B, R v

This is the judgment of the court to which all three members have contributed. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this judgment and so it will be anonymised accordingly. At the outset of the hearing on 9 March 2012 we gave leave to appeal on all the issues raised and we shall therefore refer to “the appellant” throughout this judgment.

The principal issue that arises on this appeal is one of statutory construction. It is: what, within section 4A(2) of the Criminal Procedure (Insanity) Act 1964 (as amended - “the 1964 Act”) constitutes “…the act…charged against him as the offence” when a defendant has been charged on two counts of voyeurism, contrary to section 67(1) of the Sexual Offences Act 2003 (“the SOA”) and he has been declared by the trial judge to be unfit to be tried by reason of disability pursuant to section 4(5) and (6) of the 1964 Act? After the judge’s ruling that the appellant was unfit to be tried, the jury determined that the appellant had committed “the act…charged against him as the offence” in respect of one of the two counts of voyeurism. Two other points arise on this appeal as a result of the jury’s decision, which led the judge to impose on the appellant a two year supervision order and a Sexual Offences Prevention Order (“SOPO”). The appellant also had to register on the Sex Offenders’ Register for five years. Both the SOPO and the registration order are challenged.

For convenience we have set out the provisions of section 67(1), section 68, section 80, section 104(1), (2) and (3) of the SOA and section 4, 4A(2) and 5 of the 1964 Act (as amended) in an Appendix to this judgment. Sections 80 and 104 of the SOA are relevant to the second and third issues that arises on this appeal. We have also set out sections 15 and 16 of the Criminal Appeal Act 1968 (as amended).

The case came before us on 9 March 2012 upon the referral of the application for leave to appeal to the full court by the single judge. Because the appellant had been declared by the trial judge to be suffering from a disability and so unfit to stand trial, the application for leave to appeal against the finding by the jury that the appellant had committed the acts charged against him as the offence in respect of one of the two matters charged was made pursuant to section 15 of the Criminal Appeal Act 1968. The application for leave to appeal against the SOPO is brought pursuant to section 110(1)(b) of the SOA and section 11 of the Criminal Appeal Act 1968 (as amended). The appeal against the order that the appellant must register on the Sex Offenders’ Register depends upon the outcome of the appeal on the first and principal issue.

After we had heard oral argument on the substance of the appeals from Mrs P May on behalf of the appellant and from Ms A Ginn on behalf of the Crown on 9 March 2012 we reserved judgment.

The appellant is now 24. On 20 April 2010 he was 23 and of previous good character. On that day two young mothers, with their six year old sons, were at the Hemel Hempstead Sports Centre to take their sons for a swimming lesson. They used the family changing rooms, which have cubicles and the panels separating them have a gap between the bottom of the panels and the floor. In each case the mother alleged that whilst their son was changing into his swimming trunks the appellant’s head appeared in the gap and looked up at their son who was naked at the time. Officials were alerted and the appellant was arrested and interviewed by the police. He said that he was lying on his back in the adjoining cubicle because his back hurt.

Each of the two counts in the Indictment dated 6 August 2010 alleged voyeurism contrary to section 67(1) of the SOA. The particulars of offence followed the same form in each count. They stated that the appellant, on 20 April 2010, “for the purpose of sexual gratification, observed [X or Y as the case might be] doing a private act, knowing that [X or Y] did not consent to being observed for [the appellant’s] sexual gratification”.

At the Plea and Case Management Hearing in the Crown Court at St Albans on 6 September 2010 it became clear that the appellant suffered from a learning disability and autistic spectrum disorder so that there would be an issue as to whether he was fit to be tried. The PCMH was adjourned to enable psychiatric reports to be prepared. The defence instructed Dr Michael Alcock, a consultant forensic psychiatrist, and Dr Art Anderson, a consultant clinical psychologist. The CPS instructed Dr Richard Taylor, a consultant psychiatrist. Their reports agreed that the appellant suffered from an autistic spectrum disorder in the form of Asperger’s syndrome and a learning disability reflected in an overall IQ score of 66. Dr Alcock and Dr Taylor agreed that the appellant was unfit to plead or stand trial; Dr Anderson concluded that the appellant was fit to plead but was not of sufficient cognitive capacity to understand the trial process, nor instruct counsel during the trial.

The matter came before HHJ Bright QC, sitting in the Crown Court at St Albans, on 6 July 2011. He had read all the doctors’ reports. He ruled, pursuant to section 4(5) and (6) of the 1964 Act, (as amended by the Domestic Violence, Crime and Victims Act 2004), that the appellant was not fit to plead or to stand his trial. He based his conclusion on the doctors’ reports, with which he agreed. His ruling continued:

“Accordingly, I find the [appellant] is not fit to plead and stand his trial. Having made that finding section 4A(2) of the 1964 Act requires the trial of an issue by a jury as to whether they are satisfied as regards each of the counts on which the accused was to be tried that he did the act or acts or made the omission or omissions charged against him as the offence or offences. The trial of that issue in this case will now proceed.”

It appears that after this ruling there was no separate consideration by the judge, as there should have been, of the question of who is the best person to be appointed by the court to put the case for the defence. As this court reiterated in R v Norman (Leslie), (Footnote: ¹) this is a duty personal to the court, which must consider afresh which person should be appointed; it should not necessarily be the same person who has represented the defendant to date, because it is the responsibility of the court to be satisfied that the person appointed is the right person for this difficult task. As Thomas LJ explained in R v Norman: (Footnote: ²)

“The responsibility placed on the person [appointed to represent the defendant who is found to be under a disability and so unfit to be tried] is quite different from the responsibility placed on an advocate where he or she can take instructions from a client. The special position of the person so appointed is underlined by the fact that the person is remunerated not through the Criminal Defence Service but out of Central Funds. Given the responsibility that the Act places on the court, it would not be unusual if the judge needed a little time to consider who was the best person to be so appointed”.

After his ruling the judge invited counsel to make submissions on the scope of the exercise which the jury would have to undertake pursuant to section 4A(2) of the 1964 Act; viz. what matters would the jury have to consider in order to decide whether they were satisfied that, in respect of each of the counts that the appellant was to have been tried, he “did the act…charged against him as the offence”. The submission of Mrs May, for the defence, was that, in order to fulfil their function according to section 4A(2) of the 1964 Act, the jury would have to decide whether the appellant observed each of the two young boys doing a private act “for the purpose of sexual gratification”. Mrs May submitted that it would be anomalous if the appellant had to register on the Sex Offenders’ Register if all the jury had decided was that the appellant had observed the boys doing a private act, viz. undressing and changing into swimming trunks in a closed cubicle, and the jury had not had to determine the purpose of the appellant’s observation. Mrs May particularly emphasised the serious consequences of a finding against the appellant. Ms Ginn, for the prosecution, submitted that the jury would only have to decide whether the appellant had observed each of the two young boys doing a private act,

The judge gave his ruling on the issue. We will have to consider it in more detail below because it is at the heart of the principal issue on this appeal. The essence of the judge’s decision is at page 7 – 8 of the transcript:

“It seems to me…that all that is required for the prosecution to prove in this case is that [the appellant] on 20 April 2010 observed the relevant boy doing a private act. It seems to me that the Crown does not need to prove either that it was for the purpose of sexual gratification or that it was necessarily done knowing that the victim did not consent to being observed for sexual gratification. Those are elements which would be appropriate in any case bar a case where a particular defendant is found to be suffering from a disability which makes him unfit to plead….the Act of Parliament is, in my judgment clear that the jury’s finding is a finding in relation to the act which constitutes or would constitute the offence, not the mental elements that are attached to it”.

The essence of Mrs May’s case on the appeal against the determination of the jury is that the judge was wrong to limit the scope of the jury’s investigation to the issue of whether the appellant observed either boy doing a private act. In her submission the jury were obliged to determine whether the appellant was observing the boys (doing a private act) for the purpose of sexual gratification.

Following the judge’s ruling the prosecution then called its evidence and the judge summed up the issues for the jury’s determination. In his summing up the judge said that there was no dispute that each of the two boys was doing a private act at the relevant time. He said (at page 5 of the transcript) that the key question for the jury to decide in relation to each count was “…whether [the appellant] observed the child in question doing a private act”. Before us Mrs May has criticised that direction on the same basis that she criticised the prior ruling.

The judge directed the jury on the meaning of the word “observe” , which he said (page 5) meant “deliberately watch as opposed to incidentally seeing”. There is no complaint about that aspect of the summing up. The judge reminded the jury that it was the appellant’s case that he had incidentally seen the boys doing a private act whilst lying on his back to relieve his back pain.

At page 7 the judge reminded the jury that they were not concerned to decide what was going on in the appellant’s head at the time he did whatever they found that he was engaged in doing. His summing up continued (at 7C-8B):

“You are not concerned to decide whether his motive was or was not a sexual one or whether he knew that what he was doing was wrong or knew that it was inappropriate or that it would be regarded by other people as wrong or inappropriate, that is not the issue you are hear to decide…. the mental element of what was happening so far as [the appellant] is concerned is not your concern…and for this reason you are not concerned with whether [the appellant] may have been making noises, whether they were groaning noises or any other sort of noises at the relevant time and if so why he might have been doing that of course unless you take the view which the defence might invite you that if he was making noises they were likely to be because he was suffering from back pain at the time…you are not concerned with his motive, his intention – you are concerned with what he actually did”.

That passage is also criticised by Mrs May, because, she submits, it was based on the erroneous ruling of the judge.

On 8 July 2011 the jury determined that the appellant had observed the boy doing a private act with regard to what had been count 2, but acquitted him in relation to the boy the subject of what had been count 1.

The judge sentenced the appellant on 9 September 2011. In doing so he emphasised that he was not finding the appellant to be “some sort of sex maniac who is a danger to the public; I don’t think that for one second”. The judge accepted that the appellant was not to be characterised as “predatory” but rather as “… simply someone who takes an interest in matters sexual it seems to me, whether the object of your intention be adult or child”. The judge imposed a supervision order for 2 years pursuant to section 5(1)(a) and 5(2)(b) of the 1964 Act. The judge also stated that, as a result of the determination of the jury and the supervision order, the appellant must register on the Sex Offenders Register for a period of 5 years. Given the conclusion of the jury and the terms of section 80(1)(c) of the SOA, that requirement necessarily followed. As already noted, this order is challenged on appeal.

Lastly, the judge considered whether he should make a SOPO. He had jurisdiction to do so pursuant to section 104(3)(b) of the SOA. The judge said (at 6C-E of his sentencing remarks):

“In my judgment, and I make it perfectly plain, I entirely understand the jury’s finding but I am equally convinced that this is a case where the public need protection from your inquisitiveness in establishments where there are changing facilities, and although it may be a kind of inquisitiveness that does not always have a sexual connotation, nevertheless it seems to me that public deserve to be protected from people who behave as if they were voyeurs, and certainly your behaviour in relation to count 2 filled that particular description”.

The judge therefore made a SOPO for a period of 5 years which prohibited the appellant from attending the changing rooms of either any leisure establishments or of any shop, unless accompanied by a member of his family. The appellant was also prohibited from engaging in any work or organised leisure where any child under the age of 16 was likely to come in contact with the appellant.

There are two grounds of appeal against the finding of the jury and one ground against sentence. The first ground against the finding is that the jury should have been instructed to consider the element of “for the purpose of sexual gratification” as a part of their consideration of whether the appellant had done the “act charged as the offence” of voyeurism, contrary to section 67(1) of the SOA. Mrs May argued that this element was a part of the “act” of the offence of which the appellant had been charged and could not be divorced as being an independent mental element.

On this ground, Ms Ginn submitted that the ruling and direction of the judge to the jury were correct. She submitted that the only issue for the determination of the jury (given that it was agreed that the boy in question was, at the relevant time, doing a “private act”), was whether the appellant was observing the boy doing that private act. Ms Ginn accepted that the word “observes” in section 67(1) connotes a deliberate, as opposed to an accidental, action on the part of a defendant. She submitted that the judge’s direction to the jury on the meaning of “observes” was correct.

We will call this Issue One.

The second ground of appeal against the jury’s finding is that the jury did not have the full expert evidence of the prosecution and defence psychiatrists to consider in assessing whether the appellant, in acting in the way he did in the cubicle, was deliberately observing each of the two boys doing the private act. Ms May submitted that, given the disability of the appellant, they needed to have this expert evidence before they could properly determine the nature of the act done by the appellant and whether he had deliberately observed the boys.

Ms Ginn submitted that the issue of whether the appellant had deliberately observed the boys was one of fact and one for the jury to determine on the evidence. It did not need any expert evidence to determine what she submitted was a straightforward question of fact.

We will call this Issue Two.

With regard to the SOPO, the ground of appeal is that, even if the ruling of the judge on the scope of the exercise that the jury had to undertake was correct and the finding of the jury cannot be impugned, the judge should not have imposed a SOPO. Mrs May submitted that the judge did not have material before him which would entitle him to conclude that the appellant’s behaviour was such that it was necessary to make a SOPO, for the purpose of protecting the public or any particular member of the public from serious sexual harm from the appellant, as is required by section 104(1)(a) of the SOA.

Ms Ginn submitted that there was such material and that the judge’s exercise of his judgment in making the SOPO as he did could not be regarded as unreasonable or irrational.

We will call this Issue Three.

As already noted, the question of whether the appellant has to register on the Sex Offenders’ Register must depend on whether we allow the appeal on the jury’s finding, viz. Issue One.

Section 4 and 4A of the Criminal Procedure (Insanity) Act 1964: the legislative history

In R v H (Footnote: ³) Lord Bingham of Cornhill noted that statutes in the United Kingdom had both recognised and dealt with two allied but different problems that arise in criminal proceedings. The first problem concerns defendants whose mental state at the time of the crime was, or may have been, such as to render them irresponsible for the serious crime of which they are accused. The second concerns defendants accused of committing a serious crime who, whatever their mental state at the time of the crime, are, or might be, in such a mental state at the time of their trial that they are unfit to be tried. (Footnote: ⁴) The present case concerns the second of those problems. Lord Bingham characterised the challenge which underlay all the relevant legislative provisions as being:

“…on the one hand to treat the accused person in a fair and humane way and on the other to protect the public against the risk of danger posed by a person who could not (because of insanity) be held full responsible for his conduct or could not (because of his unfitness to plead) be tried in the ordinary way to decide whether he was guilty or not”. (Footnote: ⁵)

Under the common law, even when insanity at the time of the alleged crime was not in issue, the question might still arise as to whether the defendant was “unfit to plead”, because he was mentally incapable of doing so at the time of the trial. The classic formulation of the issues to be considered by a jury charged with considering this issue was set out in Alderson B’s directions to the jury in R v Pritchard. (Footnote: ⁶) That formulation was reaffirmed in R v Podola, (Footnote: ⁷) in which Lord Parker CJ said the tests “may be said to be firmly embodied in our law”. (Footnote: ⁸) For present purposes, the key issue, summarising Alderson B’s direction as explained in Podola, can be stated as whether a defendant is of sufficient intellect to understand the course of proceedings in the trial so as to make a proper defence. In R v Walls, (Footnote: ⁹) Thomas LJ, giving the judgment of the court, affirmed that the Pritchard criteria remain the firmly established law, despite criticisms that have been made of them. He said that it was the duty of the court to consider whether the defendant is “unfit to plead” in accordance with those criteria in the light of all the evidence before it, including the expert psychiatric evidence. (Footnote: ¹⁰)

When the question arises of whether a defendant is under a disability which affects his ability to be tried, the procedure to be followed is now laid down by the Criminal Procedure (Insanity) Act 1964 as amended by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 and the Domestic Violence, Crime and Victims Act 2004. The latter Act removed from the jury the question of whether a defendant was fit to stand trial and placed the decision in the hands of the judge. (Footnote: ¹¹)

The 1964 Act (as amended) is the last in a series that have dealt with the procedure to be adopted when there is an issue as to the sanity of a defendant at the time of the offence or at the time of trial. The first Act was the Criminal Lunatics Act 1800, whose purpose has been said to be to protect society against the possible recurrence of the dangerous conduct of an insane person. (Footnote: ¹²) Under that Act if it found that a person was insane at the time of “treason, murder or felony…and such person is acquitted” then “…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 o account of such insanity…”. In that event the person was to be ordered to be kept in “strict custody…until His Majesty’s pleasure shall be known…”. We have emphasised in bold certain wording because it is relevant to Issue One.

In 1883 Parliament passed the Trial of Lunatics Act. Section 2(1) of this Act provided that:

“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 the 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, 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”.

[Emphasis to relevant wording added]

It will be immediately apparent that the wording of the 1800 Act had not been repeated in the 1883 Act and that the new wording of “did the act or made the omission” is the same as that used in section 4A(2) of the 1964 Act, as amended, in respect of a defendant who has been determined to be under a disability and so cannot stand his trial.

The Criminal Procedure (Insanity) Act 1964 amended the form of special verdict to be brought in when a jury concluded that a defendant was insane at the time of the offence charged. However it did not alter the statutory ingredients for such a verdict, which had been laid down by the 1883 Act. The jury still had to decide whether the person did the act or made the omission charged. Therefore, the 1964 Act maintained the distinction established by the 1883 Act between the physical act or actions (or omission made) of the defendant and his state of mind at the time when he carried them out. (Footnote: ¹³)

Most of the present framework for the procedure to be adopted when the question arises of whether the defendant is “unfit to plead”, or more accurately nowadays, is unfit to stand his trial, was introduced by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991. Sections 2 and 3 of that Act provided that new sections 4, 4A and 5 of the 1964 Act be substituted for the previous provisions. However, even under these new provisions the issue of a defendant’s fitness to be tried was to be determined by a jury. As already noted, the present procedure, whereby fitness to be tried is to be determined “by the court without a jury” was introduced by the 2004 Act. (Footnote: ¹⁴)

In Attorney General’s Reference (No 3 of 1998) (Footnote: ¹⁵) this court had to consider what had to be proved when an inquiry was embarked upon under the 1883 Act to determine whether the defendant ‘did the act or made the omission charged” when insanity was assumed. The judgment of the court was given by Judge LJ, as he then was. The judgment concluded, in a case where insanity was presumed, that the Crown had to prove:

“(a)….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 & Hogan, Criminal Law 8^th Ed (1996), p 29 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”. (Footnote: ¹⁶)

In the course of the judgment in that case, the court commented on a recent decision of another division of this court in R v Egan. (Footnote: ¹⁷) That case had decided that where a defendant had been found unfit to be tried on a count of theft and the jury had to determine, on the evidence whether they were satisfied, for the purposes of section 4A(2) of the 1964 Act that the defendant had done “the act…charged against him as the offence”, the prosecution had to prove all the necessary ingredients of what would otherwise have been the offence of theft. In Attorney General’s Reference (No 3 of 1998), this court came to the conclusion that the decision in R v Egan was decided “per incuriam”, because it had neither analysed the statutory history nor the current framework of the 1964 Act; nor, in addition, had it taken account of the House of Lords’ decision in Felstead v The King. (Footnote: ¹⁸)

R v Antoine (Footnote: ¹⁹)

In R v Antoine the defendant was found unfit to stand trial for murder. The issues that this court (Footnote: ²⁰) identified for decision were: (1) whether all the elements of murder charged against the defendant had to be established (including the mental element) for the purposes of the jury’s determination of whether the defendant had done the act charged against him as the offence; and (2) could the defence seek to prove diminished responsibility in answer to the murder charge. This court declined to conclude that R v Egan was decided per incuriam and so avoided the first question. On the second question the court concluded that it was not open to a defendant, in putting the case for the defence under section 4A(2) of the 1964 Act to rely on the defence of diminished responsibility within section 2 of the Homicide Act 1957. The court certified only the second issue as a point of general public importance and the House of Lords gave leave to appeal on it.

Although there was only one certified issue of law before it, the House of Lords heard argument on the wider question of what the Crown had to prove when a jury had to determine whether the defendant had done “the act or made the omission charged against him as the offence” within section 4A(2) of the 1964 Act. Counsel formulated this “wider question” as follows: (Footnote: ²¹)

“Where, pursuant to section 4A(2) of the Criminal Procedure (Insanity) Act 1964, a jury has to determine whether an accused did the act or made the omission charged against him as the offence, must the jury be satisfied of more than the actus reus of the offence? Must the jury be satisfied of mens rea?”

Lord Hutton gave the single reasoned speech with which the other four law lords agreed. On the certified question, in his opinion (Footnote: ²²) the Court of Appeal had been correct to hold that the provisions of section 2 of the 1957 Act could not apply to the hearing of a determination under section 4A(2) of the 1964 Act when the “act” charged against the defendant as the offence was murder, or, more accurately (as the defendant had a disability), unlawful killing.

Lord Hutton then considered the “wider question”. He analysed the decisions in R v Egan and Attorney General’s Reference (No 3 of 1998). He opined that the former was wrongly decided and the latter was correct. (Footnote: ²³) He gave four principal reasons for this conclusion, which are relevant to our analysis of what constitutes “the act” for the purposes of section 4A(2) of the 1964 Act when a jury has to determine whether a defendant who has a disability has done the act charged as the offence of voyeurism.

First, Lord Hutton stated (Footnote: ²⁴) that the use of the words “did the act” in the 1883 Act, which was in contrast to the words “committed the offence” in the 1800 Act, was significant in considering the ambit of the words “the act …charged against him as the offence” in the 1964 Act. The use of those words pointed to the conclusion that the word “act” did not include intent. Secondly, if the word “act” included the mental element of specific intent in the offence of murder then it had a bizarre consequence which Parliament could not have intended. Thus a defendant who had killed someone but who was insane when he did so and was unfit to stand trial as a consequence would have to be acquitted, because the necessary mental element of the offence could not be proved because of the existence of the insanity at the time of the alleged offence. (Footnote: ²⁵) Thirdly, although the Butler Committee of 1975 on Mentally Abnormal Offenders had stated that when a defendant is found to be under a disability and there has to be a trial of the facts, “the issues to be decided include the defendant’s state of mind”, (Footnote: ²⁶) that view had not been carried into section 4A(2) of the 1964 Act when it was amended by the 1991 Act. This was because it was both unrealistic and contradictory to decide issues of the mental state of the defendant if the reason for him being unfit to be tried was the defendant’s very lack of a normal mental state. (Footnote: ²⁷)

Lastly, Lord Hutton considered that the purpose of section 4A(2) was:

“…to strike a fair balance between the need to protect a defendant who has, in fact, done nothing wrong and is unfit to plead at his trial and the need to protect the public from a defendant who has committed an injurious act which would constitute a crime if done with the requisite mens rea...”

Lord Hutton considered that the section struck this balance by distinguishing between “… a person who has not carried out the actus reus of the crime charged against him and a person who has carried out an act (or made an omission) which would constitute a crime if done (or made) with the requisite mens rea”. (Footnote: ²⁸) Lord Hutton did not discuss further what he meant by an “injurious act”. The problem is, therefore, in discerning what elements of the “offence” with which the person under a disability is charged constitutes the “injurious act” and what constitutes the mental element.

However, Lord Hutton recognised that there were, in some cases, practical difficulties in distinguishing between the “act” of the crime (what he called actus reus) as opposed to the mental element (what he called mens rea) and he recognised that in some instances the “act” of the crime itself may include a mental element. (Footnote: ²⁹) Moreover, he also recognised that certain defences, such as accident, mistake and self-defence, could relate to the mental state of the defendant. How was that to be dealt with in a case where there was a determination under section 4A(2) where the defendant was declared unfit to stand trial because of his mental disability? Lord Hutton proposed the following solution:

“If there is objective evidence which raises the issue of mistake or accident or self-defence, then the jury should not find that the defendant did the “act” unless it is satisfied beyond reasonable doubt on all the evidence that the prosecution has negative that defence…..But what the defence cannot do, in the absence of a witness whose evidence raises the defence, is to suggest to the jury that the defendant may have acted under a mistake, or by accident, or in self-defence, and to submit that the jury should acquit unless the prosecution satisfies them that there is no reasonable possibility that that suggestion is correct”. (Footnote: ³⁰)

Cases Subsequent to R v Antoine

There are two cases subsequent to Antoine that we should consider. These are R v Grant (Footnote: ³¹) and R(Young) v Central Criminal Court. (Footnote: ³²)

The appellant was charged with the murder of her boyfriend, whom she had stabbed after losing her temper in a quarrel. The first jury (Footnote: ³³) found her unfit to be tried by reason of disability within the 1964 Act. Before the second jury was empanelled counsel for the defence submitted that he should be allowed to put before the jury the defences of lack of intent and provocation. He also raised issues about the compatibility of the proceedings with Article 6 of the ECHR. The judge rejected those submissions and the jury found that the defendant had done “the act…charged as the offence”. The judge certified the question of whether the issues of lack of intent and provocation could be put to the jury in the context of a section 4A(2) determination was fit for appeal. (Footnote: ³⁴)

The judgment of the Court of Appeal was given by Richards J. He stated that it was clear from the decision in Antoine that the issue of lack of intent could not be raised by a defendant in a section 4A(2) determination, because that fell squarely within the territory of mens rea. (Footnote: ³⁵) As for the issue of provocation, Richards J noted: (1) it is only relevant if all the elements of murder have been proved; and (2) provocation is closely connected with the defendant’s state of mind because it is concerned with the effect of the deceased person’s conduct on the accused’s state of mind. He concluded that it would be “unrealistic and contradictory” for a jury to have to consider what effect the conduct of the deceased would be on a defendant’s state of mind when a jury had to make a determination under section 4A(2). (Footnote: ³⁶) Richards J noted that, for the purposes of section 4A(2), the distinction between actus reus and mens rea could not be regarded as clear cut following the House of Lords’ decision in Antoine. But he also noted that the defences that their Lordships said could be raised in the context of a section 4A(2) determination (if there was objective evidence to do so) all related to the actus reus of the offence charged. He continued:

“By contrast it is clear that their Lordships did not consider it open to the jury to consider issues of mens rea under section 4A(2) whatever the circumstances; and within that were included the issues of lack of specific intent and diminished responsibility. For the reasons already given, the same must apply to the defence of provocation”. (Footnote: ³⁷)

In R(Young) v Central Criminal Court, the defendant was charged with an offence under section 47(1) of the Financial Services Act 1986. (Footnote: ³⁹) It was alleged that he, being an investment adviser to an investment fund, dishonestly concealed material facts relating to an investment in certain bonds by an investment fund. The particulars of the offence alleged that the material facts that the defendant, (as an investment adviser), dishonestly concealed were his present intention (a) to maintain a personal interest in the bonds, (b) to maintain control of the bonds, and (c) to manipulate the conversion of the bonds so as to enhance the value of his personal interest. A jury decided the defendant was unfit to be tried. The “trial” judge (Jackson J as he then was) was then asked to give a ruling on whether the second jury should consider, as part of their determination of whether the defendant did the “act…charged as the offence”, the defendant’s present intention as to his future conduct in relation to the bonds, as set out in the particulars of offence. Jackson J made two rulings. He ruled, first, that the words “material fact” in section 47(1) of the 1986 Act included a present intention as to future conduct and also to statements of belief. (Footnote: ⁴⁰)

Jackson J next ruled on whether the question of the defendant’s present intention as to his future conduct could be considered by the jury as part of their section 4A(2) determination of whether the defendant had done the “acts...charged as the offence.” He reviewed the 1964 Act and R v Antoine. He said the principles established were:

“(1)

So far as possible, the court’s enquiry at a section 4A hearing should focus upon the defendant’s actions as opposed to his state of mind; (2) this distinction is dictated by the language of section 4A and the social purpose which it serves; (3) however, this distinction cannot be rigidly adhered to in every case because of the divers nature of criminal offences and criminal activity”.

Jackson J then applied those principles to the offence created by section 47(1) of the 1986 Act. He concluded that it was not possible to determine whether the defendant committed “the acts” alleged, which were the concealment of material facts from potential investors in the bonds, without enquiring into the three specific intentions alleged against him. But, he said, “it is not necessary and not appropriate to consider whether the defendant had the mens rea which is set out in section 47(1) of the [1986 Act]”. He therefore concluded that, on the section 4A(2) determination, the prosecution was entitled to adduce evidence that the defendant did, at the relevant time, have the three intentions identified above; but the jury was not required or permitted to determine whether the defendant had acted dishonestly, or whether he was “acting for the purpose of inducing or being reckless as to whether he might induce the [investment fund managers] to make an investment”. (Footnote: ⁴¹)

The matter then went to the Divisional Court. The first judgment was given by Rose LJ. He agreed with Jackson J’s analysis. (Footnote: ⁴²) Stanley Burnton J agreed with Rose LJ. Leveson J gave a further judgment. He said:

“A consideration of whether the defendant did the act, or made the omission charged against him as the offence which is required by section 4A(2) of [the 1964 Act] must, therefore, in the context of this case, go beyond purely physical acts. Indeed, the actus reus of this offence is far wider than that; as Rose LJ has observed, it involves concealing a positive state of affairs, namely the nature of the fixed intention which this defendant had at the time”. (Footnote: ⁴³)

The judgments therefore distinguish between four elements. First, there are what Leveson J describes as the “purely physical acts” involved. In that case those must include omissions, because the “purely physical acts” must refer to what facts the defendant did state to the potential investor and what facts he omitted to state. Secondly, there are the “present intentions” of the defendant at the time he stated some facts and omitted others. Those “present intentions” are facts, as Jackson J and the Divisional Court made clear. But, thirdly, in the context of the section 47(1) offence, the defendant’s concealment of those intentions is to be regarded, for the purposes of section 4A(2) of the 1964 Act as part of the “act” done or the “omission” made that was charged against him. Lastly, there are the issues of whether the concealment was done dishonestly and the issue of the defendant’s purpose in concealing his present intentions. They are not part of the “acts” or “omissions” for the purpose of section 4A(2). They are part of the mental element of the offence charged.

Further commentary on the scope of section 4A(2)

Smith & Hogan’s Criminal Law (Footnote: ⁴⁴) criticises Lord Hutton’s suggestion in R v Antoine, when considering the “wider question”, that a jury should determine issues of mistake, self-defence or accident if there was “objective evidence” which raised one of those issues. The editors submit that those defences are simply denials of mens rea, and suggest that if those issues can be determined then any other evidence suggesting an absence of mens rea (other than that suggesting a defect of mind) should, logically, be considered. (Footnote: ⁴⁵) As they point out, the irony of the section 4A(2) procedure, which aims to protect defendants with a disability from a full criminal trial and an enquiry into their mental state which they cannot defend (because they are unfit to be tried and so cannot give instructions to their lawyers and cannot, save in exceptional circumstances, give evidence) means that the system might place them in a worse position than they would otherwise be. (Footnote: ⁴⁶)

The Law Commission’s recent Consultation Paper on “Unfitness to Plead” (Footnote: ⁴⁷) also highlights the difficulty in separating what it calls the “conduct element” of an offence from the “fault element” of an offence. It points out, with obvious correctness, that the lawfulness or unlawfulness of what an accused does may depend on his state of mind. (Footnote: ⁴⁸) This must mean that the focus of any enquiry to decide what constitutes the “act” or “omission” of a particular offence for the purposes of a determination pursuant to section 4A(2) of the 1964 Act must be upon what Lord Hutton called in R v Antoine (Footnote: ⁴⁹) the “injurious act” or group of acts – or omissions, which would constitute a crime if committed with the necessary mens rea.

What are the elements of the offence of “voyeurism” contrary to section 67(1) of the SOA?

There are four elements which would have to be proved by the prosecution in a normal criminal trial of this offence. First, the defendant must “observe” another person doing a “private act”, a term which is itself defined by section 68(1) of the SOA. The verb “observes” is not further defined in the SOA but we think it must connote a deliberate decision on the part of the defendant to look at someone doing a “private act”, as opposed to an accidental perception of someone doing a “private act”. “Observes” must also exclude a careless and, we think, reckless perception. Secondly, the other person must be doing a “private act”. The relevant acts or states of affairs are defined in section 68(1)(a), (b) and (c), but before they are “private acts” for the purposes of section 67(1), the relevant act or state of affairs has to take place in a “place which, in the circumstances, would reasonably be expected to provide privacy”. Whether a particular place is such would appear to be an objective test.

Thirdly, the defendant has to observe the other person doing a private act “for the purpose of obtaining sexual gratification”. It is clear from the use of the word “he” and “his” in section 67(1)(b) that the purpose of the deliberate observation of the private act by the defendant has to be his own “sexual gratification”, not someone else’s sexual gratification. This “purpose” can only be the result of the defendant’s own (subjective) thought process. (Footnote: ⁵⁰) It is as if he asked: “Am I deliberately observing this person doing a “private act” for a specific purpose? Yes; for my own sexual gratification”. It seems to be irrelevant whether any sexual gratification is actually obtained by the defendant, although proof that it had been would be evidence of the purpose of the deliberate observation.

Lastly, the prosecution must prove that the defendant “knows that the other person does not consent to being observed for [the defendant’s] sexual gratification”. This must involve proof of a specific state of mind of the defendant, viz. his actual knowledge that the other person does not consent to being observed (deliberately) by the defendant for the specific purpose of the defendant obtaining sexual gratification from that observation.

What constitutes the “act…charged against [the defendant] as the offence” within section 4A(2) of the 1964 Act when the offence concerned is “voyeurism”, contrary to section 67(1) of the SOA?

As a preliminary, we have decided that despite the widespread use in other cases of the Latin tags “actus reus” and “mens rea” as a means of isolating and defining what, for a particular offence, constitutes the “act...charged against[the defendant] as the offence” for the purposes of section 4A(2) of the 1964 Act, we would prefer not to do so. The Latin tags are no more precise than the English expressions. The statute uses ordinary English words and their meaning is a matter of interpretation of the statutory wording itself. Substituting imprecise terms in a foreign language does not facilitate the resolution of the present problem.

Secondly, we note that the act of deliberately observing a person naked or in their underwear, even if they were in a private place, was not of itself criminal before the SOA 2003. Even if such an act was done with the purpose of obtaining sexual gratification there was no pre-existing statutory offence of “voyeurism”, although there were examples of voyeuristic activity being charged as the common law offence of outraging public decency (Footnote: ⁵¹) or insulting behaviour under section 5 of the Public Order Act. (Footnote: ⁵²) If we ask: what are the social mischiefs which the new offence of voyeurism was created to tackle, we think the answer must be, first, the anti-social nature of deliberate observation by a person of another doing intimate acts in private, where the purpose of the observation is to obtain sexual gratification for the observer and, secondly, the fact that this activity has been linked to more serious offending behaviour by the observer. (Footnote: ⁵³)

It seems to us, therefore, that the link between deliberate observation and the purpose of sexual gratification of the observer is central to the statutory offence of voyeurism. To use Lord Hutton’s phrase, it is that purpose which turns the deliberate observation of another doing an intimate act (such as undressing) in private into an “injurious act”. We have to accept that enquiring into someone’s purpose for doing something is to enquire into that person’s state of mind when he did the relevant act. However, a person’s state of mind is, of course, just as much a fact as the outward act of deliberate observation and, in this case at least, the creation of the state of mind must be the result of a positive thought process by the observer. For the offence of voyeurism, these two actions, the one aimed at the outside world and the other going on in the consciousness of the observer, have to go together; the deliberate observation must be done simultaneously with the specific, albeit subjective, purpose of obtaining sexual gratification.

If that is so, then we must conclude that, in the case of an offence of voyeurism under section 67(1) of the SOA, the relevant “act…charged as the offence” of the purposes of section 4A(2) is that of deliberate observation of another doing a private act where the observer does so for the specific purpose of the observer obtaining sexual gratification. That omnibus activity is the “injurious act”. Although the activity has two components, they are indissoluble; together they are the relevant “act”.

As for the further element in the offence of voyeurism, the observer’s knowledge that the person observed does not consent to being observed for the purposes of the observer’s sexual gratification, that is not directly linked to the outward component of the “act”. It refers to the state of mind that the observer must have, but it is not the reason for the observation. Accordingly, for the purposes of section 4A(2), we have concluded that this element of the offence is not a part of the “act…charged as the offence” and so is not something the jury will be concerned to determine.

We think that this conclusion is consistent with the social purpose of section 4A of the 1964 Act as identified by Lord Hutton in R v Antoine and which we have quoted above. If all that a jury had to determine was whether a person deliberately observed another doing a private act, then the consequence would be that the defendant would have to be dealt with in accordance with section 5 of the 1964 Act. So he could be subject to a hospital order with or without a restriction order. He would be have to register on the Sex Offenders Register: section 80(1)(c) of the SOA. He could be the subject of a SOPO, as happened in this case. In our view, although a person observing another doing a private act can be regarded as an unpleasant nuisance, there is not the same pressing social need to protect the public from him as there would be if it were proved that the observation was done for the specific purpose of the observer’s sexual gratification.

We think that our conclusion is also consistent with the approach of this court in R(Young) v Central Criminal Court. There the key outward act of the defendant was an omission: he failed to state material facts to the potential investor. But, as in the present case, these outward failures had to be indissolubly linked to the defendant’s state of mind which gave rise to the outward failure, viz. the defendant’s present intentions as to his future activities. As Leveson J put it: the physical act concealed a “positive state of affairs….the fixed intention that the defendant had at the time”.

Consequences of our conclusion on Issue One

It must follow that the judge’s ruling that the jury need only determine whether the appellant deliberately observed each of the two boys undressing in their private cubicle was wrong as a matter of law. So, too, was his direction to the jury to the same effect. Accordingly the determination of the jury on what had been count two was based on a wrong direction of law and the determination must be unsafe. The appeal must be allowed on this ground alone.

Section 16(4) of the Criminal Appeal Act 1968 stipulates that where this court allows an appeal, made under section 15 of that Act, against a finding that the appellant who is under a disability did the act charged against him, then this court must quash the finding and must direct that a verdict of acquittal be recorded. As this court noted in R v Norman (Leslie), (Footnote: ⁵⁴) section 16(4) of the 1968 Act does not permit an application for a retrial in these circumstances. This appears to be a gap in the legislation: see R v McKenzie. (Footnote: ⁵⁵) The consequence is we have no power to consider whether we should order a retrial.

Although there is now no need to determine the other two issues that arise on this appeal, we will give our views shortly on them.

The argument of Mrs May was, as we understood it, that because the appellant had been found to be under a disability and so he would, in practice, be unable to give evidence and could not, by definition, give coherent instructions to his advisers, the only way that the jury could consider his side of the argument on what his state of mind might be was if expert evidence could be adduced on that topic. In a somewhat analogous situation in R v Norman (Leslie) this court expressed some sympathy for that argument. In the present case the expert evidence could only go to the question of whether or not the appellant’s state of mind was such that he was deliberately observing the two boys for the purpose of the appellant’s own sexual gratification. We doubt that expert evidence would be useful to the jury on that issue, which, ultimately, is a question of fact for the jury’s determination. However, we think that the issue should be left open for argument in a future case when more focused attention can be give to it in the light of the particular relevant facts of the case.

The offence of voyeurism is one of those listed in Schedule 3 of SOA for the purposes of Part 2 of the Act if, as here, the victim of the offence was under 18. That means that the judge was right to conclude that, given the jury’s finding, the applicant had to comply with the notification requirements set out in section 82 of the Act (see section 80(1) (c) of the Act) for a period of 5 years. Such a conclusion results from the direct application of the statutory provisions, not from any decision of the sentencer.

The same conclusion does not automatically follow in relation to making a SOPO. Jurisdiction to make a SOPO exists in relation to such a Schedule 3 offence if, as here, the judge found that the applicant was “under a disability” and the jury, in relation to what had been count 2, found that the applicant “had done the act charged against him in respect of such an offence”. (Footnote: ⁵⁶) However, a SOPO could still only be made if the Court “is satisfied that it is necessary to make such an order, for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant”. (Footnote: ⁵⁷) “Serious sexual harm” for the purposes of section 104 is defined by reference to “serious physical or psychological harm”. (Footnote: ⁵⁸)

The Judge dealt with the appropriateness of making such a SOPO at 6D-E of his sentencing remarks. He said that he was:

“…convinced that this is a case where the public need protection from your inquisitiveness in establishments where there are changing facilities and although it may be a kind of inquisitiveness that does not always have a sexual connotation, nevertheless it seems to me the public deserve to be protected from people who behave as if they are voyeurs, and certainly your behaviour in relation to Count 2 fitted that description.”

In contrast to the “dangerousness” provisions of the CJA 2003, there is no need for a judicial finding that the risk of serious sexual harm in the future has to be a “significant risk”. But it seems to us that there has to be a finding by the judge that it is “necessary” to protect the public not simply from “inquisitiveness in establishments where there are changing facilities” but from future “serious sexual physical or psychological harm”. In this case the judge made no such finding. Indeed, at page 5C-D of the transcript he said of the appellant that there was no “sexual deviancy in any sense at all” and there was no suggestion that he was “a predator or that [he had] predatory interests in children.”

The only reference in the PSR to the Police application for a SOPO said that it “may well be of assistance” because the applicant had “very little insight or understanding of his behaviour.” In Dr. Alcock’s psychiatric report at paragraph 9.10 the writer stated that he did not believe that the applicant “presents any meaningful risk or harm to the public whether by way of sexualised offending or otherwise”. In Dr. Ishweran’s report at paragraph 7.4 he wrote that “there is no evidence to indicate that he {the applicant} had any sexually deviant interest or exaggerated sexual urge”. At paragraph 7.8 he stated that there was no indication that there was an escalating pattern of sexualised and offending behaviour as it could be only a phase he was going through.

In short, in our view, there was no proper basis for making a SOPO at all in this case. Therefore, even if we had not allowed the appeal on Issue One, we would have allowed the appeal on Issue Three, pursuant to section 110(1)(b) of the SOA.

For the reasons give above under Issue One, we allow the appeal against the finding that the appellant did the “act…charged against him” in respect of what had been count 2. We quash that finding. Furthermore, pursuant to section 16(4) of the Criminal Appeal Act 1968, we direct a verdict of acquittal of the appellant be recorded in respect of that matter. In view of the fact that there is no statutory power to consider whether to order a retrial, given of the terms of section 16(4) of the 1968 Act, and also because there may be public concern about the outcome of this appeal, we feel we should emphasise four things: first, even on the limited directions of the judge, the jury determined that they were not satisfied that the appellant did deliberately look at one of the two young boys. Secondly, as for the other boy, there was no finding whatsoever that the appellant observed the boy for the purpose of the appellant’s sexual gratification. Thirdly, neither the report writers nor the judge considered the appellant to be, in any way, a sexual predator. Indeed the judge went out of his way to say the opposite. Fourthly, the appellant is - and is entitled to be treated as - an autistic young man who has had and continues to have a good character.