Felstead v R

1914. Feb. 26. Charles A. McCurdy, for the appellant. The question is whether a person who has been found guilty but insane has a right of appeal under the Criminal Appeal Act, 1907, in respect of that part of the verdict which finds him insane. The appellant is willing to serve a term of imprisonment, but he does not wish to be detained during the King's pleasure in a criminal lunatic asylum. The question depends upon what is the effect of a special verdict under the Trial of Lunatics Act, 1883, which provides that, when insanity is set up as a defence and it appears to the jury that the accused did the act charged but was insane at the time when he did it, they must find specially that the accused is guilty of the act but was insane at the time. That is a finding that the prisoner is guilty of a crime but is relieved from responsibility for it on the ground of insanity. That, it is submitted, is a conviction which gives the prisoner a right of appeal under the Act of 1907. It will be said that this finding is in effect not a conviction but an acquittal — that it is a finding, not that the prisoner has committed the offence charged, but only that he has done the substantive act which if coupled with a mens rea would be an offence, and that it negatives the commission of the crime. But the doctrine of mens rea has nothing whatever to do with the defence of insanity. A person when he becomes insane does not take leave of his ordinary passions or cease to be guided by ordinary motives. From the earliest times insanity has never been a defence in the sense that it negatived the crime; it does not negative guilt, but it absolves the prisoner from the consequences of the crime. In olden days insanity was no defence to a criminal charge, but it entitled the prisoner as of right to a free pardon: Stephen's History of the Criminal Law of England, vol. ii., p. 151. Then followed the second stage in the history of this procedure when it was open to the jury either to give a special verdict upon which the Court would give judgment of acquittal or to give a general verdict of acquittal to avoid circuity: Foster's Crown Law, 3rd ed., p. 279. That practice was put an end to by the Criminal Lunatics Act, 1800. That statute was passed because if a person was acquitted generally, the ground of acquittal being that he was insane, he could not be detained as a lunatic, but was allowed to go at large to the danger of the community. The Act accordingly directed that, on proof of a prisoner's insanity, the jury should state that he was acquitted on the ground of insanity, and provided for his detention during the King's pleasure. That was not a finding that there was no criminal intent, but was a finding that there was such intent but that the prisoner was absolved from the consequences of the crime: Reg. v. Oxford^F2; Reg. v. Davies.^F3 In the language of Lord Denman in the former case it amounted to a finding that the act had been done by the prisoner which fixed him as a criminal unless he was insane.

[LORD ATKINSON referred to McNaghten's Case.^F4]

There the prisoner was found not guilty, not upon the ground of the absence of any of the constituent elements of a crime, but on the principle that a person suffering from dementia was excused. Finally, the provisions of the Act of 1800 were replaced by the Act of 1883. There is no difference in the meaning of the two Acts, and the language was altered to express the construction put upon the Act of 1800 by Lord Denman and to make its meaning perfectly clear. In Rex v. Ireland^F5, where the appeal was from the whole of the verdict, it was decided by the Court of Criminal Appeal that a special verdict under the Act of 1883 was a conviction and that there was a right of appeal. In Rex v. Machardy^F6, upon which the Court proceeded in this case, it was held, first, that the special verdict was a conviction, but, secondly, that there was no right of appeal from that part of the verdict which found the prisoner insane. It is submitted that that case was wrongly decided, for under such a verdict the prisoner is detained, not as a lunatic, but as a criminal lunatic, i.e., under...