Attorney General's Reference (No. 3 of 1998)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JUDGE |
| Judgment Date | 25 March 1999 |
| Neutral Citation | [1999] EWCA Crim J0325-3 |
| Judgment citation (vLex) | [1999] EWCA Crim J0325-34 |
| Date | 25 March 1999 |
| Court | Court of Appeal (Criminal Division) |
[1999] EWCA Crim J0325-3
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Judge
Mr Justice Sachs
Mr Justice Klevan
MR DAVID PERRY appeared on behalf of the Attorney-General
MR JAMES TURNER QC appeared as Amicus Curiae
( As Approved by the 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...
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