SO v The Crown

This appeal has raised problems on the interconnection between an issue of self-defence and an issue of insanity. The potential difficulties arising have been compounded by the fact that they seem not to have been fully appreciated or confronted in the course of the trial below. To some extent, in fact, they only really emerged in the course of argument on the appeal, when the respective stances adopted at trial by the defence and prosecution had been clarified.

In essentials the central question raised is this. Did an insanely held delusion on the part of the appellant that he was being attacked or threatened, causing him violently to respond, entitle him to an acquittal on the basis of reasonable self-defence? This, among other things, involves consideration of the meaning and effect of s.76 of the Criminal Justice and Immigration Act 2008 (“the 2008 Act”).

The background is as follows.

The appellant is a man aged 29. Prior to the events in question he had no previous convictions. He apparently had at one stage held a respectable position in events management. He was convicted on 27 March 2013, after a trial lasting some days before Mr Recorder Peddie QC and a jury at Isleworth Crown Court, of two counts of affray and one count of inflicting grievous bodily harm contrary to s.20 of the Offences Against the Person Act 1861. In due course he was sentenced to a term totalling 18 months’ imprisonment.

The facts, in summary, were these. On 30 June 2011 the appellant was found in the staff room of a coffee shop in the Westfield Shopping Centre in Shepherd’s Bush. He was not an employee there. The manager, a Mr Flatau, was called. He confronted the appellant, whom he was to describe as “twitching in a strange manner”. His general behaviour disconcerted Mr Flatau, who locked the changing room door. The police were called. When they arrived, the appellant had sought to hide in a void in the ceiling. The police entered and asked him to come down but he threw some crockery at the police, hitting PC Tarrant and causing very minor injury. He was asked to desist and come down but he did not do so. The incident escalated and crockery continued to be thrown. The appellant also had some piping or tubing with him. The dog unit and territorial support group were summoned.

In refusing requests to come down, the appellant at one stage gave as his reason: “because I’m selfish”. He also said that he was reading a book. Ultimately, he was prevailed upon to come down and he did so, nevertheless holding a fire extinguisher which he aimed at one of the officers. By this stage the police had tasers but they decided that it was not necessary to use them. There was evidence that Mr Flatau was also present at some stage during the incident as it unfolded. These matters constituted the first count of affray.

The appellant was arrested and taken to the local police station, arriving there shortly after 7 p.m. A medical examination indicated a negative result for the presence of any drugs or alcohol, although a stated history of cannabis use was recorded. No medical or mental health issues were at that stage identified. Thereafter observation by CCTV in the cell indicated the appellant on occasion drinking from the lavatory cistern as well as gesticulating and talking to himself.

He was interviewed at 9.30 the following morning (1 July 2011). In the course of it he said that he “did not feel okay” but did not know what was wrong with him. He was returned to his cell, where he continued to behave strangely. At 12.45 p.m. he was seen in his cell by Mr Giacalone, a specialist drugs worker. The appellant told him that he wanted help for his problem with cannabis use. The appellant was throughout tense, with his fists clenched. Mr Giacalone was to say that he thought that the appellant had mental health problems. He said that the appellant’s answers to questions made no sense. Mr Giacalone did not feel comfortable alone in the cell with the appellant and stopped the assessment. He opened the cell door and asked the appellant to sit on a bench in the custody suite.

As was captured on CCTV, and as was the subject of other evidence, the appellant then sought to move towards the exit of the custody suite. Sergeant Watts calmly approached him. The appellant then punched him in the face, knocking him to the ground. He also punched a slight female police officer, PC Thompson, who had next intervened, hard in the face, displacing her teeth and fracturing her jaw (this was to constitute the s.20 count). The panic button was pressed. Other officers converged on the appellant. The appellant was very violent, lashing out at whoever came near him. Members of the public in the custody suite understandably moved away. PC Stuart was punched twice and another officer was scratched and gouged. The appellant was throughout shouting or shrieking or wailing. One of the officers described the appellant as appearing to be “absolutely manic in his behaviour”. A description given by another officer that this was a “most violent outburst” entirely accords with the CCTV evidence. In the police log Sergeant Watts noted concerns that the appellant “may have acute behavioural disorder”. This incident in the custody suite constituted the second affray count. After the appellant was overpowered and returned to his cell, observation continued to show him behaving very strangely.

The appellant was charged on 2 July 2011 and on that day “sectioned” under the relevant provisions of the Mental Health legislation. He was committed to hospital. The evidence was that initially while there he lay on his bed humming or “acting strangely”.

A detailed defence statement was in due course served. The nature of the defence was expressly put on the basis “that he suffered a defect of reason caused by disease of the mind”: that is, insanity. Very full particulars – in essentials, although not entirely, reflecting what he was to say in evidence at trial – were then given. In essence, the defence statement stated that the appellant woke up on the morning of 30 June 2011 feeling “paranoid”; that he felt that he was being “watched” and “pursued by evil spirits”; that “good spirits” guided him to the coffee shop; and that when in the staff room he believed the police were agents of the evil spirits and so he did not co-operate with them and thought they would harm him if he came down. At the police station, when he woke he felt that he had “acquired supernatural powers”. He thought he could escape. He thought the police who came towards him (“rushed him”) were “evil” and he started defending himself. He recalled throwing punches. Even at hospital he believed he was still in the clutches of evil spirits. There is, it may be noted, no reference in the defence statement to self-defence. However at trial the appellant sought, and was permitted, to introduce this as an issue.

Inevitably, given the circumstances, psychiatric evidence had been obtained.

The first report was from Dr Adegoke dated 15 June 2012. He had interviewed the appellant on 17 May 2012 although had first interviewed the appellant on 28 July 2011 at his clinic shortly after his discharge from hospital. The appellant was described at that time as “very co-operative”. The appellant was recorded as saying at that time that he could not recall the events leading to his hospital admission but that he had increased his cannabis consumption in the prior two weeks. Subsequent reviews by Dr Adegoke had indicated no perceptual abnormalities. He was assessed as fit to stand trial. He had been under care for over a year and thus far had shown no evidence of a functional psychotic illness. The view was stated that the appellant at the time of the incident had “suffered from mental and behavioural disorders due to the use of cannibanoids”. It was said that there was “clear evidence” that his increased cannabis use precipitated a psychotic state. The appellant was recorded as now well aware of the detrimental effect of cannabis on his mental state.

By addendum report dated 27 June 2012 Dr Adegoke emphasised that he had not seen the appellant on the day of the incident and therefore could not give a personal opinion about his mental state at the time of the incident, but had outlined his mental state as described soon after the incident.

A psychiatric report was also submitted by Dr Walsh. This was dated 9 January 2012. It was based on an interview of the appellant on 3 January 2012, although she had in fact herself seen the appellant at hospital in July 2011 (when he had been under her care) and had also reviewed his notes. She described him as, in effect, very disturbed on admission on 2 July 2011 and “perplexed…he had no idea what had happened”. Thereafter he had improved rapidly with medication and had been discharged on 22 July 2011. Her conclusion was that the appellant had “presented [at the time of the incident] with a florid psychotic episode which took some months fully to resolve”.

There was an addendum report from Dr Walsh dated 30 March 2012, following a further interview and study of the witness statements. She recorded the appellant as in fact describing “an increasingly paranoid mental state”. From the available evidence, her opinion was that at the time of his committing the acts the appellant was “labouring under such a defect of reason from disease of the mind as not to know the nature and quality of the acts he was doing”.

Regrettably very late in the day – we gather only at court – Dr Adegoke and Dr Walsh then conferred. This resulted in a further report from Dr Adegoke submitted, after the trial had commenced, on 21 March 2013. This now expressed effective agreement with Dr Walsh. It was in terms stated that in Dr Adegoke’s opinion the appellant’s behaviour at the time of the alleged incidents were “as a result of psychotic disorder”. It was stated that he was labouring under such a defect of reason from a disease of the mind as not to know the nature and quality of the acts or, if he did know what he was doing, that he did not know what he was doing was wrong. It was further stated that the onset of the psychotic disorder was “precipitated” by use of skunk cannabis but “having reviewed the further evidence lately presented, it is now my opinion that [the appellant’s] actions at the time of the allegation [sic] were as a cause of [sic] his psychosis, and not intoxication”.

The psychiatrists’ various reports were in due course read as agreed evidence at trial. They were not the subject of any cross-examination. The Crown did not pursue any case that any delusions had been caused by voluntary consumption of drink or drugs.

When the appellant came to give evidence at the trial he described how he had woken up on 30 June 2011 feeling that there was an “evil energy” in his room. He had gone to Shepherd’s Bush in order to hide from the spirits. He described a series of paranoid or delusional encounters before ending up in the coffee shop changing room. Here, he said, he panicked as he thought he had been trapped by evil spirits. He thought the spirits had entered the police. They were trying to persuade him to come down. He threw the crockery at them to keep them away. When in the police station he drank from the lavatory cistern, gradually feeling that he was gaining supernatural powers. At one point he thought the evil spirits were in the cell with him. When he left the cell with Mr Giacalone, he thought it was time to escape: people then had come towards him with arms outstretched and with demon faces “so I started to hit them”. He said he did so to try and protect himself and get on with his “mission”. At all stages he had been trying to protect himself from the evil spirits. He largely maintained this in cross-examination. He accepted the CCTV did not show the officers in fact “rushing” him. He agreed he had been aggressive. He accepted that, while he had not in fact seen any demonic faces, at the time that was what in his mind he genuinely thought he had seen; and he genuinely thought they had evil faces. He also, according to Mr Akin-Olugbade, said in re-examination (although this is not recorded in the summing-up or recalled by Ms Macatonia) that he thought the evil spirits would “exterminate” him. When various discrepancies between his evidence and the defence statement were put to him in cross-examination he said that his account would be different each time he said it.

The recorder rejected a defence submission of no case to answer on the first affray count at the end of the prosecution case and rejected a defence submission of no case to answer on all counts at the end of all the evidence.

Prior to speeches, the recorder rightly discussed matters with counsel. A written Route to Verdicts document had been prepared by the recorder and was discussed with counsel. In its final form this read as follows so far as the affray counts were concerned:

“2.

Count 2 and 4 AFFRAY

NB: Each count must be considered separately

Question 1: Are you sure that the defendant at the Cappucino Café or at Hammersmith Police Station used or threatened unlawful violence towards other persons and his conduct was such as would cause a person of reasonable firmness present at the scene to fear for his safety. If so, proceed to Question 2. If not, the verdict is Not Guilty.

Question 2: When the defendant used or threatened unlawful violence towards other persons causing a person of reasonable firmness to fear for their safety, was he suffering from a disease of the mind, in other words a medical condition which impaired his mental functioning. If the answer is no, proceed to Question 4. If the answer is yes, proceed to Question 3.

Question 3: Was the defendant’s mental functioning so impaired that he did not know what he was doing or if he did, he did not realise that what he was doing was legally wrong. If you consider it more likely than not that the defendant’s mental functioning was impaired to this degree, your verdict must be Not Guilty by reason of insanity. If you consider it more likely than not that the defendant’s mental functioning was not impaired, proceed to Question 4.

Question 4: Have the prosecution made you sure that the defendant did not have a genuine belief that he needed to defend himself. If he may have held an honest belief that he needed to defend himself, proceed to Question 5. If you are sure that he did not hold an honest belief that he needed to defend himself, then the verdict is Guilty.

Question 5: Have the prosecution made you sure that the force the defendant used was not reasonable? If it may have been reasonable, then the verdict is Not Guilty. If it was not reasonable, then the verdict is Guilty.”

A precisely corresponding direction (adapted in the first two questions only as to the background facts) was given with regard to the s.20 count.

The summing-up at the outset dealt with legal matters before proceeding to a full summary of the evidence. At an early stage, the recorder referred to the two unchallenged psychiatric reports. He also gave proper directions as to the elements of the offences charged. He then turned to self-defence. Among other things he said this:

“So I turn to the defence of self-defence. The law is that if a man assaults another whilst acting in lawful self-defence against an attack or threatened attack he commits no criminal offence, and so if you find that the defendant was acting in self-defence in one or more of these counts, he is entitled to a verdict of not guilty. A man acts in lawful self-defence if it is necessary for him to defend himself and the amount of force used in self-defence is reasonable. When considering this aspect of the case, self-defence, you must have in mind three important matters. First, the defence only comes into play when you have come to the conclusion that the defendant was in fact defending himself and that would only be the case if he was being attacked or threatened with attack and it was, in your judgement, necessary for him to defend himself against that attach or threatened attack. If the injuries inflicted upon PC Tarrant or PC Thompson or any other person present were not caused when the defendant was defending himself but were caused, for example, when he himself was the aggressor and attacking, then he would not be acting in self-defence.”

He went on to direct the jury as to the second limb of self-defence, saying this:

“If you do decide that the defendant was in fact entitled to defend himself by using some force, you must bear in mind that the law provides that he is entitled to be found not guilty only if the amount of force used in self-defence was reasonable. If the amount of force used was unreasonable it would not be lawful. The force used in self-defence would be unreasonable if it was out of proportion to the nature of the attack or if it was in excess of what was really required. It is for you to decide whether this defendant was or may have been acting in lawful self-defence and your judgment about that must depend upon your view of the facts of the case. Every case of course is different…”

The recorder then went on to deal with insanity, describing it as a “very, very important element in the case”. He said in that context: “you first need to establish so that you are sure whether the defendant did indeed commit one or more offences [sic] in [the] counts….If you are not sure of that, then there is no need to consider the defence of insanity”. The recorder then gave directions as to the legal elements of the defence of insanity (reminding the jury that in this regard the burden was on the defence) and the elements of a special verdict; and then took the jury through the Route to Verdicts document, before reviewing in some detail the evidence, including the psychiatric evidence.

On no fewer than five occasions in the summing-up did the recorder remind the jury (and, indeed, emphasise to the jury) that the expert evidence of the two psychiatrists was to the effect that the appellant was insane at the time of the offences and was unchallenged by the prosecution.

In the result, as we have said, the jury convicted on all three counts.

A number of grounds of appeal were advanced by Mr Akin-Olugbade (who had also appeared at trial on behalf of the appellant). The single judge, following an oral hearing, granted leave on only one of these grounds: this was to the effect that the recorder’s direction on self-defence may have been inadequate and not sufficiently tailored to the case, where the appellant was, at the least, said to be delusional. The single judge also commented – and with force – that “in the light of the medical evidence this is a worrying case….”.

We can deal with the other grounds relatively shortly, although in some respects they are subsumed in the ground for which leave has been given. It is necessary to deal with them because Mr Akin-Olugbade has renewed his application on each of these grounds.

The first such ground is that the recorder should have accepted the submission of no case on the first count of affray. This was and is a hopeless submission. The argument was and is to the effect that the facts alleged were not such as would cause a person of reasonable firmness present at the scene to fear for his personal safety. One only has to consider the facts to see this is not sustainable. The person mentioned in s.3(1) of the Public Order Act 1986 is a hypothetical person of reasonable firmness: see s.3(4). The facts here clearly were such as would be capable of causing such a person fear (one of the police officers, as it happens, gave evidence that he was in fact fearful) and a jury could properly so conclude. It is also quite wrong to say – as Mr Akin-Olugbade sought to say – that the only offences properly chargeable in this context were offences against the person (namely against the police officers). This incident, however, plainly had a public order element to it. It is demonstrably different on the facts from the case of Leeson [2010] EWHC 994 (Admin) on which Mr Akin-Olugbade sought to rely.

The next ground is that the recorder should have “judicially directed” the jury to find the appellant insane. As so formulated, this is misconceived. It is not open to a judge to give a “judicial direction” that a jury find a defendant insane. By s.2(1) of the Trial of Lunatics Act 1883 it is a matter for the jury. As to the suggestion that the recorder should have withdrawn “the option of a guilty verdict” from the jury, we take that as another way of saying the recorder should have acceded to the submission of no case to answer at the close of the defence case. We think that, as matters stood, he was entitled to reject that submission: although we will have to come back to the effect of the unchallenged psychiatric evidence.

The final such ground is that the convictions are unsafe given the undisputed psychiatric evidence of insanity provided by the two psychiatrists from which there could be no rational or proper basis for the jury to depart. Since this to some extent reflects the issues on the ground on which leave has been granted, and in view of the problems highlighted in oral argument before us, we think it right to give leave on this ground.

On first reading the papers, the members of this court were rather in the dark as to just how the prosecution had been putting its case at trial: certainly the overall prosecution stance did not emerge from the summing-up itself. One can, however, see one possible logical basis for the outcome. That is that although the two psychiatric experts were agreed and their evidence was not challenged, still the issue of insanity, as of self-defence, was a matter for the jury, who were not necessarily bound by the psychiatric evidence; and, having heard the appellant give evidence, the jury may simply have rejected his evidence as to the primary facts and may have formed the view that he was not insane or was not suffering insane delusions causative of the affrays and violence alleged.

But, as Ms Macatonia (who appeared for the prosecution below) explained to us, that would not reflect the prosecution case at trial. Bearing in mind the wider duties on prosecutors, the Crown, we were told, positively – and understandably – accepted that the appellant was indeed, in the light of the lately agreed expert evidence, to be taken as insane, in the legal sense, at the time of these offences. It was not suggested that the appellant had in any way duped the two psychiatrists. Ms Macatonia frankly stated to us that the Crown had, prior to trial, taken the view that self-defence could be rebutted on the footing that any insane delusions from which the appellant may have been suffering were occasioned by his voluntary use of cannabis. But in the light of the ultimate reports that was not pursued by the Crown. In such circumstances, as Ms Macatonia told us, the Crown accepted during the trial that at the time of the incidents the appellant genuinely did, by reason of his insane delusions, believe that he was being confronted by evil spirits intent on harming him. The prosecution was thus prepared not only to concede before the jury the issue of insanity but also, as Ms Macatonia stated, to concede that the first limb of the conventional self-defence direction was satisfied so far as the appellant was concerned. Accordingly, as we understand it, the only case positively advanced by the prosecution before the jury was that the force used by the appellant was unreasonable.

This scenario gives rise to potential problems.

Insanity.

The common law defence of insanity conventionally takes its start from the famous M’Naghten case: (1843) 10 Cl & F 200. The well known answers given by the House of Lords to the first three questions there posed do not require further repetition here. But particularly in point for present purposes is the fourth question: “If a person, under an insane delusion as to existing facts, commits an offence in consequence thereof, is he thereby excused?” The answer, as given by Tindal LCJ at p.211, was as follows:

“To which question the answer must of course depend on the nature of the delusion: but, making the same assumption as we did before, namely, that he labours under such partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.”

Mr Akin-Olugbade at one stage submitted that under the first scenario postulated by Tindal LCJ – and it is, he submitted, in effect the scenario here – an accused is entitled to an (entire) acquittal as being “exempt from punishment”. We do not think so. It may in fact be queried in this case whether the appellant was suffering from a “partial delusion”. But in any event we think that “exempt from punishment” for these particular purposes is to be equated with exemption from conviction. It does not necessarily mean that an accused is also exempt from a special verdict of “Not Guilty by reason of insanity” (which, at the time, Tindal LCJ would not even have had in mind). It is true that a consequential disposal such as a hospital order or supervision order would count as a sentence. But a conclusion that the words of Tindal LCJ always mandate, on such a scenario, an entire acquittal would make scant practical sense in the context of such cases of insanity. We revert to this point later.

Self-defence

Nevertheless this flags up the crucial question arising.

The defence of self-defence at common law has, of course, two limbs. In summary, the first is whether the defendant genuinely believed that it was necessary to use force to defend himself. The second is whether the nature and degree of force used was reasonable in the circumstances. It is also elementary that once self-defence has been raised as an issue it is for the prosecution to disprove it to the criminal standard: this therefore is to be contrasted with a defence of insanity, where the burden is on the defendant.

Leaving aside cases of self-induced intoxication, it has long been established that the first limb of the defence involves assessment of subjective considerations. The state of mind and belief of the defendant is in issue: objective considerations of reasonableness in this context are only relevant as potentially casting light on what the state of mind of the defendant in truth really was. It thus follows that even if the belief is based upon a mistake or a delusion still, if genuinely held, it can operate to satisfy the first limb of the defence. The second limb, however, unquestionably incorporates (by its requirement of reasonableness) objective considerations. There was considerable debate over the decades as to whether the test for the second limb was solely objective. But latterly it had been clearly decided that is not solely objective: see, for example, Palmer v The Queen [1971] AC 814. It is, for example, therefore conventional to direct juries, on the issue of the reasonableness of the force used, not only as to the circumstances in which the defendant found himself in responding by the use of force (for example a “heat of the moment” situation) but also, in an appropriate case, as to the circumstances in which the defendant genuinely, albeit mistakenly, believed them to be.

Thus in Oatridge (1994) 92 CAR 367 the defendant stabbed the victim genuinely, but mistakenly, believing the victim had been attempting to kill her. It was held that the jury should have been directed to consider whether the degree of force used in response was commensurate with the degree of risk which the defendant genuinely believed to be created by the attack under which she genuinely believed herself to be. Accordingly, the fact that the defendant may have mistaken the victim’s intentions towards her was no bar to the requirement for such a direction: on the contrary, it was a reason for it. Of course whether the response is or may be in fact commensurate with the (mistakenly) perceived risk still remains for assessment by the jury: see, by way of example, the decision in Yaman [2012] EWCA Crim 1075.

This subjective element as to mistake of fact is now confirmed by the provisions of s.76 of the 2008 Act. That reads (in its form as applicable at trial) as follows:

“76 Reasonable force for purposes of self-defence etc.

(1)

This section applies where in proceedings for an offence—

(a)

an issue arises as to whether a person charged with the offence (“D”) is entitled to rely on a defence within subsection (2), and

(b)

the question arises whether the degree of force used by D against a person (“V”) was reasonable in the circumstances.

(2)

The defences are—

(a)

the common law defence of self-defence; and

(b)

the defences provided by section 3(1) of the Criminal Law Act 1967 (c. 58) or section 3(1) of the Criminal Law Act (Northern Ireland) 1967 (c. 18 (N.I.)) (use of force in prevention of crime or making arrest).

(3)

The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be, and subsections (4) to (8) also apply in connection with deciding that question.

(4)

If D claims to have held a particular belief as regards the existence of any circumstances—

(a)

the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but

(b)

if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not—

(i)

it was mistaken, or

(ii)

(if it was mistaken) the mistake was a reasonable one to have made.

(5)

But subsection (4)(b) does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced.

(6)

The degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances.

(7)

In deciding the question mentioned in subsection (3) the following considerations are to be taken into account (so far as relevant in the circumstances of the case)—

(a)

that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and

(b)

that evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.

(8)

Subsection (7) is not to be read as preventing other matters from being taken into account where they are relevant to deciding the question mentioned in subsection (3).

(9)

This section is intended to clarify the operation of the existing defences mentioned in subsection (2).

(10)

In this section—

(a)

“legitimate purpose” means—

(i)

the purpose of self-defence under the common law, or

(ii)

the prevention of crime or effecting or assisting in the lawful arrest of persons mentioned in the provisions referred to in subsection (2)(b);

(b)

references to self-defence include acting in defence of another person; and

(c)

references to the degree of force used are to the type and amount of force used.”

This provision was, it is to be apprehended, introduced in the aftermath of cases such as Martin (Anthony Edward) [2002] 1 CAR 27. Quite what the provision has actually achieved has been the subject of some debate, a debate which does not need prolonging here. But three points may in particular here be noted:

It seems to us best not to seek to draw any comparisons with defences such as, for example, loss of control or duress where questions of honest, but mistaken, belief can also arise. As rightly noted in Smith & Hogan’s Criminal Law 13^th ed. at p.383 there is, on the authorities, no clear coherence of approach in these areas. Indeed the approach indicated in, for example, the highly complex provisions of ss.54-56 of the Coroners and Justice Act 2009 relating to loss of control would seem to indicate no particular parliamentary intention that a corresponding approach is designed to be adopted.

From this background, and from the provisions of s.76(3) in particular, one can now appreciate the nature of the main argument advanced on behalf of the appellant. In essence – although rather masked in the very long and elaborate written grounds – what it comes to is this. Here not only was the agreed psychiatric evidence to the effect that the appellant acted as he did thinking that he had to defend himself by reason of his insane delusions but also it was positively accepted by the Crown at trial (as Ms Macatonia confirmed to us) that that was so and that he was indeed suffering from an insane delusion that evil spirits were intent on harming him. That was thus the basis on which the trial proceeded. As we have said, Ms Macatonia also confirmed that the Crown did not dispute that in the circumstances the first limb of self-defence had been made out (or, rather, could not be disproved by the prosecution). Mr Akin-Olugbade thus submitted that in the circumstances as the appellant believed them to be the prosecution could not, on the evidence prove that the degree of force used was unreasonable or disproportionate in those circumstances. That his belief as to those circumstances derived from his insane delusion, it was submitted, was immaterial. The point was that that was his genuine, if insanely deluded, belief.

If this is right, the potential implications for other cases are most disconcerting. It could mean that the more insanely deluded a person may be in using violence in purported self-defence the more likely that an entire acquittal may result. It could mean that such an individual who for his own benefit and protection may require hospital treatment or supervision gets none. It could mean that the public is exposed to possible further violence from an individual with a propensity for suffering insane delusions, without any intervening preventative remedies being available to the courts in the form of hospital or supervision orders. Thus, whatever the purist force in the argument, there are strong policy objections to the approach advocated on behalf of the appellant.

In our view it is not right.

The position remains, as we think plain from the provisions of s.76 of the 2008 Act, that the second limb of self-defence does include an objective element by reference to reasonableness, even if there may also be a subjective element: see in particular s.76(6) and see also the decision in R v Keane & McGrath [2011] EWCA Crim 2514. An insane person cannot set the standards of reasonableness as to the degree of force used by reference to his own insanity. In truth it makes as little sense to talk of the reasonable lunatic as it did, in the context of cases on provocation, to talk of the reasonable glue-sniffer.

The main thrust of Mr Akin-Olugbade’s arguments was based on the proposition first that the appellant was indeed suffering insane delusions causative of his behaviour (notwithstanding the jury’s verdict): and second that, that being so, it must be the case – or at all events it must be the case that the prosecution could not prove otherwise – that the force he used was reasonable in those circumstances as he believed them to be. But that simply does not necessarily follow. As s.76(6) makes clear, the position still requires objective assessment by reference to those circumstances. As Ms Macatonia told us, at trial the Crown disputed that, even within the delusions which it was accepted the appellant held, it was in fact reasonable to defend himself by the degree of force he used. He was cross-examined at length both as to what his deluded beliefs actually were at the time and as to his account of self-defence. Thus, for example, the appellant did not say that, in the coffee shop, the police were, in his mind, actually attacking or threatening immediately to attack him so as to warrant his violent response. As to the incident in the custody suite, whilst it may be that the police had (to him) demonic faces and he was trying to protect himself from them, it was very much in issue for example whether they either in fact or in his own belief “rushed” him – and he apparently conceded in any event (and as confirmed by the CCTV) that any “rushing” was after he had himself first struck Sergeant Watts. Overall there was no clear cut and irrefutable evidence that the danger actually perceived by him in his deluded state justified his actual responses. It is not necessary here to review all the evidence on these incidents. It was for the jury to assess the evidence, including the appellant’s own evidence, on this. Sufficient to say that, on the approach actually adopted by the Crown at trial, the evidence, taken as a whole, generated issues on which the jury would have been in any event entitled to form its own view on reasonableness. That of itself would provide a short answer to Mr Akin-Olugbade’s argument on this head.

Mr Akin-Olugbade did object that the recorder had not in his Route to Verdicts document, or elsewhere in the summing-up, sufficiently drawn attention to the need to consider the circumstances as the appellant believed them to be. But having regard to the course of the trial and taking the summing-up as a whole and the emphasis given in the Route to Verdicts document as to the genuine belief of the appellant we do not think that this point of itself would render the convictions unsafe.

There are, in any event (and as alluded to above) wider considerations here to be borne in mind. Indeed, it is the case that it has for some time been settled by authority – prior to the 2008 Act – that in self-defence cases the psychiatric characteristics of an accused cannot be brought into account on the issue of whether the degree of force used was reasonable in the circumstances.

The first such authority is the case of Martin itself. In that case, fresh medical evidence obtained after trial (and which was permitted to be adduced) indicated that the accused suffered from a long-standing paranoid personality disorder and also from depression. This was accepted to constitute a mental abnormality. Such matters further, it was said, caused the accused to perceive a much greater danger to his safety than would an average person: thereby contributing to his shooting the two burglars of his farmhouse. In such circumstances, the conviction for murder was quashed by a constitution of this court and a conviction for manslaughter, on the ground of diminished responsibility, substituted.

But it had further been argued on appeal that the new evidence also was relevant to the issue of self-defence (run at trial). The court would have none of it. It accepted that such evidence could – as the law then stood – bear on any issue of loss of control (provocation). But it could not be so relied on for the purposes of self-defence. The court was plainly concerned in general terms that “too generous an approach to what is reasonable” could result in an “exorbitant defence” (para.66). Having so indicated, Lord Woolf LCJ, giving the judgment of the court, said this at paragraph 67:

“67.

We would accept that the jury are entitled to take into account in relation to self-defence the physical characteristics of the defendant. However, we would not agree that it is appropriate, except in exceptional circumstances which would make the evidence especially probative, in deciding whether excessive force has been used to take into account whether the defendant is suffering from some psychiatric condition.”

(It is also to be noted that, in the following paragraph, Lord Woolf emphasised the importance of the accused’s own evidence as to his actual state of belief at the time as compared to any psychiatric attempt to reconstruct such belief.)

As a statement of general approach, that is against Mr Akin-Olugbade’s present argument, as he accepted. But he sought to say that here there were “exceptional circumstances”. Quite what Lord Woolf had in mind in his reference to “exceptional circumstances” is unexplained. But at all events if Martin was not considered an exceptional case then we do not see how or why the present case should be.

In this context, Ms Macatonia referred us in argument to the decision of another constitution of this court in the case of Canns [2005] EWCA Crim 2264.

In that case the appellant, while in a secure hospital ward, had killed a male nurse. He was undoubtedly mentally disturbed at the time, suffering chronic paranoid schizophrenia. He was convicted of manslaughter by reason of diminished responsibility. His defence at trial had been self-defence, he believing – genuinely but, as was accepted on appeal, by insane delusion – that the nurse was attacking him in order to rape him. It was submitted on an application for permission to appeal on his behalf – rather as it was submitted to us on this appeal – that it would be “unjust and unrealistic” to deprive such a defendant of a defence “based on the reality, to him, of what was going on” (para 18). The court rejected that and refused leave to appeal. It also expressly stated, with regard to the reliance on the case of Martin and on the asserted existence of “exceptional circumstances” that each member of the court “has found it impossible to identify the sort of exceptional circumstances in which it would be appropriate to take a psychiatric condition from which a defendant is suffering into account, when addressing the question of whether excessive force is used”. (It may be noted that the members of the court were Rose LJ, Forbes J and Calvert-Smith J with, collectively, enormous experience of criminal law and procedure.) The court went on in other respects – aside from the issue of exceptional circumstances – to endorse the general statements made by Lord Woolf LCJ in paragraph 67 of Martin.

Mr Akin-Olugbade nevertheless then sought to maintain that these authorities had been overtaken by the provisions of s.76 of the 2008 Act. He said, in particular, that the language of s.76(3) and (4), read together with s.76(8), was wide. We agree that the language of those subsections can be read widely. But it is to be borne in mind that s.76(9) states that the section is, among other things, to “clarify” the common law defence. Mr Akin-Olugbade’s interpretation of the statutory provisions would amount in this respect not to a clarification of but to a change from the common law. Moreover, for the policy reasons outlined above such a conclusion as is argued for would be capable in other cases of giving rise to real difficulties and to real public safety concerns. It could also potentially operate so as virtually to negate in some situations the objective element connoted by the word “reasonable” as applicable to the second limb of self-defence.

We thus reject the appellant’s submissions on the issue of self-defence.

There is one other point we perhaps should mention. It will be recalled that in his Route to Verdicts document the recorder had directed the jury to approach matters sequentially: to consider the issue of insanity first and self-defence second. That approach, prima facie, has great attractions, given that the whole defence case was predicated on the appellant suffering from insane delusions. On the other hand, however, at places in his summing-up the recorder seemed to have reversed the order of that approach and to have invited the jury first to consider self-defence and then insanity: and that approach would reflect the case of the appellant who, after all, was at trial aiming for an entire acquittal in preference to a special verdict (let alone a guilty verdict).

The recorder was not, in this respect, referred to (nor was there cited to us) the decision of the House of Lords in Antoine [2001] 1AC 341. Antoine was a case involving issues of fitness to plead and diminished responsibility: issues not corresponding to those in the present case. But it was also indicated that for the purposes of s.4A(2) of the Criminal Procedure (Insanity) Act 1964 consideration by a jury of whether a defendant did “the act” required the jury, where there was objective evidence whereby an issue of self-defence had been raised, to consider whether the prosecution had disproved that defence: see the speech of Lord Hutton at p.376F-377B. (These remarks of Lord Hutton were obiter but fully considered and his speech was agreed by the other four members of the House). It might be said in the present case that there was in truth no objective evidence of self-defence here; but it is to be recalled that the trial had proceeded on the footing that an issue of self-defence had indeed properly been raised. One can therefore see an argument, by reference to s.2(1) of the Trial of Lunatics Act 1883, that a like approach should be adopted in considering under that statute whether a defendant “did the act charged”. Thus the argument would then be that the jury were, at all events by the Route to Verdicts document, asked to approach matters in the wrong order and, indeed, should not have been directed to approach such matters sequentially. But here, in the result, the jury found against the appellant both on self-defence and on insanity. Accordingly, in the circumstances of this case, and in view of our ultimate disposition, it is not necessary to express any final view on that: and, given that we heard no full argument on the point, we think it better not to express any view. Nor do we think it appropriate to express any further views on other difficulties that potentially can arise in assessing the interrelationship between mens rea, subjective elements in various defences (including self-defence) and the defence of insanity. Some of these are alluded to in the Discussion Paper on Criminal Liability: Insanity and Automatism issued by the Law Commission in July 2013. It remains to be seen whether, in due course, a statutory solution will result.

We therefore have rejected the appellant’s principal grounds.

It will have been gathered that Mr Akin-Olugbade’s arguments before us were predicated on the basis that – notwithstanding the jury’s verdict – at the time the appellant was indeed insane. All the same the judge, whilst repeatedly reminding the jury of the unchallenged psychiatric evidence to this effect, had, as is conventional, reminded the jury in the summing-up that it was ultimately the jury’s decision and that they were not obliged to accept even the unchallenged evidence of the experts.

Whilst it can indeed be said that this was a jury matter, we have to say that we nevertheless have the greatest unease at the verdicts reached. Ms Macatonia frankly acknowledged before us that they came as the greatest surprise to her (as they did to Mr Akin-Olugbade). The recorder, within the proper confines of judicial discretion, had himself given the jury repeated “steers” on the unchallenged psychiatric evidence as to insanity. The recorder at one stage, it is true, had suggested in his summing-up that “although the doctors have concentrated on the legal insanity point, you may want to take into account all sorts of other matters, I know not what, but this evidence is directed at the one point of legal insanity.” Mr Akin-Olugbade forcefully objected that there had never been identified “all sorts of other matters” on which reliance could properly be so placed for this particular purpose. He also pointed out that the “lay” evidence of those involved at the time – such as Mr Giacalone and various of the police officers – also was that the appellant seemed to them to be mentally disturbed. Yet further there is the fact that the Crown, in the light of the agreed psychiatric evidence, had itself conducted the trial accepting that the appellant had been suffering from insane delusions at the time of the incident.

Given all this, and given the way the trial was conducted, this court cannot see a safe or rational basis for departing from the unchallenged psychiatric evidence or the Crown’s acceptance of it. We think that this court should interfere. This court has – as both counsel agreed – power to substitute special verdicts under s.6 of the Criminal Appeal Act 1968. This court has of course considered for itself the written reports of Dr Adegoke and Dr Walsh in this regard. We are of the opinion that the proper verdicts on each of the three counts would have been one of not guilty by reason of insanity. Such verdicts are to be substituted accordingly.

That then leaves the question of the order now to be made. The appellant has been in prison for some time now. The medical evidence indicates that, under appropriate medication which, indeed, has for some time now not been required to be continued, he has made an entire recovery. In such circumstances, a hospital order or supervision order now would serve no purpose. In all these circumstances this court proposes to order an absolute discharge.