R v Antoine
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 29 April 1999 |
| Neutral Citation | [1999] EWCA Crim J0429-22 |
| Judgment citation (vLex) | [1999] EWCA Crim J0429-18 |
| Docket Number | No. 97/4589/X3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 29 April 1999 |
[1999] EWCA Crim J0429-18
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
The Lord Chief Justice of England and Wales
(Lord Bingham of Cornhill)
Mr Justice Mckinnon and
Mrs Justice Bracewell
No. 97/4589/X3
MR DAVID SPENS QC and MR GARETH BRANSTON appeared on behalf of THE APPELLANT
MR JAMES W CURTIS QC and MR NICHOLAS HILLIARD appeared on behalf of THE CROWN
Thursday 29 April 1999
THE LORD CHIEF JUSTICEOn 2 December 1995 Michael Earridge, aged 15, was brutally and wantonly killed in a South London flat, apparently as a sacrifice to the devil. An indictment was in due course preferred against two defendants only a little older than the victim, charging them with murder and (by an unopposed amendment) manslaughter. The first defendant, David McCallum, pleaded not guilty to murder but guilty to manslaughter on the ground of diminished responsibility. His plea was accepted by the Crown. He was committed to hospital subject to a restriction order without limit of time. In the case of the second defendant, Pierre Antoine, said to be a secondary party to the killing, the proceedings took a different course, giving rise to issues raised by him on this application, which has been referred to the court by the Registrar. We formally grant the applicant leave to appeal.
In March 1997 the appellant appeared before His Honour Judge Van der Werff in the Inner London Crown Court. It was then contended on his behalf that he was unfit to be tried because of mental disability. Evidence was called before the jury on behalf of the defence and the Crown. It was all to the effect that the appellant was indeed under disability. There was thus no live issue between prosecution and defence and the judge directed the jury to find, as they did, that the appellant was under a disability so that he was not fit to stand trial.
The court then embarked on the determination whether the appellant had done the act or made the omission charged against him as an offence. For that purpose, counsel and solicitors up to then representing the appellant were appointed by the court to put the case for the defence. On behalf of the appellant a double-barrelled submission was made to the judge. First, it was submitted that for purposes of this determination it was incumbent on the Crown to establish all the elements of the offence of murder charged against the appellant, both actus reus and mens rea. Directing himself in accordance with R v Egan [1998] 1 Cr App R 121, the judge upheld that submission. He held (at page 6E of his ruling):
"The Act provides that he shall not be convicted of anything but may be acquitted if the Crown cannot satisfy the ingredients, and all the ingredients, of the offence which is alleged against him, in this case murder."
Secondly, it was submitted to the judge that on this determination it was open to the appellant to raise the issue of and seek to prove diminished responsibility in answer to the murder charge. This submission the judge rejected, for essentially two reasons: first, because section 2 of the Homicide Act 1957 which introduced the defence of diminished responsibility did not apply in this situation; and secondly, because of practical difficulties which would arise if this plea were to be given effect.
The determination of this issue by a jury on the facts was adjourned until May 1997, when evidence was called on behalf of the Crown and the defence before the same judge sitting with a different jury from that which had found the appellant unfit to plead. The judge summed up to the jury, and on 2 June 1997 the jury after a short retirement returned a verdict that they were satisfied that the appellant had done the act of murder charged against him. The judge made an order that the appellant be admitted to hospital and that his discharge be restricted without limit of time.
The main challenge raised on behalf of the appellant on this appeal is to the judge's ruling, already referred to, on diminished responsibility. But other questions have incidentally been raised, some of them by the Registrar, which call for brief consideration at the end of this judgment.
Throughout history, seriously anti-social acts, particularly acts of violence, have been committed by people whose mental capacity was such that they were not responsible, or not fully responsible, for their acts, or could not fairly be required to stand trial. Such cases pose an inescapable public, moral and human rights dilemma: for while such people may present a continuing danger from which the public deserve to be protected, it would be offensive to visit the full rigour of the law on those who are not mentally responsible, or not able to defend themselves, as an ordinary person of sound mind would be taken to be, and who may (despite their mental incapacity) have done nothing wrong or dangerous.
The law of England and Wales has responded to this problem in three main ways germane to the present appeal. First, it has recognised insanity as a substantive defence to a criminal accusation where a defendant proves
"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" ( M'Naghten's Case (1843) 10 Cl. and Fin. 200 at 210."
Well before this, in the Criminal Lunatics Act 1800, which was entitled "an Act for the safe custody of insane persons charged with offences", it had been enacted
"That in all cases where it shall be given in evidence upon the trial of any person charged with treason, murder, or felony, that such person was insane at the time of the commission of such offence, and such person shall be acquitted, the jury shall be required to find specially whether such person was insane at the time of the commission of such offence, and to declare whether such person was acquitted by them on account of such insanity; and if they shall find that such person was insane at the time of the committing such offence, the court before whom such trial shall be had, shall order such person to be kept in strict custody, in such place and in such manner as to the court shall seem fit, until his Majesty's pleasure shall be known ??"
The purpose of this Act, as Lord Diplock pointed out in R v Sullivan [1984] AC.156 at 172, was to protect society against recurrence of the dangerous conduct. There might be little opportunity for the insane accused person to show that he had not committed the act of which he was accused. Such opportunity was given by section 2 (1) of the Trial of Lunatics Act 1883, which provided:
"Where in any indictment or information 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 [emphasis added], 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, but was insane as aforesaid at the time when he did the act or made the omission".
Where such a special verdict was found, the court was obliged to order that the accused be kept in custody as a "criminal lunatic". The Criminal Procedure (Insanity) Act 1964 amended the special verdict under section 2 of the 1883 Act to "not guilty by reason of insanity", and provided an appeal against a special verdict to the Court of Criminal Appeal, but left the substance of the procedure unchanged. If a special verdict of not guilty of murder by reason of insanity is returned, the court is obliged under section 5 and Schedule 1 to the Act to order the admission of the defendant to hospital subject to an order restricting his discharge without limit of time.
In Attorney General's Reference No. 3 of 1998 (unreported, 25 March 1999), the Court of Appeal (Criminal Division) addressed the question: "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 court answered that question, in a case where insanity was assumed, in these terms:
"(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 and 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."
The correctness of this answer is, in our respectful judgment, inescapable: in a case where the M'Naghten test is satisfied, it cannot conceivably be incumbent upon the prosecution to prove the mental ingredients of the offence charged against the defendant.
The second response of the law to the problem noted above has been to recognise that an accused person may, because of mental disability, be unfit to be tried. This situation was also addressed in the Criminal Lunatics Act 1800, which in section...
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