Aline Loake v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Lord Justice Irwin,Mr Justice Julian Knowles,Irwin LJ,Knowles J |
| Judgment Date | 16 November 2017 |
| Neutral Citation | [2017] EWHC 2855 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2769/2017,Case No: CO/2769/2017 |
| Date | 16 November 2017 |
[2017] EWHC 2855 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Irwin
Mr Justice Julian Knowles
Case No: CO/2769/2017
Sam Thomas (instructed directly) for the Appellant
Martyn Bowyer (instructed by The Crown Prosecution Service) for the Respondent
Hearing dates: 25 October 2017
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-Eper 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'sCase (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'sCase (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'sCase (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'sCase, 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...
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