View source for ICLR (2024) WLR(D) 342

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Court of Appeal

Rex v Goldsmith (Victoria)

[2024] EWCA Crim 780

2024 July 4; 12

Holroyde LJ, Jay, Ellenbogen JJ
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''Crime— Plea— Fitness to plead— Defendant charged on indictment with possession with intent to supply controlled drug— Finding of unfitness to plead— Jury determining whether defendant did act charged— Whether concerned with mental element— Criminal Procedure (Insanity) Act 1964 (c 84), s 4A — Misuse of Drugs Act 1971 (c 38), s 5(3)''

A hearing under section 4A of the Criminal Procedure (Insanity) Act 1964 is not a criminal trial to determine the guilt or otherwise of an accused person but the consequence of an inability to conduct a trial with that aim in mind owing to the mental incapacity of the defendant and recognises that the part played by the defendant is necessarily limited because he or she cannot participate in the trial. In a trial of fact under section 4A which relates to an offence of possession with intent to supply a controlled drug contrary to section 5(3) of the Misuse of Drugs Act 1971, in order to determine whether the defendant has done the act charged the jury need to establish whether he or she had knowledge of the presence of the drugs and they are obliged to consider only whether he or she was in possession of the drugs without making any enquiry into his or her intent, the mental element of intention to supply forming no part of the element of the actus reus of the act charged against the defendant for the offence. Although an offence under section 5(3) has the further mental element of intent to supply, in the absence of that intent the offence committed is one of simple possession. There is no necessary bright line between the actus reus and the mens rea of an offence and in some cases such as the present the actus reus will encompass some mental element, nevertheless whilst the gravamen of the offence contrary to section 5(3) is the intent to supply, that intent forms no part of the essence of the actus reus as is clear from the wording of the statute and is the mens rea required for the offence to be established. The state of mind linked directly to the defendant’s custody of the things which are controlled drugs, the outward component of the act, is his or her knowledge that those things exist and are in his or her custody or control. It is that knowledge which turns the custody or control of the things into an injurious act which is not in issue.

The principles to be derived from the authorities are: (a) A hearing pursuant to section 4A of the 1964 Act is limited to ensuring that the interference with the liberty of the defendant consequent on the order following an adverse finding can be justified by reference to what might be proved about that which he did or omitted to do even if intention might have been clouded by delusion or other incapacity. (b) In such a hearing the jury will be concerned only with the “injurious act” or omission which would constitute a crime if done or made with the requisite mens rea. (c) In demonstrating the actus reus the Crown must show 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. (d) There is no bright line between the actus reus and mens rea and depending on the nature of the offence charged the former may involve mental elements. A proper consideration of the acts required to prove an offence involves an offence-specific consideration of its ingredients. (e) In some cases there are practical difficulties in distinguishing between the act of the crime (the actus reus) and the mental element (the mens rea) because, in some cases, the act of the crime might include a mental element. (f) In each case, it will be necessary to analyse with care the gravamen of the allegation which constitutes the act or omission for the purposes of section 4A. A statutory offence will require interpretation of the language used and of the pleaded particulars of the offence, which may result in a conclusion that the act of which the jury must be sure, goes beyond physical acts and encompasses some aspect of the defendant’s intention or purpose at the relevant time. In such circumstances that intention or purpose results in the act being an injurious act in which the two components are indissoluble and only a consideration of all matters provides real meaning to the jury’s verdicts. (g) A state of mind not directly linked to, or the reason for, the outward component of the act does not form part of the act charged as the offence and will not be a matter for the jury to determine. (h) In a case where there is objective evidence which raises a prospective defence to the actus reus of the offence charged, albeit one entailing some consideration of the mental state of the defendant, the jury should not find that the defendant did the act unless it is satisfied beyond reasonable doubt on all the evidence that the Crown has negatived the defence. (i) Where a prospective defence does not relate to the actus reus of the offence charged, it is not open to the jury to consider issues of mens rea and so on a charge of murder it is not open to the jury to consider lack of specific intent, diminished responsibility and provocation (the last of which is relevant only when the jury is satisfied the defendant had the requisite mens rea for murder) (paras 1, 28, 29–31, 33, 34, 35).

R v Antoine [2001] 1 AC 340, HL(E) and R v Attorney General’s Reference (No 3 of 1998) [2000] QB 401, CA applied.

R (Young) v Central Criminal Court [2002] 2 Cr App R 178, DC, R v Grant [2002] QB 1030, CA, R v B (M) [2013] 1 WLR 499, CA and R v Wells [2015] 1 WLR 2797, CA considered.
Matthew Keliris-Thomas (assigned by the Registrar of Criminal Appeals) for the defendant.

Tim Naik (instructed by Crown Prosecution Service, Appeals Unit, Special Crime Division) for the Crown.

<p align="right">Georgina Orde, Barrister</p>

Referenced Legislation

Criminal Procedure (Insanity) Act 1964 (c 84), s 4A

Misuse of Drugs Act 1971 (c 38), s 5(3)