Wells & Ors v R

In each appeal and application before the court, the defendant has been found unfit to plead: that is to say, based on medical evidence, the court has found that one or more of the following criteria is satisfied namely that he or she does not have the ability to plead to the indictment, to understand the course of the proceedings, to instruct a lawyer, to challenge a juror, to understand the evidence: see R v Pritchard (1836) 7 C & P 303, R v Davies (1853) 3 Car & Kir 328 and R v Robertson [1968] 3 All ER 557. The mechanism for deciding how then to deal with the consequences of such a finding is set out in the Criminal Procedure (Insanity) Act 1964 as substituted by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 and amended by the Domestic Violence, Crime and Victims Act 2004 (to which we shall refer as “the Act”) which itself generates difficult issues of balance.

That balance is provided by s. 4A of the Act which provides:

In the event that a defendant is found to have done the act or made the omission, there is no determination of a criminal charge and no question of conviction or punishment: see the analysis in R v M [2002] 1 WLR 824. Only the act or omission has been proved and there has been no investigation or attempt (even less, a successful attempt) to prove all the constituent ingredients of the offence charged. The powers of the court are therefore not those which follow a conviction but are restricted to measures designed to treat, rehabilitate and support while, in the most serious cases, providing protection for the public.

Thus, the court is confined to ordering an absolute discharge, a supervision order or, if appropriately certified by medical practitioners, making a hospital order (with or without a restriction order): see s 5(2) of the Act. A restriction order would not be available as a civil remedy under the Mental Health Act 1983 so that, in the case of a hospital order with a restriction order which is still in place, the Secretary of State, if satisfied after consultation with the responsible clinician that the person can properly be tried (that is to say, is no longer unfit to plead), may remit the person for trial whereupon the hospital order (and the restriction order) shall cease to have effect: see s 5A(5) of the Act.

The balance which the legislation seeks to strike, therefore, is to protect the rights and interests of those accused of crime to ensure that their liberty is not adversely affected without the appropriate safeguards of a court having established beyond reasonable doubt that the accused did the act or made the omission charged. On the other hand, the public interest is also protected from those who are proved to have committed the most serious acts but who cannot be tried on the grounds that they are unfit to take part in a trial of the allegations made against them.

The difficulty arises in what is required to prove that an accused “did the act or made the omission charged”. That issue was addressed by the House of Lords in R v Antoine[2000] 2 Cr App R 94 which was specifically concerned with whether the defence of diminished responsibility was open to a defendant found unfit to plead by reason of mental disability. A further issue arose, posed by Lord Hutton (with whom the other members of the House agreed) in these terms (at 111B):

He went on to recognise that such defences almost invariably involve some consideration of the mental state of the defendant, his example being in relation to self defence “what the defendant honesty and instinctively thought was necessary” (see Palmer v R [1971] AC 814 at 832 per Lord Morris of Borth-y-Gest) whereas on a determination under s. 4A(2), the defendant’s state of mind was not to be considered. He identified the way forward in these terms (at 111E):

This formulation generates a number of problems. First, as Lord Hutton recognised (and is reflected in Attorney General’s Reference (No 3 of 1998) [1999] 2 Cr App R 214), the actus reus of an offence cannot always be separated from all consideration of the mens rea. Second, as Mr Patrick Gibbs Q.C. (who appeared in the appeal of Wells) has argued, it raises in stark form what is meant by the words “objective evidence”. Third, springing from the answer to that question is a further issue as to the consequence of the presence of such objective evidence on the admissibility of evidence emanating directly from the defendant who may, at the time of the incident, have been suffering from serious mental illness and, by definition, at the time of the trial, is under such a disability as to be unfit to take part in the trial.

Before seeking to address these matters, it is worth emphasising that a hearing pursuant to s. 4A of the Act is not a criminal trial to determine the guilt or otherwise of an accused person. It is the consequence of an inability to conduct a trial with that aim in mind because of the mental incapacity of the defendant; it recognises that the part which can be played by the defendant is necessarily limited because, for whatever reason connected with that incapacity, by definition, he or she cannot participate in the trial. Further, if the incapacity was in place at the time of the incident, what was said then or what the defendant would now say cannot be evaluated by a jury in the normal way. The exercise, therefore, is limited to ensuring that the interference with the liberty of the defendant consequent upon whatever order might be made following an adverse finding can be justified by reference to what can be proved about what he or she did, even if intention might have been clouded by delusion or other incapacity.

That there is such a bespoke procedure is critical and can be demonstrated quite simply. If, on the one hand, it was necessary for the Crown to prove all the ingredients of murder, a paranoid and delusional schizophrenic would be able legitimately to plead self defence to murder on the basis that he or she truly believed that he or her was being attacked by an alien even though his or her interaction with his or her victim was, in objective reality, entirely benign. Subject to intervention under the Mental Health Act 1983, he would then be free to do so again. In Attorney General’s Reference (No 3 of 1998), Judge LJ (as he then was) provided a different graphic illustration of the difficulty (at p 223D):

Having provided that example, however, Judge LJ also went on to explain why the requirement to prove that he or she “did the act” was so important:

It is not difficult to see that these examples qualify the act. If committed in self defence, an assault is not unlawful; if an accident, the act is not deliberate; if a mistake, the quality of the act has been affected by the circumstances. This delineation is clear but does lead into the first question, namely, the extent to which it is always possible or appropriate to separate actus reus from mens rea.Other offences create rather more difficulty and underline that a proper consideration of the ‘acts’ required to prove an offence require an offence specific consideration of its ingredients. As the authorities make clear, there is no bright line and the actus reus may, indeed, involve mental elements.

Two examples suffice to demonstrate this proposition. In R (Young) v Central Criminal Court [2002] 2 Cr App R 12 (page 178), the Divisional Court was concerned with a s. 4A(2) hearing in respect of the offence of dishonestly concealing material facts contrary to s. 47(1) of the Financial Services Act 1986. It concluded that, as a matter of statutory interpretation, the offence required consideration of intention as one of the facts represented to those said to be victims. Putting it another way, it was put (at para 40):

The second example is nearer to the facts of some of the present applications. R v B(M) [2012] 2 Cr App R 15 at page 164 concerned the offence of voyeurism in a s. 4A(2) hearing following a determination of unfitness to plead by a defendant who was alleged to have looked in the gap between two cubicles at a swimming pool while 6 year old boys were changing into swimming trunks. The judge ruled that it was sufficient that the defendant had observed the relevant boy doing a private act and that there was no need either to prove that the observing was for the purpose of sexual gratification or that it was necessarily done knowing that the complainant did not consent to being observed for sexual gratification. Rejecting the proposition that there was no need to establish the purpose of the deliberate observation, Atkins LJ explained (at para 64):

The second question (as posed by Mr Gibbs) concerns the nature of objective evidence, as described by Lord Hutton in Antoine. His examples were of independent eye witness evidence but it would certainly include a wide range of other evidence. CCTV, cell site, scene of crime or expert forensic evidence are all available to assist a defendant. Thus, evidence of a fight, with similar injuries on both sides, or evidence of the type suggested by Judge LJ in Attorney General’s Reference (No 3 of 1998) would all be relevant and admissible in a s. 4A(2) hearing. What would not fall within the category of objective evidence are the assertions of a defendant who, at the time of speaking, is proved to be suffering from a mental disorder of a type that undermines his or her reliability and which itself has precipitated the finding of unfitness to plead. These assertions need not themselves be obviously delusional: to repeat the example provided by Judge LJ, it is not necessary that the defendant assert that he or she is a deity being attacked by the devil. The exclusion of evidence outside this category may put the defendant at a disadvantage; however this is balanced by the fact that these are not criminal proceedings and the disposals are accordingly limited.

The concern about the limited nature of objective facts has been identified by the Law Commission who, on 27 October 2010, published a consultation on Unfitness to Plead, which contained provisional proposals for comprehensive reform of the law in England and Wales. Having taken into account responses received during the course of the consultation period, on 2 May 2014, the Commission published an issues paper, which contained the following observations:

Objective facts will, of course, include the background to the incident, the antecedents of the complainants and the circumstances of the fight as evidenced, for example, by the injuries. In the example given, there will also be the evidence of the co-defendant. That is not to say that other protection could not be devised provided that the result does not mean that the Crown have to prove all the ingredients of the offence, rebutting the subjective assertions of a defendant who, at the time of his interview, suffered such psychiatric illness as led to his or her being unfit to plead.

That is not to say that the same approach should be taken to an interview of a defendant who, at the time of interview, was not suffering from such a psychiatric illness. It is not difficult to visualise a defendant of full capacity who is involved in an incident and then provides a full account to the police but thereafter suffers an injury which renders him or her unfit to plead. It is not uncommon for such interviews to be admitted into evidence whatever the strict operation of the principles in Antoine might otherwise suggest.

Thus, in R v Jagnieszko [2008] EWCA Crim 3065, the issue left to the jury in a s. 4A(2) hearing was self defence in the context of two allegations of causing grievous bodily harm with intent. There was objective evidence from a witness and the police interview of the defendant, then of sound mind, was admitted without objection (although in this court, the Crown queried whether this qualified as objective evidence). The issue was whether the refusal also to admit an unsigned proof rendered the verdict unsafe. It was held that it did not: the interview contained some considerable detail of the matters going to self defence, as did the cross examination of prosecution witnesses. In R v B(M) to which we refer above, the defendant was unfit to plead by reason of an autistic spectrum disorder and a learning disability such that he did not have sufficient cognitive capacity to understand the trial process. He was interviewed in connection with the allegation of voyeurism and said that he was lying on his back in the adjoining cubicle because his back hurt and it is not suggested that this was not deployed before the jury: see para. 16.

In our judgment, the balance struck by these examples is appropriate. Where a defendant’s disability impacts on his/her ability to take part in a trial but he/she is not otherwise affected by a psychiatric condition such as renders what is said in interview unreliable (whether or not the delusional traits are apparent on the face of the interview), there is no reason why the jury should not hear them albeit with an appropriate warning. When considering the extent to which evidence of the interview should be admitted, it remains relevant to consider all the circumstances.

With these preliminary observations, we turn to consider four of the individual cases that we have considered; three others (each of which involves a slightly different and unrelated point) are the subject of separate judgments. In each case, it falls to the court to appoint a person to act on behalf of the applicant or appellant: see s. 4A(2)(b) of the Act and R v Norman [2009] 1 Cr App R 13. In each case, we appoint counsel who appeared before the Crown Court and who, with implied authority and in accordance with the decision in Antoine,drafted grounds of appeal . We also acknowledge the assistance of Mr William Mousley QC, who prosecuted in the case of Marc Wells and has been instructed by the CPS to assist in all the applications and appeals.

On 12 March 2014, in the Crown Court at Winchester before His Honour Judge Boney QC, Marc Martin Wells was found to be unfit to plead to an indictment containing an allegation of murder. On 18 March 2014, in the same court before the Recorder of Winchester, His Honour Judge Cutler C.B.E., a hearing pursuant to the provisions of s.4A of the Act was conducted: the jury found that Mr Wells had committed the act alleged. On 21 March 2014, he was made subject to a hospital order with a restriction order unlimited in time.The Registrar has referred his application for leave to appeal against the finding to the full court.

The facts underlying the finding are as follows. In about April 2013, through a mutual friend, Gemma Glew, Mr Wells met the deceased, Keith Bevis. Both men were heavy drinkers and drank together; in the week before his death, the deceased had stayed in Wells’ flat from time to time. At the time, Wells was taking substantial medication. He had a butterfly knife that he kept in a cabinet and, at some time in that week, had shown it to Glew (who for a week had also been staying at the flat); he told her about a man he had beaten up.

At about 4.55 p.m. on 11 May 2013, a 999 call was made in which the male caller (Mr Wells) said “I’ve a dead person in my front room…he’s took about twenty or thirty stabs…to his neck chest and back.” In response to further questions he said “he started me with a weapon. I took the weapon off him and defended myself…he kept coming back and back with the weapon”. He said that the knife belonged to him. When police officers arrived at Wells’ address shortly later, they found him with blood on his clothing and a cut to his wrist. He said “I’ve been honest, it was self-defence.” The deceasedwas lying on the floor bare-chested, and a knife was found nearby. There was blood all over him and his clothing. Attempts were made to resuscitate him but he was pronounced dead at the scene.

Mr Wells was arrested and cautioned. The transcript from a body-worn camera indicates that he repeatedly maintained that the deceased had attacked him with the knife, which he took and used to defend himself. He identified the knife that he had taken from the deceased and said that the deceased had been high on drugs and kept saying “do you want to go for me?” He showed police his injuries, which consisted of a 1 inch laceration on his right wrist for which hospital treatment was recommended and a small cut to his left little finger. He told them that he was schizophrenic; his condition was not well controlled and was having a very bad spell. He had not previously been violent as a result of his illness and he was very sorry for what had happened. He was coherent but not everything he said made sense.

Medical assessment at the time indicated that Mr Wells had an established diagnosis of treatment-resistant paranoid schizophrenia with co-morbid substance misuse and historical diagnoses of bi-polar disorder, depression, drug-induced psychosis and personality disorder. He was diagnosed with a paranoid psychotic illness, likely paranoid schizophrenia. He presented as psychotic and depressed. It was unclear whether his mental disorder led to or was a contributory factor in the index offence. He had recently been discharged from hospital and was being treated with anti-psychotic and sedative medication. It was the opinion of a Registrar in Forensic Psychiatry, that Wells should be detained in hospital under the Mental Health Act.

Bloodstain pattern and DNA analysis was undertaken at the scene. The analyst concluded that Mr Wells had been in the area of the sofa, possibly seated after he was injured; the deceased was likely to have been assaulted near the coffee table; the deceased had dripped blood onto the wall beneath the mirror and his blood had been projected onto the mirror and adjacent wall; the deceased had been struck or expelled blood from his mouth/nose whilst in a corner near the mirror; and he appeared to have lain on the rug near the sofa.

Analysis of the deceased’s blood and urine samples revealed that he was nearly 4 times over the legal driving limit and there was a low concentration of the bi-products of cannabis. Analysis of samples taken from Mr Wells both 12 and 25 hours after the incident revealed an absence or low concentration of alcohol. Analysis of broken mirror glass from the scene provided strong support that Wells had been in close proximity to or contact with the wall mirror as the glass in it was breaking and/or was in contact with the glass after it was broken.

At trial, the majority of evidence was agreed. The pathologist, Dr Delaney, said that the deceased had sustained 38 stab wounds. There were some very serious injuries. The tip of the knife had broken off and was embedded in the deceased’s skull. The cause of death was stab wounds to the neck and chest inflicted by a butterfly knife recovered from the scene. Death would have resulted quite rapidly through blood loss. There could have been a struggle but not for long. He said that both the deceased and Mr Wells had injuries to their hands which could be consistent with self-defence or trying to grab a knife from someone else. He was unable to say in which order the 38 stab wounds occurred, the ones on the back of the deceased appeared to have been inflicted when he was not moving and was perhaps on the ground with his back upwards. He had been given an account from Mr Wells of what had happened and agreed that some of the injuries could be explained by that account, but many could not. Detective Sergeant Hope confirmed that Mr Wells was 183cm tall whereas the deceased was 160cm tall and weighed 8 stone 3 pounds.

Mr Wells’ father, Raymond Wells said he had received a phone call from his son who said: “I’ve done it this time, I’ve actually stabbed someone 26 times and he is dead on the floor in front of me, or dying, I want you to come down.” He mentioned a butterfly knife at some point and sounded panicked and distressed. Mr Wells senior wasn’t sure if what he was being told was true. His son had been ill for the last 24 years and the family had tried to support him but he remained ill and in need of treatment. The prosecution case was that Mr Wells had unlawfully caused the death of Keith Bevis.

It was submitted on behalf of Mr Wells that the issue of self-defence should have been considered by the jury when determining whether the defendant did the act under s.4A. It was argued that there was objective evidence within the evidence relied upon by the prosecution which was capable of raising the issue of self-defence, including comments made by Wells to police at the scene, in the police station and in his interview; Wells’ injuries and the damage to and the blood distribution within the flat. As a result, the submission was made that this material together with bad character evidence in relation to the deceased should be considered by the jury. Having considered Antoine (supra), R v Jagnieszko[2008] EWCA Crim 3065, and R v B (M) [2012] EWCA Crim 770, the judge ruled that the only areas of evidence capable of being objective were Wells’ injuries, damage to the flat and the blood distribution. The evidence as to these issues was not of sufficient cogency as to raise the issue of self-defence. The jury were therefore directed that they could have no regard to this issue.

A hearsay application was made by Mr Gibbs concerning a statement made by Paul Allard to police regarding the condition and behaviour of the deceased in particular on 11 May 2013 together with some background material. The witness had since died. It was submitted by Mr Gibbs that the evidence was admissible and capable of supporting the issue of self-defence. Following his earlier ruling on the issue of self defence, the judge ruled that the evidence of the witness was irrelevant for the jury’s consideration.

This application is grounded in the submission that the judge was wrong to remove the issue of self defence from the jury. It is argued that the jury was misdirected to disregard the evidence of the Mr Wells’ persistent accounts of having acted in self-defence, and evidence which would have been admissible and relevant to self-defence was wrongly excluded. While it was true that Mr Wells was mentally disordered at the time of the killing, he was not so disordered as to make it impossible to assess his account that he had acted in self-defence. The Crown submits that there was no evidence of self-defence that was “objective” in the sense of Antoine. The assertion of self-defence was by a defendant who was suffering paranoid schizophrenia at the time of the killing and was assessed as being seriously ill shortly after his arrest.

That self defence was actually raised (as opposed to being an arguable defence which he could have raised) is said by Mr Gibbs to be based on Mr Well’s repeated assertions to that effect and the consistency of that assertion with the physical evidence. That physical evidence was the injuries suffered by Mr Wells, the damage to the flat (especially to the mirror), almost all the blood distribution and the location and nature of most of the injuries inflicted on the deceased.

For the Crown, Mr Mousley submits that the judge was correct in his approach for the reasons that he gave. Thus, the fact that Mr Wells suffered a 1 inch laceration on his right wrist and a small cut to his left little finger was (as Mr Gibbs accepted) equally consistent with the knife slipping in his hand as he struck at the deceased and it is not suggested that any of the other physical evidence was inconsistent with an absence of self defence.

In our judgment, of particular importance was the nature and extent of the injuries inflicted on the deceased as contrasted with the truly trivial injuries sustained by Mr Wells: we repeat that there were some 38 stab wounds (including to the neck, chest and back) caused by Mr Wells’ butterfly knife, the tip of which was embedded in the deceased’s skull. The injuries to the back appeared to have been inflicted when the deceased was not moving. Absent the assertions of self defence, there was no basis on which it would have been open to leave self defence; even if there had been, on the face of it, excess of self defence appears unanswerable.

What of the interviews? Mr Gibbs recognises that they could not be objective evidence on their own but argues that Mr Wells was not so disordered as to make it impossible to tell whether he was claiming, from first to last, that he acted in self defence. In what he said, it may be that to a lay person, he was not exhibiting delusional thinking but the medical evidence was all one way albeit expressed in slightly different language. Thus, Dr Sandford observed:

Dr Ormsby considered it “highly likely that at the time of the offence [Mr Wells] would have had an abnormal mental state … of thought disorder, disorganised behaviour, delusional thinking and auditory hallucinations”. Professor Greenberg said that it was “far more likely than not that Mr Wells’ psychotic beliefs were highly influential on his behaviour”. The professor went on to comment that Mr Wells’ early interviews suggested “substantially deranged” thought processes. In our judgment, that is evidence of the type that Lord Hutton was specifically ruling was not sufficient to raise an issue.

If it was otherwise, how could the jury assess it? Self defence is subjective and if Mr Wells honestly believed that he was acting in that capacity, the extent to which it was reasonable for him to act would have to be judged according to that belief. That would generate the precise problem identified in para. 10 above. It might be possible to import into a s. 4A(2) hearing an objective test so that belief had to be judged by reference to a reasonable man unaffected by mental disorder, but that is not the law.

Having decided that there was no objective evidence of self defence, the decision in relation to Mr Allard (who did not himself provide any such evidence) followed. In the circumstances, although we grant leave to appeal, the appeal is dismissed. Should there come a time when Mr Wells is fit enough to stand trial, the Secretary of State can remit him pursuant to s. 5A(5) of the Act although given the unchallengeable evidence of diminished responsibility and the fact that he will have been the subject of a hospital order subject to restriction (which by remission will have lapsed), it may not be necessary or appropriate to do so.

On 13 March 2014, in the Crown Court at Woolwich before His Honour Judge Lees, Sarfraz Masud was found to be under a disability and unfit to plead to an indictment alleging attempted sexual assault contrary to s. 1(1) of the Criminal Attempts Act 1981 and common assault. A hearing was then undertaken pursuant to s. 4(A) of the Act in relation to whether or not he had committed the acts involved. After findings that he had, he was made the subject of a hospital order.

The circumstances can be summarized shortly. On 31 May 2013, Mr Masud was travelling on a bus when a 14 year old girl sat next to him. He reached out towards her and, it was alleged, attempted to touch her breast. When the girl and her mother (who was accompanying her) left the bus, he followed them down the street and into the restaurant where he was later arrested. The manner of the pursuit of the girl and her mother from the bus to the restaurant formed the substance of the common assault.

At the hearing, pursuant to s. 101 of the Criminal Justice Act 2003 (the 2003 Act), the Crown applied to admit three incidents of bad character. Having heard argument and correctly directing himself in relation to the provisions of s. 101 and the well known decision in R v Hanson, Gilmore & Pickstone[2005] EWCA Crim 824, the judge ruled that evidence of one only of those episodes should be admitted. The circumstances were then described in an agreed admission in the following terms:

In this appeal, Mr Daniel Bunting on behalf of Mr Masud complains that this evidence should not have been admitted and placed before the jury. In particular, he argues that the circumstances of this single conviction could not be properly relied upon to found a propensity to do the act with which the applicant was charged. The fact that he was under a disability rendered it all the more important that the judge should have been cautious prior to admitting it as he was in no position to seek to explain the circumstances of that offence. Furthermore, Mr Bunting submitted that the evidence was, in any event, so prejudicial that it was wrong for it to be placed before the jury.

The relevant gateway through which the judge permitted this evidence of the Defendant’s bad character to be admitted was s. 101(1)(d) and s. 103(1)(a) of the 2003 Act, that it was relevant to an important matter in issue between the defendant and prosecution because of his propensity to commit offences of the kind before the court. As this court observed in Hanson (at para. 9) there is no minimum number of events necessary in order to demonstrate propensity.

On the contrary, Hanson suggests that sexual offences with children represent a clear example of the kind of unusual behaviour where a single previous conviction may very well be capable of demonstrating a propensity so as to justify its admission as evidence of a subsequent similar charge. We are entirely satisfied in this case that the judge was correct to conclude that the bad character evidence which he admitted clearly showed a propensity given its unusual circumstances. It was a conviction relating to an opportunistic, comparatively minor sexual assault on a child in a public place with members of the public in the vicinity.

The judge also had to consider whether the admission of the evidence would have such adverse effect on the fairness of the proceedings that it ought not to be admitted: see s. 101(3) of the 2003 Act. Again, we are satisfied that his decision that it would not was entirely appropriate and well within the proper bounds of his discretion. As the judge noted, a strong case was established by the testimony of the girl and her mother, itself supported by CCTV footage. This was not a conviction which was being relied upon to bolster an otherwise weak or tenuous case. In addition, the judge was alive to the concern that whilst Mr Masud would not be able to provide any context or explanation for the conviction, it had followed a guilty plea and there is no suggestion that the factual basis for that plea was challenged.

It is worth noting that the judge refused to admit two other incidents of what the Crown contended constituted bad character demonstrating that he had the fairness of the proceedings very much in mind. In the circumstances, this application for leave to appeal is refused.

On 14October 2013, in the Crown Court at Woolwich, His Honour Judge Tomlinson found that Susan Hone was unfit to plead to an indictment alleging a single count of rape and two counts of sexual assault, in each of which she was jointly charged with Jeffrey Cormack. At a hearing conducted under s. 4A(2) jointly with the trial of the co-defendant, it was found that she had not done the acts charged as rape but had done the acts in relation to the two counts of sexual assault. Cormack was convicted of all three offences and sentenced to a total of six years’ imprisonment; she was made subject to a supervision order with conditions. She now appeals against the findings by leave of the single judge.

The complainant, M, and both defendants were all residents at a hostel which provided accommodation for those who suffered mental health difficulties: the appellant had lived at the hostel for between 4 and 6 years and Cormack had done so for some 12 years. On 2 August 2012, M came into the appellant’s room in order to have a meal with her: this had been purchased by Cormack who was the appellant’s boyfriend. After they had finished eating, M alleged that Cormack removed her clothing and performed oral sex on her whilst the appellant pinned her to the bed: this allegation formed the substance of count 3. M also contended that during the course of this activity, the appellant grabbed her breasts and pulled up her top (count 2). The complainant then alleged that, without her consent, Cormack had vaginal sex with her whilst the appellant pinned her down (which formed the substance of the allegation of rape in count 1).

The first point taken by Mr Philip McGhee, on behalf of the appellant, related to severance. At the fitness to plead hearing, and subsequently at the first day of trial, it was argued that the case of the appellant should be severed from that of Cormack. Relevant to this application was a further submission that the appellant should be permitted to adduce evidence which she had provided in the form of a prepared statement made shortly after the incident (and later in interview) to the effect that after Cormack had sex with M, he then went on to have non-consensual sex with her.

In the course of ruling on these matters, the judge considered the cases of R v B,W,S,H & W[2008] EWCA Crim 1997 and R v MB[2010] EWCA Crim 1684 to the effect that the principles in relation to severance applied as equally to hearings under s. 4A of the Act as they did to a criminal trial. In MB it was argued that failure to sever had led to substantial unfairness to an unfit defendant who was unable to defend himself from allegations being made by a fit defendant who was able to give evidence, in effect, against the unfit defendant.

Having ruled that the allegation of rape made by the appellant against Cormack should not be admitted, Judge Tomlinson dealt with the issue of severance in these terms:

Mr McGhee challenges this decision on the basis of the unfairness occasioned by the fact that the fit defendant, Cormack, would give evidence involving the appellant in the offences without her, as an unfit defendant, being able to contradict or provide balance in relation to those issues. This unfairness is coupled with the refusal to admit her allegation of rape which, it was submitted, was important evidence to contradict the suggestion that she would have been involved in the sexual assaults on the complainant.

The principles of severance are not in issue and we share the judge’s view that the present case was very far removed from the circumstances which had to be assessed in the case of MB. The critical feature is that in this case, Cormack was actively challenging the allegations, contending that all the sexual activity that occurred in the appellant’s room that evening was entirely consensual. Whilst therefore his account differed from that of the appellant, it was nonetheless an exculpatory account so far as they were both concerned.

In any event, other considerations are also relevant to the issue of severance. If severed, M would have been required to give evidence twice. Furthermore, the appellant’s account of what occurred was in fact before the jury both in the prepared statement but also in the form of a summary of her police interview. The jury were obviously aware that, as a result of her significant mental disabilities, she was not in any position to add to that account or participate in a trial. Weighing all of the relevant factors we are entirely satisfied that, in the exercise of his discretion, the judge was entitled to reject the application to sever the appellant’s case.

As for the admission (either in the prepared statement or the interview) of the allegation that after engaging in sexual activity with M, Cormack raped the appellant, we endorse the view of the judge that, besides being prejudicial to Cormack, this evidence was simply irrelevant to any of the issues which had to be tried. The allegation was that this occurred after the sexual activity with M had taken place: it could hardly have affected what she did with or to M which formed the basis of the charges the acts of which, in her case, the jury were considering.

The second point taken by Mr McGhee concerned the direction to the jury. No complaint is raised in this appeal in relation to the way in which the judge summed up the case to the jury in respect of one of the allegations of sexual assault which was charged as a principal. What is, however, challenged is the judge’s direction in relation to secondary participation (which concerned the allegation of rape and the second sexual assault). The judge pointed out that it was a precondition to a finding against the appellant on these counts that Cormack had first been first found guilty as the principal; it was only then that consideration could be given to secondary participation. As to that, he put the matter in this way:

The judge went on to reiterate these directions, in respect of both counts, using the language of facilitating the offence. The direction which has just been set out was also reinforced by the provision of a Route to Verdict provided in writing to the jury.

Mr McGhee contends that this direction did not go far enough and should have included a direction that the jury would need to be satisfied as to her state of mind or level of knowledge as to the activities of her co-accused at the time when she did the acts, in order for a positive finding to be reached within the meaning of s. 4A of the Act. It is argued that more than a mere physical act was required in the case of a secondary party, or aider or abettor, in order to render that act an “injurious” act which could properly found a conclusion that a person had done the act charged as the offence against them.

We do not agree. As is clear from what we have set out above, and from cases such as M(KJ), when directing the jury in relation to making a finding for the purposes of S4A of the Act, an inquiry into the state of mind or level of knowledge of the person concerned at the time when they did the acts or omissions comprising the offence is not required. The judge’s direction correctly focused on the acts of participation which were alleged against the appellant and accurately directed the jury to consider whether or not those acts facilitated the offences of which they had found Cormack guilty. Further, it is clear from the verdicts (acquitting the appellant of the allegation of rape and convicting her of secondary participation in sexual assault) that, having convicted Cormack of both, the jury were able to differentiate between his role and hers.

In our view, the judge’s direction which has been set out above aptly captured the requirements which the jury needed to be satisfied of in order to make the relevant finding. This appeal must therefore be dismissed.

On 27 May 2014, in the Crown Court at Harrow before His Honour Judge Barklem, the applicant, Tony Kail, was found unfit to plead to an indictment which charged sexual assault contrary to s. 3 of the Sexual Offences Act 2003. On 23 June, before His Honour Judge Arran, he was found by a jury to have committed the act alleged and subsequently absolutely discharged. His application for leave to appeal has been referred to the full court by the Registrar.

The circumstances of the allegation were that, on 4 August 2013, he and the complainant, T, (whom he had previously met at a disco) went to the home of Robert Hannuell to have dinner. Whilst at Mr Hannuell’s house, it was alleged that the appellant put his arms around T, touching her breasts and between her legs over her clothing. T told the appellant to stop and that she did not like it but he persisted.

During the hearing conducted under S4A of the 1964 Act to determine whether or not the appellant had committed the act alleged in the charge against him. Mr Hannuell was called by the Crown and cross examined by Mr Benjamin Newton who appeared for the appellant both at trial and before us. Given that this latter evidence is central to the grounds of appeal, it is necessary to set out the exchange:

Thereafter, it was submitted by Mr Newton that this material amounted to objective evidence which, applying the guidance from Antoine, justified the jury being directed that they needed to be satisfied not only that T did not consent to the touching but also that the appellant did not have a reasonable belief that she did consent to the touching. The judge rejected that submission and concluded that the material could be relied upon in relation to the question of actual consent, but that the jury did not need to be satisfied that the appellant did not have a reasonable belief that T consented before they could find that he had committed the acts of the offence for the purposes for S4A of the Act. In the event, he directed the jury that what they needed to be satisfied of (to the appropriate standard) was that the appellant deliberately touched T, that the touching was sexual and that she did not consent to it.

Mr Newton repeats the submission and argues that the judge’s approach was wrong in law. He submitted that the exchange set out above was objective evidence which gave rise to the contention that the jury could have found that the appellant reasonably believed that the complainant did consent to the touching. He seeks to distinguish the case of B(M) on the basis that there is a difference between the offence of voyeurism under s. 67(1)(b) of the Sexual Offences Act 2003 which requires knowledge that the person being observed does not consent, as opposed to the requirements of s. 3 of the 2003 Act which require a reasonable belief there is consent. Secondly, he seeks to distinguish voyeurism on the basis that it is distinct from sexual touching, which unlike voyeurism is commonly the precursor to consensual sexual activity.

We find the distinctions sought to be drawn by Mr Newton between the present case and B(M) unconvincing. In truth, there is no sensible distinction to be drawn between requirements, on the one hand, of knowledge of the consent of the person being observed in an offence of voyeurism and, on the other, reasonable belief that a complainant consents to sexual touching. Both involve an investigation into the state of mind of the unfit person which, following Antoine, is inconsistent with an enquiry under s. 4A of the Act as to whether or not he or she has done the act. Although we recognise that there are instances where it is difficult to distinguish between the actus reus of an offence and its mens rea, the question of a reasonable belief in the consent of the complainant to sexual touching clearly falls into the realm of the latter and does not require a finding in the context of s. 4(A) of the Act.

In any event, we are also far from satisfied that the evidence to which we have referred does raise objective evidence of the type identified by Lord Hutton. The exchange which has been set out above is not unequivocal evidence of a reasonable belief in consent although, as the judge observed and directed the jury, it was material which could properly be considered in relation to the issue of T’s consent. For these reasons, this application for leave to appeal is refused.

In the event, we find that the finding in each of these four cases is safe and in those cases in which leave is granted, the appeals are dismissed; otherwise, the applications are refused. In each case, however, we direct that the costs of the person appointed to advance the arguments on appeal are covered by Part IIIA of the regulations made under s. 19(3)(d) of the Prosecution of Offences Act 1985.