1984] AC 156. In R v Sullivan¸ supra, at pp170-171, Lord Diplock said that although the questions put to the judges by the House of Lords referred to insane delusions of various kinds, the answer to the second and third questions is general in its terms and is stated to be applicable "in all cases" in which it is sought "to establish a defence on the ground of insanity." Lord Diplock said that the answers were intended to provide a comprehensive definition of the various matters which must be proved by the accused in order to establish that he was insane at the time of his alleged offence.

The authors of Smith and Hogan's Criminal Law (14^th Edn, 2015), at paragraph 11.2.2.2, summarise the two limbs of the insanity defence as expressed in the M'Naghten Rules in the following terms:

"1. He must be found not guilty by reason of insanity if, because of a disease of the mind, he did not know the nature and quality of his act (effectively a denial of mens rea); or

2. Even if he did know the nature and quality of his act, he must be acquitted if, because of a disease of the mind, he did not know it was 'wrong'."

The burden of establishing the defence of insanity lies upon the defendant, on the balance of probabilities: R v Smith (Oliver) 6 Cr App R 19; R v Carr-Briant [1943] KB 607; Sodeman v The King [1936] ALR 156.

In relation to the first limb, not knowing the "nature and quality of his act" refers to the physical nature and quality of the act and not to its moral or legal quality: R v Codere (1917) 12 Cr App R 21.

In relation to the second limb, Codere, supra, Windle [1952] QB 826 and Johnson [2007] EWCA Crim 1978 establish that "he did not know it was wrong" means legally wrong, and not morally wrong. Thus, if a person does something knowing it is legally wrong but believing that it is nonetheless morally justified, he will not succeed on a plea of insanity. In Windle, supra, the appellant killed his wife who was herself insane. He said to the police on arrest, "I suppose they will hang me for this?" (indicating, said the prosecution, that he knew the legal wrongness of what he had done). The doctor who was called for the defence said the Appellant was suffering from a form of communicated insanity known as folie à deux. The judge withdrew the defence of insanity from the jury. Lord Goddard CJ said at p834:

"In the opinion of the court there is no doubt that in the McNaghten Rules "wrong" means contrary to law and not "wrong" according to the opinion of one man or of a number of people on the question whether a particular act might or might not be justified. In the present case, it could not be challenged that the appellant knew that what he was doing was contrary to law … the judge was entitled to withdraw the case from the jury and was, I think, right in doing so."

Earlier, at p832 he had said:

"It may well be that, in the misery in which he had been living, with this nagging and tiresome wife who constantly expressed the desire to commit suicide, he thought that she would be better out of this world than in it. He may have thought that it would be a kindly act to release her from what she was suffering from — or thought she was suffering from — but that the law does not permit."

It is noteworthy that the High Court of Australia in R v Stapleton (1952) 86 CLR 358 declined to follow Windle. The High Court's view was that if the defendant believed his act to be right according to the ordinary standard of reasonable men he was entitled to be acquitted even if he knew it to be legally wrong. The law in Canada is the same: see R v Chaulk [1990] 3 SCR 1303. However, in R v Johnson, supra, the Court of Appeal, despite acknowledging the force of the reasoning in R v Stapleton, supra, and saying that there was room for reconsideration of the M'Naghten Rules given their 19^th century genesis, concluded that reform was a matter for the House of Lords (now the Supreme Court).

Although insanity is a common law defence, there are several statutes which have regulated what happens upon a finding of insanity by a jury. The Trial of Lunatics Act 1883 ("the 1883 Act") and the Criminal Procedure (Insanity) Act 1964 ("the 1964 Act"), like its predecessor the Criminal Lunatics Act 1800, makes it incumbent upon a jury, if they find the accused to have been "insane" and they find that he committed the acts with which he is charged, to bring in a verdict neither of "guilty" nor of "not guilty" but a special verdict of "not guilty by reason of insanity" (as the wording now is).

Where a special verdict is returned by a jury, by Section 5 of the 1964 Act (as substituted by, firstly, the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 ("the 1991 Act"), and then the Domestic Violence, Crime and Victims Act 2004), the court has a range of orders which it can impose. These include a hospital order (with or without a restriction order), a supervision order, and even an absolute discharge. The range of orders does not apply where the sentence is fixed by law (eg murder); in such a case the court must make a hospital order with a restriction order. It is to be noted that until the 1991 Act substituted a new Section 5 into the 1964 Act, the section in its original form provided that, where a special verdict was returned, the only order which the court could make was a hospital order.

In summary, therefore, insanity is a common law defence, with the consequences flowing from a finding of insanity being regulated by statute, which specifies that a special verdict be returned.

That is the position in the Crown Court. The position in the magistrates' court is as follows. Section 2 of the 1883 Act (which, as amended by the subsequent legislation we have mentioned, provides for the special verdict in cases of insanity) is inapplicable to summary trials because its wording is only applicable to trials on indictment: see R (Singh) v Stratford Magistrates' Court [2007] 1 WLR 3119, para 24; Blackstone's Criminal Practice 2017, para A3.24; Archbold 2018, para 17-74(iii). However, although there is no statutory procedure for a special verdict in the magistrates' court, the principle that common law defence of insanity is available in summary proceedings, and that it prevents conviction, was confirmed in R v Horseferry Road Magistrates Court ex parte K [1997] QB 23 and the Singh case, supra. Where a defendant in summary proceedings is acquitted on the grounds of insanity, but the court is satisfied he did the acts charged, the court has the power under Section 37(3) of the Mental Health Act 1983 to make a hospital order.

As the Law Commission noted in its 2013 Discussion Paper Criminal Liability: Insanity and Automatism at para 1.2, the existing law has long been the subject of academic criticism as being unfair, out of date and failing to reflect advances made in medicine, psychology and psychiatry. Various bodies have reviewed the defence of insanity and recommended reform, but the substance of the defence has remained unchanged.

The Appellant's Arguments

Mr Thomas for the Appellant submitted that the Recorder was wrong to hold that the defence of insanity was not available in relation to the offence under Section 2 of the PFHA. Stripped to its essentials, his argument was that a defendant who is insane is not morally culpable and should not be punished; that this is a different and more extensive basis for relieving a defendant of criminal liability than saying that the prosecution has not proved the essentials of the offence (including any mens rea requirement) because of the defendant's disease of the mind; and that once insanity is established, the existence or otherwise of mens rea is irrelevant.

The Respondent's Arguments

On behalf of the Crown, Mr Bowyer submitted that by creating the offence of harassment in the form that it did in Sections 1 and 2 of the PFHA, and in particular by providing an objective standard in Section 1(2) by specifying that the defendant 'ought to know' his conduct amounts to harassment "if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other", Parliament must by implication be taken to have excluded the defence of insanity for the Section 2 offence. Parliament must be taken to have intended that a defendant should not escape criminal liability even if insane and unaware of the nature and quality of his acts: those acts are to be judged as amounting to harassment, if that is what a reasonable man would make of them, irrespective of how the defendant views them. He relies, in particular, on the dicta of Hughes J (as he then was) in Colohan [2001] EWCA 1251, in which it was contended on behalf of the appellant that the hypothetical reasonable person referred to in Section 1(2) of the PFHA must be endowed with the relevant characteristics of the accused and in particular with any recognisable mental disorder to which he is subject. We discuss that decision below.

Analysis

In this discussion it is not necessary for us to address the issue of what constitutes "a disease of the mind", which is a necessary precondition for the application of either limb of the M'Naghten Rules. This in itself is a controversial topic about which much has been written. It is sufficient to note that the kind of disorder that is relevant is not necessarily a disease in the ordinary sense of that word, and the word "mind" is not interpreted to mean "brain". A range of conditions may qualify as a "disease of the mind" for the purposes of the defence, as long as they produce a malfunctioning of the mind: see Criminal Liability: Insanity and Automatism, supra, paras 1.37 – 1.47. Nor is it necessary for us to consider the dichotomy between "internal" and "external" causes (the former placing the burden of proof on the defendant and, if successfully established, leading to the special verdict; the latter placing the burden on the prosecution and, if established, resulting in complete acquittal on the grounds of non-insane automatism), or the surprising results which can flow from the distinction: cf. Quick [1973] QB 910 (diabetic hypoglycaemia caused by insulin: finding of non-insane automatism because caused by an external factor); Hennessey [1989] 1 WLR 287 (hyperglycaemia caused by diabetes alone: finding of insanity because caused by an internal factor).

In order to resolve the issues arising in this appeal, it is important to consider closely how the defence of insanity operates, so as to relieve the defendant of the criminal liability which would otherwise attach to him by reason of his actions.

At the heart of the rationale for the insanity defence is the principle that criminal punishment should only be imposed upon those who are responsible for their conduct. As Professor Hart put it in Punishment and Responsibility (1968), p15:

"What is crucial is that those whom we punish should have had, when they acted, the normal capacities, physical and mental, for doing what the law requires and abstaining from what it forbids, and a fair opportunity to exercise these capacities. Where these capacities and opportunities are absent, as they are in different ways in the varied cases of accident, mistake, paralysis, reflex action, coercion, insanity, etc, the moral protest is that it is morally wrong to punish because "he could not have helped it" or "he could not have done otherwise" or "he had no real choice"."

The defence of insanity operates so as to give effect to this principle, firstly by relieving the defendant of responsibility in cases where he did not know the nature and quality of his act. In modern terms, this simply means that the defendant literally "did not know what he was doing". This formulation is derived from R v Sullivan [1984] AC 156, 173. Referring to the original formulation, Lord Diplock said:

"The audience to whom the phrase in the M'Naghten Rules was addressed consisted of peers of the realm in the 1840s when a certain orotundity of diction had not yet fallen out of fashion. Addressed to an audience of jurors in the 1980s it might more aptly be expressed as 'He did not know what he was doing.'"

This is the jury direction suggested in the Crown Court Compendium (February 2017) at 18-20, and is how modern judges direct juries on the first limb of the insanity defence.

Three examples often given where it could be said that the defendant did not know the nature and quality of his act are: (a) where A kills B under an insane delusion that he is breaking a jar (Stephen, A Digest of the Criminal Law, 8^th Edn, p8); (b) where a madman cuts a woman's throat under the delusion that he is cutting a loaf of bread (CS Kenny, Outlines of the Criminal Law (19^th Edn, 1966, by JWC Turner, p76); (c) where a drunken nurse puts a baby on the fire thinking it is a log: Attorney – General for Northern Ireland v Gallagher [1963] AC 349, 381, citing an 18^th century case.

In virtually every case where the defendant proves that he did not know the nature and quality of his act at the time he performed it, then he will not be criminally responsible irrespective of the first limb of the M'Naghten test, because he will lack the mens rea for the alleged offence. The woman who squeezes her husband's throat believing she is strangling a deadly snake does not have the mens rea for murder, because she lacks the necessary intention to kill or cause really serious harm: Glanville Williams, Textbook of Criminal Law (4^th Edn by Dennis J. Baker), para 30-016. To that extent, insanity as it operates in that context adds little, in the sense that the defendant would fall to be acquitted of murder in any event by reason of lack of mens rea (although the effect of the special verdict might be that the disposal is different).

It is not correct, however, simply to regard insanity reductively, as operating simply on the basis that someone who is suffering from a disease of the mind will always lack mens rea for the offence.

It is possible for someone to have the full mens rea for a criminal offence whilst at the same time, because of a defect of reason arising from a disease of the mind, not know what he is doing is wrong. If a man intentionally kills his wife because of his deluded belief that he is under threat from a representative of Satan and has received a divine order to slay, and that it is lawful to comply with divine orders, then he possesses the mens rea for murder but is not guilty of murder because he does not know that what he is doing is unlawful.

There is ample support for this proposition. In Moore v The Queen [2001] UKPC 4, para 13, having referred to the 'false dichotomy' between intention and insanity, the Privy Council said:

"It is clear from the authorities that a defendant may be insane within the M'Naghten Rules … even if he intends to kill, if he did not know that what he was doing was wrong."

To the same effect, in R v Antoine [2001] 1 AC 340, 374 Lord Hutton said:

"My Lords, a person who kills when he is insane because he does not know that what he is doing is wrong may have the intention to kill, but I consider that insanity under either limb of the M'Naghten Rules negatives the mental responsibility of the defendant: see per Lord Diplock in R v Sullivan [1984] AC 156, 170."

As it is said in Smith and Hogan, supra, at para 11.2.2.4, the proposition that insanity is based on the absence of mens rea:

"… may be true where D asserts that he did not know the nature and quality of his act, but it is not true where he asserts that he did not know that the act was wrong."

Similarly, the editors of Blackstone's Criminal Practice 2017 say at A3.23 (our emphasis):

"The defence of insanity is still governed by the McNaughton Rules … which today operate largely as a restriction on what might otherwise be a complete defence based on lack of mens rea or automatism. Only where the accused falls under the limb of the rules which requires him not to know what he doing is 'wrong' do the rules provide any defence additional to that which would be available under the above general principles."

Further, at para A3.33, having recited the phrase "… or … that he did not know what he was doing was wrong" the editors state:

"This is an alternative to not knowing the nature and quality of the act and is the only sense in which an insane person is given a defence where none would be available to the sane (knowledge of moral or legal wrongdoing, as opposed to knowledge of the facts which render it wrong, being generally irrelevant to criminal responsibility.)"

In his article Exculpatory Defences in Criminal Law ((1990) 10 Oxford J Legal Stud 381, 401), Professor Colvin explains that the second limb of the M'Naghten Rules:

"… establishes a special exculpatory defence which is based on lack of capacity for normative understanding. There is, in effect, an exception to the general rule that 'ignorance of the law is no excuse.'"

It follows that we consider that the statement in Archbold 2018 at paragraph 17-74 that "Insanity at the time of the commission of the alleged offence is merely a particular situation where mens rea is lacking" goes too far. While that may very well be the case where the defendant falls under the first limb of the M'Naghten Rules, it will not necessarily be the case if he comes under the second limb. Such a defendant may have the mens rea for the offence but nonetheless receive the benefit of the special verdict (in the Crown Court) if he shows that he did not know the nature and quality of his act.

What then is the principle underpinning the second limb of the M'Naghten Rules? The answer is a fundamental one, linked to Professor Hart's rationale as to when a person ought to be liable for criminal punishment. In Pleas of the Crown, 3rd ed. (1739), William Hawkins stated the position to be as follows, at pp. 1–2:

"Section 1. … those who are under a natural disability of distinguishing between good and evil, as … ideots and lunaticks … are not punishable by any criminal prosecution whatsoever."

It is appropriate at this point to deal with Director of Public Prosecutions v Harper [1997] 1 WLR 1406, a case to which the learned Recorder referred to at para 6.5 of the Stated Case for the proposition (at p1409) that "the defence of insanity has no relevance to a charge that does not require proof of mens rea". Mr Bowyer also relies upon McCowan LJ's dictum in that case:

"The defence is based on the absence of mens rea, but none is required for the offence of driving with excess alcohol. Hence the defence of insanity has no relevance to such a charge as it is an offence of strict liability."

Thus, argues Mr Bowyer, if mens rea is present (as, he argues it would be for the offence under Section 2 of the PFHA, provided only that a reasonable person thought that the defendant's conduct was harassment) then a fortiori insanity is not available as a defence to such a charge.

It appears that McCowan LJ derived the proposition that insanity is not available as a defence to offences of strict liability from the decision in R v Horseferry Road Magistrates Court ex parte K [1997] QB 23, where that proposition was part of the applicant's submissions:

"Mr Gordon's submissions can be summarised by the following propositions: (1) insanity is a common law defence; (2) insanity is not a species of special defence but, rather, merely a particular situation where mens rea is lacking; (3) accordingly, insanity is a defence to any criminal charge where mens rea is in issue … According to Archbold, Criminal Pleading Evidence & Practice, 1996 ed., vol. 2, pp. 53–54, para. 17–109, insanity at the time of the alleged offence is merely a particular situation where mens rea is lacking. Accordingly, Mr. Gordon submitted that insanity is available as a defence to all criminal charges where mens rea is in issue." (p41).

Respectfully, we make the following observations about this decision. Firstly, the discussion about the availability of the insanity defence was obiter, because the Court held at p40 that the application for judicial review had to be dismissed for other reasons. Secondly, the citation from the 1996 edition of Archbold which founded the submission is described by the authors of Smith and Hogan at para 11.2.2.4 as "misleading". At para 48 above we express our disagreement with the same passage in the 2018 edition. Thirdly, the Court does not appear, as we read the judgment, to have given express or considered endorsement to the submissions about the restricted scope of the defence, nor was this an essential part of the reasoning which led the court to conclude that although insanity is available as a defence in summary proceedings, the special verdict is not available (see at pp 44-45).

We have come to the conclusion that the quoted remarks of McCowan LJ in Director of Public Prosecutions v Harper¸ supra, should be regarded as misleading, and should not be followed. To the extent that it supports the same proposition, R v Horseferry Road Magistrates Court ex parte K, supra should also not be followed: cf R v Greater Manchester Coroners' Court ex parte Tal [1985] QB 67. Both Harper and ex parte K are ultimately founded on the proposition that the defence of insanity is based on the absence of mens rea. For the reasons we have given, insanity actually rests on a broader base than mere absence of mens rea, and there is authority at the highest levels to that effect. Second, these decisions are inconsistent with Hennessy [1989] 1 WLR 287, where insanity was held to be an appropriate defence to charges which included the strict liability offence of driving while disqualified. Third, both the authors of Smith and Hogan (at para 11.2.2.4) and the editors of Blackstone (at para A3.24) consider Harper to have been wrongly decided. Fourth, Harper has been the subject of academic criticism (see Ward, Magistrates, Insanity and the common law [1997] Crim LR 796) and in the Law Commission report Criminal Liability: Insanity and Automatism, para 1.55. We agree, as the authors of Smith and Hogan put it at paragraph 11.2.2.4, that the defence of insanity "is of general application".

It follows that we accept the central thrust of Mr Thomas' submissions on behalf of the Appellant. If insanity is available as a defence even to a person who possesses the mens rea for the offence of harassment, then even if that person commits conduct which viewed objectively amounts to harassment then he will not be guilty if he does not know that what he is doing is wrong, in the sense of the conduct being contrary to law. To adapt an example already given, if a man repeatedly telephones his neighbour at all hours of the day and night in an attempt to perform a religious conversion, in the deluded belief that he has received a divine order to do so, and that it is lawful to comply, then he is not guilty by reason of insanity under the second limb of the M'Naghten Rules. That would be so, notwithstanding that he has committed the actus reus of the offence and his conduct, viewed objectively, amounts to harassment. Such a man does not know that what he is doing is wrong and therefore as a matter of principle should not be subject to criminal punishment.

We cannot accept Mr Bowyer's submissions. If the sole question on which criminal liability turned were whether a reasonable person in possession of the same information as the defendant would think his course of conduct amounted to harassment, then this would lead to the conclusion that even a person who did not know the nature and quality of his act, and thus was insane under the first limb of the M'Naghten Rules, would be nonetheless be guilty. In our view, this cannot be right, and it would produce startling results. A single text or even a moderate series of texts could not amount to harassment. If a person suffering from severe dementia, such that they cannot recall events beyond a few minutes, repeatedly telephoned or texted the same individual, on each occasion believing they are doing so for the first time, they would not know the nature of their act: they would not know of the sustained nature of the texts or calls. If Mr Bowyer were right, such a person would be guilty because, viewed objectively, their conduct amounted to harassment. In this illustration, we have not overlooked the wording in Section 1(2) that the hypothetical reasonable person has to be "in possession of the same information" as the defendant, and that this means the actual information possessed by the defendant (see Colohan, supra, at para 20). The dementing individual would certainly have been in possession of all the relevant information.

If Mr Bowyer's submission was correct, one consequence would be that the defence of insanity would not apply to any offence with an objective form of mens rea. Parliament has demonstrated a willingness to create serious offences in which the fault element is explicitly objective. Examples include many of the sexual offences in the Sexual Offences Act 2003, offences in the Terrorism Acts and some of the money laundering offences in the Proceeds of Crime Act 2002. We are reluctant to reach a conclusion which would have such far-reaching consequences across the field of criminal law without the clearest possible basis for doing so. That does not exist here.

Whilst bearing some superficial relevance to the problem at hand, we do not consider that Colohan, supra, assists Mr Bowyer's argument. In that case the appellant had written letters to his Member of Parliament containing abuse and threats of violence. The appellant suffered from schizophrenia. He was convicted of the offence under Section 2 of the PFHA. The medical evidence was that the letters were the product of his schizophrenia and that because of his illness, he believed unshakably the things that he wrote and felt compelled to write them. The submission on behalf of the appellant was that the hypothetical reasonable person referred to in Section 1(2) of the PFHA must be endowed with the relevant characteristics of the accused, and in particular with any recognisable mental disorder to which he is subject. Counsel relied for support upon the rules relating to provocation and duress. He submitted that the law of provocation expressly contemplates what he referred to as a mixed objective/subjective test, namely whether a reasonable man, but one sharing the relevant characteristics of the particular defendant, would have acted as the defendant did. At paragraph 20 the Court said that the consequence of that submission, if correct, would be that the appellant was to be judged by the standards of the hypothetical reasonable schizophrenic.

From paragraph 17 onwards, the court rejected the appellant's submission on the grounds, inter alia, that the PFHA was passed to deal with 'stalking', and such conduct would often be pursued by those possessing unusual psychological profiles and possibly identifiable mental illness. The Court stated at para 19 that to give the Act the construction for which the appellant contended would be to remove from its protection a very large number of victims and run the risk of significantly thwarting the purpose of the Act.

It is important that there was no suggestion that Mr Colohan was insane within the M'Naghten Rules, or that he did not know that what he had done was wrong. There is nothing in the decision which bears upon the fundamental rationale for the defence of insanity as we have elucidated it. Insanity does not arise as a defence simply because the defendant considers his conduct subjectively justified. The second limb of the defence only arises where an individual who satisfies the threshold condition of a mental disorder cannot tell right from wrong to the extent of not knowing his conduct breaches the law. Such a person does not bear criminal responsibility for that very reason.

Conclusion, Disposal and Final Observations

It follows that we answer 'Yes' to the question posed in the stated case: "Is the defence of insanity available for a defendant charged with an offence of harassment, contrary to Section 2(1) PFHA?"

We discussed with counsel the proper disposal of the case were we to reach such a conclusion, and accordingly, pursuant to Section 28A(3)(b) of the Senior Courts Act 1981, we remit the case to the Crown Court for a re-determination of Ms Loake's appeal against conviction.

Finally, we add this. Although in this judgment we have held that the M'Naghten Rules apply to the offence of harassment contrary to Section 2 of the PFHA just as they do to all other criminal offences, this should not be regarded as any encouragement to frequent recourse to a plea of insanity. M'Naghten's Case makes clear that every person is presumed to be sane. The burden lies on a defendant to prove on a balance of probabilities that he or she falls within the M'Naghten Rules. The offences in the PFHA generally require a "course of conduct", that is, conduct on more than one occasion (see Section 7). In practice, prosecutions are generally brought in respect of conduct repeated many times over a significant period. We do not anticipate that someone who has engaged in such conduct will readily be able to show that throughout that period they did not know the nature and quality of their act, or that throughout that time they did not know what they were doing was wrong, in the necessary sense. If the defence is to be relied upon, it will require psychiatric evidence of great cogency addressing the specific questions contained in the M'Naghten Rules. In the Crown Court, by Section 1 of the 1991 Act, the special verdict may not be returned except on the evidence of two registered medical practitioners. In the absence of cogent psychiatric evidence about the specific relevant aspects of a defendant's mental state throughout his alleged course of conduct, we would expect magistrates and judges to deal robustly with claimed defences of insanity.