Text:ICLR R v Wells [2015] EWCA Crim 2, [2015] MHLO 5

CRIME — Plea — Fitness to plead — Determination of whether defendant did act or made omission charged — Whether what defendant said in interview admissible — Criminal Procedure (Insanity) Act 1964, ss 4, 4A (as substituted by Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, s 2)

Regina v Wells

Regina v Masud

Regina v Hone

Regina v Kail

[2015] EWCA Crim 2^M; [2015] WLR (D) 25

CA: Sir Brian Leveson P, Openshaw, Dove JJ: 20 January 2015

Where a defendant’s disability impacted on his ability to take part in a trial but he was not otherwise affected by a psychiatric condition such as rendered what was said in interview unreliable, there was no reason why the jury should not hear such evidence albeit with an appropriate warning. When considering the extent to which evidence of the interview should be admitted, it remained relevant to consider all the circumstances.

The Court of Appeal, Criminal Division, so held when (1) granting leave but dismissing the appeal of Marc Martin Wells against a finding, having been found unfit to plead, that he had committed the act charged against him, namely murder, following which, on 21 March 2014, in the Crown Court at Winchester, Judge Cutler had made a hospital order with a restriction order unlimited in time; (2) refusing the application by Sarfraz Masud for leave to appeal against a finding, having been found unfit to plead, that he had committed the acts charged against him, namely sexual assault and common assault, following which, on 17 July 2014 in the Crown Court at Woolwich, Judge Lees had made a hospital order; (3) dismissing the appeal of Susan Hone against a finding, having been found unfit to plead, that she had committed the act charged against her, namely one count of rape and two counts of sexual assault, following which, on 5 March 2014 in the Crown Court at Woolwich, Judge Tomlinson QC had sentenced her to concurrent supervision orders under Schedule 1A to the Criminal Procedure (Insanity) Act 1964; and (4) refusing the application of Tony Nicholas Alan Kail for leave to appeal against a finding, having been found unfit to plead, that he had committed the act charged against him, namely, sexual assault, following which, on 14 August 2014 in the Crown Court at Harrow, Judge Arran had sentenced him to an absolute discharge.

SIR BRIAN LEVESON P said, in the reserved judgment of the court, that the question of what was required to prove that an accused “did the act or made the omission charged”, within section 4A of the Criminal Procedure (Insanity) Act 1964, had been addressed by the House of Lords in R v Antoine [2001] 1 AC 340^B where it had been recognised that the actus reus of an offence could not always be separated from all consideration of the mens rea. Lord Hutton had suggested that, if there was objective evidence which raised the issue of mistake or accident or self-defence, then the jury should not find the defendant did the “act” unless it was satisfied beyond reasonable doubt on all the evidence that the prosecution had negatived that defence. It was not difficult to see that those examples qualified the act. If committed in self-defence, an assault was not unlawful; if an accident, the act was not deliberate; if a mistake, the quality of the act had been affected by the circumstances. That delineation was clear but did lead to the question whether it was always possible or appropriate to separate actus reus from mens rea. Some offences created rather more difficulty and underlined that a proper consideration of the “acts” required to prove an offence required an offence-specific consideration of its ingredients. As the authorities made clear, there was no bright line and the actus reus might, indeed, involve mental elements. Another question concerned the nature of objective evidence which could include independent eye-witness evidence, CCTV, cell site or expert forensic evidence. What would not fall within the category of objective evidence were the assertions of a defendant who, at the time of speaking, was proved to be suffering from a mental disorder of a type that undermined his or her reliability and which itself had precipitated the finding of unfitness to plead. Those assertions did not themselves need to be obviously delusional. The exclusion of evidence outside that category might put the defendant at a disadvantage; however that was balanced by the fact that these were not criminal proceedings and the disposals were accordingly limited. But the same approach should not necessarily be taken to an interview of a defendant who, at the time of interview, was not suffering from such a psychiatric illness. It was not uncommon for evidence of interviews of a defendant of full capacity, who had been involved in an incident and had provided a full account to the police but thereafter had suffered an injury which rendered him unfit to plead, to be admitted into evidence whatever the strict operation of the principles in R v Antoine might otherwise suggest. The balance struck by authorities such as Attorney General’s Reference (No 3 of 1998) [2000] QB 401^B, R (Young) v Central Criminal Court [2002] 2 Cr App R 178, R v B (M) [2013] 1 WLR 499^B and R v Jagnieszko [2008] EWCA Crim 3065^{Not on Bailii!} was appropriate. If a defendant’s disability impacted on his/her ability to take part in a trial but he/she was not otherwise affected by a psychiatric condition such as rendered what was said in interview unreliable (whether or not the delusional traits were apparent on the face of the interview), there was no reason why the jury should not hear such evidence, albeit with an appropriate warning. But in considering the extent to which evidence of the interview should be admitted, it remained relevant to consider all the circumstances.

Applying those principles to the cases before the court, it was submitted on behalf of Wells that the issue of self-efence should have been considered by the jury because, while he was admittedly mentally disordered at the time of the killing, he was not so disordered as to make it impossible to assess his account. In their Lordships’ judgment, absent the assertions by Wells of self-defence, there was no objective evidence on which it would have been open to leave self-defence. On behalf of Masud it was submitted that bad character evidence of a single conviction could not properly be relied upon to found a propensity by Masud to do the act with which he was charged. In their Lordships’ judgment it was worth noting that the judge had refused to admit two other incidents of what the Crown contended constituted bad character which demonstrated that he had the fairness of the proceedings very much in mind. On behalf of Hone it was submitted that the indictment, which contained the same charges against a co-defendant who was fit to be tried, should be severed as it would be unfair if the co-defendant gave evidence against her which she would be unable to contradict. Their Lordships were satisfied, weighing all of the relevant factors, that in the exercise of his discretion the judge was entitled to reject the application to sever. It was also argued that more than a mere physical act was required in the case of a secondary party in order to render that act an “injurious” act which could properly found a conclusion that a person had done the act charged as the offence against them. Their Lordships did not agree; an inquiry into the state of mind or level of knowledge of the person concerned at the time when they did the acts or omissions comprising the offence was not required. On behalf of Kail, it was submitted that the evidence of an independent witness amounted to objective evidence that the defendant might have had a reasonable belief that the complainant consented to the sexual touching, the subject of the charges. Their Lordships were not satisfied that such evidence was objective evidence; the question of a reasonable belief in the consent of the complainant to sexual touching clearly fell into the realm mens rea and did not require a finding in the context of section 4A of the 1964 Act. The finding in each of these cases was safe.

Appearances: Philip Gibb QC (appointed by the court under section 4A(2)(b) of the Criminal Procedure (Insanity) Act 1964) for Wells; Daniel Bunting (appointed by the court under section 4A(2)(b) of the 1964 Act) for Masud; Philip McGhee (appointed by the court under section 4A(2)(b) of the 1964 Act) for Hone; Benjamin Newton (appointed by the court under section 4A(2)(b) of the 1964 Act) for Kail; William Mousley QC and Nicholas Bleaney (instructed by Crown Prosecution Service, Appeals Unit) for the Crown.

Reported by: Clare Barsby, Barrister.